TERMS AND CONDITIONS - Sanderson Concrete

TERMS AND CONDITIONS

THESE TERMS AND CONDITIONS MUST BE READ CAREFULLY AND UNDERSTOOD AS IT AFFECTS THE CUSTOMER’S LEGAL RIGHTS AND IMPOSES CERTAIN OBLIGATIONS AND LIABILITIES ON THE CUSTOMER. THE CUSTOMER SHOULD BE AWARE OF ALL RISKS, CONDITIONS OF DELIVERY AND GENERAL CONDITIONS AS SET OUT IN THESE TERMS AND CONDITIONS.

1. DEFINITIONS

1.1 In these Terms and Conditions:

a) “Agreement” means collectively these Terms and Conditions, the Quote, any Invoices, and the Credit Application (if applicable);

b) “Customer” means the individual or company identified in the Quote and includes (as applicable) the Customer’s directors, officers, employees, representatives, legal personal representatives, successors and assigns;

c) “Credit Application” means any application for business credit entered into by the Customer and the Supplier;

d) “Crushing and Disposal Fee” means a fee for the Supplier disposing of any Products in accordance with Clause 4.10(b) or 4.10(d) hereof calculated as follows:

(i) Light Products (less than 2 tonnes and up to 15mm bar), 20% of the Price attributable to the Product;

(ii) Heavy Products (greater than 2 tonnes or larger than 15mm bar and less than 5 tonnes), 30% of the Price attributable to the Product;

(iii) Very heavy Products (greater than 5 tonnes), 50% of the Price attributable to the Product; and

(iv) Products containing foam, an additional 10% of the Price attributable to the Product in addition to the amounts set out in Clauses 1.1(d)(i) to (iii) above.

(e) Customer’s Representatives” means the Customer’s agents, contractors, subcontractors, consultants, employees, invitees and licensees and any owner of the Job-Site.

(f) “Customer Information” means any information that is generated or collected by the Supplier for the purposes of the Agreement, including the Customer’s identity and financial and other related personal information to determine creditworthiness (including credit reports).

(g) “Force Majeure Event” means an event of circumstance beyond a party’s reasonable control, including: (a) extreme abnormal weather conditions; (b) war, civil commotion or terrorist attack; (c) interruption or failure of a utility service; (d) acts of God, floods or earthquakes; (e) the imposition of a sanction, embargo or breaking off of diplomatic relations; (f) strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Supplier, the Customer, or of a third party); (g) acts of government or any other local authority; (h) epidemic or pandemic; (i) traffic delays and (j) in the case of Supplier only, non-performance or delay by any Supplier Representatives, including any shipping and other transport carriers; but expressly excluding lack of funds or other (a)                 financial matters. For certainty, any Force Majeure Event which applies to a Supplier Representative will be deemed to apply to the Supplier;

(h)                “Invoices” means any invoice or invoices issued by the Supplier to the Customer with respect to the Products and “Invoice” means any one of the Invoices;

(i)                 “Job-Site” means the address for the Customer’s job-site indicated in the Quote;

(j)                “Materials” means raw materials and/or essential products required by the Supplier to manufacture the Products;

(k)                 “Plant” means the Supplier’s plant where the Products are manufactured or where the Products are stored by the Supplier (in its sole discretion) prior to pick-up by, or delivery to, the Customer (as applicable);

(l)                  “Price” means the total purchase price for the Products and/or Services as set out in the Quote together with all taxes and fees;

(m)                “Products” means the product or products detailed in the Quote;

(n)                “Plans and Specifications” means the plans and specifications for the products provided by the Customer to the Supplier and attached to the Quote;

(o)                  “Quote” means the Quote executed by the Supplier and Customer for the supply of Products and attached to these terms and conditions;

(p)                  “Schedule” means the estimated period of time for the Supplier to manufacture the Products for pick-up or delivery, as set out in the Quote;

(q)                “Services” means any services included in the Quote including without limitation installation of the Products;

(r)                  “Supplier” means Sanderson Concrete. ; and

(s)               “Supplier Representatives” means any of the Supplier’s agents, contractors, material suppliers consultants and employees.

2. ACKNOWLEDGEMENTS

2.1 The Supplier’s agreement to supply the Products pursuant to the Agreement is subject to the Supplier’s review of the Customer’s credit worthiness (in the Supplier’s sole discretion).

2.2 The Customer expressly acknowledges and agrees that the Schedule and any other dates provided by the Supplier relating to the manufacture and/or delivery of the Products and the provision of Services by the Supplier are estimates only and under no circumstances will time be of the essence with respect to the manufacture or delivery of the Products or the provision of Services.

2.3 The Products may be manufactured and/or delivered to the Job-Site (as the case may be) by the Supplier in instalments unless otherwise expressly agreed in writing between the Supplier and the Customer. Failure by the Supplier to deliver any one or more instalments in accordance with the Agreement will not entitle the Customer to treat the Agreement as a whole as repudiated.

2.4 Notwithstanding anything to the contrary contained herein and including in particular but without limitation Clause 3.2 hereof, the Customer expressly acknowledges and agrees that:

a) the Supplier is not required to procure any Materials or begin manufacturing of any customized Products until the Deposit (as hereinafter defined) is paid by the Customer to the Supplier and the Supplier is not required to deliver any such Products until the Customer has paid the Second Deposit (as hereinafter defined) related to each of the Products; and

b) the estimates provided in the Schedule are contingent upon the Customer paying the Deposit and each of the Second Deposits (as hereinafter defined) immediately upon issuance of an Invoice for the same, and accordingly the Supplier will not be responsible for any delays resulting from the failure of the Customer to pay such Invoice(s) immediately.

2.5 If the price of Materials increases for any reason between the execution of the Quote and these terms and conditions by the Customer and the procurement of such materials and/or essential products by the Supplier, the Price will be adjusted to reflect such increase. The Supplier will notify the Customer in writing of such increase in the Price and the Customer agrees to pay such increased Price as set out in such notice.

2.6 The Quote may be revised, amended or revoked by the Supplier by notice in writing at any time prior to the Customer signing these Terms and Conditions. Without limiting the foregoing, the Customer acknowledges and agrees that the Quote is only valid for (30) days from the date of issuance and must be re-affirmed by notice in writing to the Customer if the Customer does not sign and deliver these Terms and Conditions within thirty (30) days from the date of issuance.    

2.7  In manufacturing and (if applicable) delivering the Products, the Supplier will be entitled to use such Supplier Representatives as the Supplier, in its sole discretion, may determine.

3. PAYMENT

3.1  For any Products which are non-customized, the Customer will pay the Supplier 10 % of the Price attributable to the Products upon execution of the Quote and these Terms and Conditions. The Supplier will provide an Invoice to the Customer for the remainder of the Price attributable to each of the Products and any delivery charges set out in the Quote (if applicable) upon the earlier of (i) the date that such Products are delivered by the Supplier to the Job-Site or the date the Products are picked up from the Plant by the Customer (as applicable), and (ii) the date for delivery or pick-up of the Products set out in the Quote.

3.2 For any customized Products, the Customer will pay the Supplier 50% of the Price attributable to the Products (the “Deposit”) immediately upon the execution of the Quote and these Terms and Conditions by the Customer. The Supplier will issue an Invoice to the Customer for an additional 40% of the Price attributable to each of the Products once each such Product is manufactured (each a “Second Deposit” and collectively, the “Second Deposits”). The Supplier will issue an Invoice to the Customer for the remainder of the Price for each of the Products and any other amounts set out in the Quote upon the earlier of (i) the date that such Products are delivered by the Supplier to the Job-Site or the date the Products are picked up from the Plant by the Customer (as applicable), and (ii) the date for delivery or pick-up of the Products set out in the Quote.

3.3 The Supplier may at any time issue the Customer an Invoice for the Price attributable to any Services following completion of the Services or any part thereof.

3.4 Except as otherwise expressly set out herein, any Invoice issued by the Supplier will be due and payable within thirty (30) days of the date of the Invoice.

3.5 Each Invoice will be deemed correct unless the Customer notifies the Supplier in writing of any errors within thirty (30) days from the date of such Invoice.

3.6 Unless otherwise indicated, the Price excludes applicable taxes, fees, duties and surcharges. The Customer is solely responsible for the payment of all such amounts.

3.7 A convenience fee of 2.4% will be applied to all payments made via credit card.

3.8 Without limiting the Supplier’s other rights and remedies, interest will be charged at the rate of 2.5% per month (30% per annum) on the balance of overdue accounts unpaid after thirty (30) days from the Invoice date, calculated daily, commencing on the first day that the Customer’s account is overdue and accruing until such arrears are paid in full. The Customer agrees that interest on its account will accrue in accordance with the terms of these Terms and Conditions both before and after judgment.

3.9 The Customer’s payments will be applied firstly against any outstanding interest charges, secondly against any service charges, and lastly to the outstanding principal of the Invoice.

3.10 The Customer will pay all fees, expenses and disbursements (including legal fees on a solicitor-and client basis) incurred by the Supplier in connection with collecting any overdue accounts.

3.11 The Customer grants to the Supplier a security interest over all Products supplied to the Customer by the Supplier and over all of the Customer’s present and after-acquired personal property and assets as security for payment of all present and future Invoices issued to the Customer hereunder and performance of all present and future obligations of the Customer to the Supplier from time to time. The Customer waives its right to receive any financing statement or verification statement relating to any registration of such security interest.

3.12 All amounts due under the Agreement will be paid in full without any set-off, deduction or counterclaim of any kind, including without limitation in relation to any delays in the manufacture or delivery of the Products.

4. DELIVERY

4.1 Unless otherwise set out in the Quote, all Products purchased by the Customer will be from the Plant, and all risk related to the Products transfers to the Customer upon such Products being loaded onto the Customer’s or the Customer’s Representatives’ transport vehicle.

4.2 If the Quote indicates that the Products are F.O.B. destination, all risk related to the Products transfers to the Customer upon such Products being unloaded from the Supplier’s or the Supplier’s agent’s transport vehicle at the Job-Site.

4.3 THE SUPPLIER DOES NOT GUARANTEE DELIVERY TIMES AND WILL NOT ACCEPT OR AGREE TO ANY BACK CHARGES RELATED TO ANY DELAY IN DELIVERY. Delivery to the applicable Job-Site is limited to the Supplier’s vehicles remaining on the nearest publicly travelled roadways to the Job-Site, unless otherwise requested by Customer and agreed to in advance by the Supplier. Should the Customer request delivery beyond public roadways, suitable and safe approaches must be provided satisfactory to the Supplier in its sole discretion. The Supplier’s drivers will NOT attempt any unsafe, or, in their sole and absolute discretion, potentially unsafe approaches to the Job-Site. Deliveries which require the Supplier’s vehicles to travel beyond public roadways are the sole responsibility of the Customer and the Customer will be solely responsible for any damages caused to sidewalks, driveways or other property as a result thereof.

4.4If the Products are being delivered to the Job-Site by the Supplier, the Customer will be solely responsible for removing any Products from the Supplier’s vehicle and providing all equipment therefor, except as indicated otherwise in the Quote.

4.5I f delivery is included in the Quote, the Price attributable to delivery includes up to a maximum of 1-hour unloading time for each delivery of Products, and if any delivery exceeds such time the Customer will be responsible for any costs incurred by the Supplier with respect to same (including without limitation the Supplier’s then customary rates for any employees/equipment used in such delivery). Unless expressly included in the Quote, the Customer further agrees to pay surcharges for delivery time outside of the Supplier’s regular operating hours of 7:00am to 4:00pm (Monday to Friday, excluding statutory holidays) based on the Supplier’s then customary rates and including any costs incurred by the Supplier as a result thereof. For the purposes of these Terms and Conditions “delivery time” means the time the delivery vehicle leaves the yard gate at the Plant until the time it returned to such Plant.

4.6 The Customer will be responsible at its sole cost for all clean-up which is required as a result of the Supplier’s vehicles tracking materials, dirt or debris of any kind from the Job-Site back onto public or private property or roadways resulting from the applicable delivery. In the event the Customer is, by its method of unloading or otherwise, following a course of conduct which in the opinion of the Supplier (in its sole discretion) is likely to cause damage to the Supplier’s trucks and/or equipment, the Supplier may suspend any delivery without notice or compensation to the Customer.

4.7Notwithstanding anything to the contrary contained in the Agreement, the Customer expressly acknowledges and agrees that the manufacture and/or delivery of the Products may be delayed or suspended in the event of (i) any agreed upon requests for changes to the Products by the Customer in accordance with the Agreement, (ii) any delays in or non-fulfillment of the Customer’s obligations set out in the Agreement, and/or (iii) any Force Majeure Event, including without limitation any delays or difficulties in the Supplier procuring Materials required to manufacture and supply of the Products.

4.8 Within _____ days of the later of i) the date(s) set for pick-up or delivery of the Products set out in the Schedule, and ii) the Supplier providing written notice to the Customer that the Products are available for pick-up or delivery, as applicable, the Customer will either pick-up or make itself available for delivery of the Products at such date(s)/time(s) as mutually agreeable between the parties each acting reasonably.

4.9 Unless explicitly set out in the Quote and notwithstanding anything contained herein, if the Supplier is responsible for delivering the Products to the Job-Site, the Supplier may choose not to deliver any Products to the Job-Site until all Products are ready for delivery.

4.10 If the Customer has not picked up any of the Products or made itself available to receive delivery of the Products, as the case may be, in the time frames in accordance with Clause 4.8 hereof, then in addition to any other rights the Supplier may have hereunder:

a) the Supplier will arrange for the storage of the Products and charge the Customer a storage fee calculated at 5% per month of the Price of each such Product, pro-rated for any partial period, until the Customer picks-up or accepts delivery of the Products; and

b)  if any customized Products remain at the Plant longer than 180 days, the Supplier may dispose of such Products and charge the Customer the Crushing and Disposal Fee;

and all such amounts will be payable by the Customer to the Supplier on demand.

4.11 The Customer will be charged a deposit of $40 per pallet for any Products delivered or made available for pick-up by the Customer on a pallet, which deposit will be refunded when the pallet(s) are returned to the Supplier by the Customer in a useable and saleable condition. The Customer must present the Invoice related to such deposit in order to be entitled to a refund.

5. Changes

5.1 The Customer is solely responsible for providing the Supplier with accurate Plans and Specifications for any customized Products. If the Customer wishes to make any changes to the Plans and Specifications:

(a) any such changes will be subject to the approval of the Supplier;

(b) any such changes may result in an increase in the Price and/or an extension of the Schedule by such period of time as determined by the Supplier as deemed necessary to accommodate such changes;

(c) if any such changes to the Plans and Specifications are approved by the Supplier, before implementing any such changes to the Plans and Specifications and any resulting changes to the Products, the Supplier and the Customer will enter into a “change order” amendment to the Agreement pursuant to which the Customer will agree to the new Price (including any additional costs or expenses incurred by the Supplier as a result of such changes) and the estimated changes to the Schedule and any other time frames set out in the Agreement; and

(d) Without limiting Clause 5.1(c) hereof, if the Supplier has already commenced manufacturing one or more of the Products, any such Products must be paid in full and unless the Customer picks up or accepts delivery of such Products (as applicable) in accordance with Clause 4.8 hereof, the Supplier will be entitled to dispose of such Products and the Customer will pay to the Supplier the Crushing and Disposal Fee.

For certainty, if the requested changes to the Plans and Specifications (and any resulting changes to the Products) are not approved by the Supplier, and/or if the Customer does not agree in writing to the resulting changes in the Price and/or Schedule, then the Plans and Specifications and the Products will remain as set out in the original Quote.

5.2 If any plans and specifications in the Quote differ from the Plans and Specifications provided by the Customer, the Supplier may revise the Quote and correct the Price set out therein.

5.3 If the Customer wishes to make any changes to the Services:

(a) any such changes will be subject to the approval of the Supplier;

(b) any such changes may result in an increase in the Price and/or an extension of the Schedule by such period of time as determined by the Supplier as deemed necessary to accommodate such changes; and

(c) if any such changes to the Services are approved by the Supplier, before implementing any such changes to the Services, the Supplier and the Customer will enter into a “change order” amendment to the Agreement pursuant to which the Customer will agree to the new Price (including any additional costs or expenses incurred by the Supplier as a result of such changes) and the estimated changes to the Schedule and any other time frames set out in the Agreement.

For certainty, if the requested changes to the Services are not approved by the Supplier, and/or if the Customer does not agree in writing to the resulting changes in the Price and/or Schedule, then the Services will remain as set out in the original Quote.

 

6. CUSTOMER RESPONSIBILITIES

6.1 If the Customer is providing any Services, unless otherwise set out in the Quote, the Customer will, at its sole cost:

(a) prepare the Job-Site for installation of the Products by the Supplier, including without limitation:
(i) obtain and maintain all necessary licences, permits and consents which may be required for preparation of the Job-Site and installation of the Products;
(ii) construct any and all required infrastructure works for the installation of the Products;
(iii) obtain any and all required geotechnical and civil engineering approvals of all such works;
(iv) unless otherwise provided in the Quote, design, fabricate and install perimeter safety guards;

(b) provide all equipment necessary for the safe installation of the Products;

(c) provide the Supplier Representatives with unrestricted access to the Job-Site and with such information, equipment and materials as the Supplier may reasonably require to provide the Services; and

(d) keep all materials, equipment, documents and other property of the Supplier at the Site in safe custody and in good condition, at its own risk, until returned to the Supplier.

6.2 The Customer will ensure that the Job-Site is ready for the provision of Services within days of the date(s)/time(s) for provision of the Services set out in the Schedule on such date(s)/time(s) as mutually agreeable between the parties each acting reasonably. The Customer shall ensure that the Customer has uninterrupted access to the Job-Site to complete such Services in a normal uninterrupted single shift operation during the Supplier’s regular operating hours of 7:00am to 4:00pm (Monday to Friday, excluding statutory holidays).

6.3 With respect to the Customer preparing the Job-Site for installation of the Products pursuant to the Agreement and in particular Clause 6.1 hereof, the Customer shall be solely responsible for all acts and omissions of

the Customer’s Representatives and without limiting the generality of the foregoing will ensure that all of the Customer’s Representatives:

(a) as and where applicable, fully cooperate with the Supplier and the Supplier Representatives in respect of the Supplier providing the Services; and

(b) do not do anything or omit to do anything which would interfere with or delay the provision of the Services by the Supplier or the Supplier Representatives.

6.4 Upon the Customer preparing the Job-Site for installation of the Products pursuant to Clause 6.1 hereof, the Customer will provide written notice to the Supplier confirming such Site preparation is complete, it being expressly acknowledged and agreed by the Customer that the Supplier will not be obligated to commence the Services unless and until the Site has been prepared to the Supplier’s satisfaction pursuant to Clause 6.1(a) hereof and the Customer has provided written notice thereof to the Supplier pursuant hereto.

6.5 If the Customer or any of the Customer’s Representatives, or any other party for whom the Customer is responsible, fails to complete any and all preparatory work required to be completed on the Site in accordance with the Agreement and the requirements of Clause 6.1 hereof, the Supplier will be entitled (but will be under no obligation) to prepare same and will charge the Customer all related costs and expenses incurred by the Supplier in so doing plus ten percent (10%) thereof (including Taxes), all of which amounts will be payable by the Customer to the Supplier on demand. The Supplier will be under no liability whatsoever for anything that occurs as a result of the Customer’s failure to prepare the Site for installation of the Products pursuant to the Agreement and in particular Clause 6.1 hereof.

6.6 The Supplier will notify the Customer if the Supplier reasonably believes the condition of the Site or the conduct of the Customer is prejudicial to the health and safety of the Supplier Representatives. If the Customer fails to act on such notification, the Supplier’s Representative’s will be entitled to leave the Site until the Customer corrects the safety concern and suspend provision of the Services in accordance with Clause 6.7 hereof. For certainty, if the Customer fails to act on such notification provided by the Supplier to the Customer pursuant to this Clause 6.6, and the Supplier instructs the Supplier Representatives to leave the Site, any and all costs and expenses incurred by the Supplier for the provision of Services at such time, and any and all costs associated with delays caused by the Customer’s failure to act on such notification provided by the Supplier pursuant to this Clause 6.6 will be payable by the Customer to the Supplier on demand.

6.7 If the Supplier’s performance of the Services is prevented or delayed by any act or omission by the Customer, the Customer’s Representatives or any other party for whom the Customer is responsible, then:

(a) without limiting or affecting any other right or remedy available to the Supplier, the Supplier will have the right to suspend performance of the Services until the Customer, the Customer’s Representatives or any other party for whom the Customer is responsible remedies such default;

(b) where a time has been stated for provision of the Services, the Supplier will be entitled to extend that time accordingly;

(c) the Supplier will not be liable for any costs or losses sustained or incurred by the Customer, the Customer’s Representatives, or any other party for whom the Customer is responsible arising directly or indirectly from the Supplier’s failure or delay in performing any of its obligations; and

(d) the Customer will reimburse the Supplier on written demand for any and all costs, expenses, losses or damages sustained or incurred by the Supplier arising directly or indirectly from the Customer’s default.

7. PRODUCT ACKNOWLEDGEMENTS

7.1 The Customer expressly acknowledges and agrees as follows:

(a) Efflorescence is a naturally occurring salt deposit that can form when water is present in or on natural raw materials such as, but not limited to, brick, concrete, stone, and stucco. Efflorescence should dissipate under normal exterior conditions. The Supplier will not have any liability should efflorescence appear within Products manufactured by the Supplier or any of its Supplier Representatives;

(b) Occasionally, natural raw materials used to produce the Products will exhibit shade variations, and due to production timelines and schedules, the Supplier cannot guarantee perfect colour matching across entire orders or cladding elevations, and will not have any liability therefor; and

(c) All Products are subject to industry tolerances as set forth by the Precast/Prestressed Concrete Institute or the Canadian Standards Association (as applicable).

8. WARRANTY

8.1 Seller warrants only that, for a period of one (1) year from pick-up or delivery of each of the Products (as applicable), such Product(s) shall be free from material defects in workmanship. EXCEPT AS EXPRESSLY PROVIDED HEREIN, SELLER DOES NOT MAKE AND SPECIFICALLY EXCLUDES AND DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR ARISING BY TRADE USAGE OR COURSE OF DEALING, INCLUDING WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY IMPLIED INDEMNITIES.

This warranty will be automatically void if:

(A) The Customer fails to pay any or all amounts due hereunder as and when due; or

(B) The Customer fails to provide written notice of the alleged material defect to the Supplier within seventy-two (72) hours of discovery of the alleged material defect by the Customer.

9. LIABILITY AND INDEMNITY

9.1 In addition to any other indemnities provided by the Customer in the Agreement, THE CUSTOMER WILL INDEMNIFY, HOLD HARMLESS AND DEFEND THE SUPPLIER AND THE SUPPLIER REPRESENTATIVES AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, CONTRACTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, SHAREHOLDERS, SUCCESSORS, AND PERMITTED ASSIGNS (collectively, the “Indemnified Parties”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including legal fees on a solicitor and client basis, that are incurred by any of the Indemnified Parties, arising out of or related to:

(a) any breach or non-fulfilment of any provision of the Agreement by the Customer or its agents;

(b) any failure by the Customer or its agents to comply with any applicable federal, provincial, or territorial laws, regulations or codes, including without limitation environmental laws or regulations, in the performance of its obligations under the Agreement; or

(c) the Customer’s control, use, possession, transportation or ownership of the Products, including without limitation any removal of the Products from the Supplier’s or the Supplier’s Representative’s vehicle upon delivery of the Products.

For greater certainty (and without limiting the survival of any other obligation or liability of the Customer), this provision will survive the expiry or earlier termination of the Agreement.

9.2 The Customer expressly acknowledges and agrees that, unless otherwise expressly stated in these Terms and Conditions:

(a) The Supplier will not be liable for any damage to any property whatsoever caused by the Products after they have been picked up by, or delivered to, (as applicable) the Customer or if the Supplier is providing any Services with respect to any Products, after the provision of any Services related to any such Products;

(b) In no event will the Supplier be liable to the Customer or any of the Customer’s Representatives or to any third party for any loss of use, revenue, or profit, or for any consequential, incidental, indirect, exemplary, special, aggravated, or punitive damages whether arising out of breach of contract, tort (including negligence), or otherwise, regardless of whether such damage was foreseeable and whether or not such party has been advised of the possibility of such damages; and

(c) In no event will the Supplier’s aggregate liability arising out of or related to the Agreement, whether arising out of or related to breach of contract, tort (including negligence), or otherwise, exceed 100% of the Price.

The Customer expressly acknowledges that the Supplier is making the Products and/or Services available to the Customer in reliance on the limitations and exclusions of liability and the disclaimers set forth herein and that the same form an essential basis of the Agreement between the Customer and the Supplier. The Customer expressly agrees that the limitations and exclusions of liability and the disclaimers set forth herein will survive the termination or expiration of the Agreement.

10. FORCE MAJEURE

10.1 Neither party will be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure results from a Force Majeure Event.

11. TERMINATION

11.1 In addition to any remedies that may be provided under the Agreement or at law, the Supplier may terminate the Agreement with immediate effect upon written notice to the Customer, if the Customer:

(a) fails to pay any amount when due under the Agreement as and when due;

(b) has not otherwise performed or complied with any of the terms of the Agreement, in whole or in part; or

(c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors; or

(d) exhibits other adverse credit conditions that are unsatisfactory to Supplier (in the Supplier’s sole discretion).

11.2 In addition to the foregoing, the Supplier may terminate the Agreement by notice in writing to the Customer upon the occurrence of a Force Majeure Event where the period of delay or non-performance continues for longer than three (3) months.

11.3 On termination of the Agreement for any reason the Customer will pay to the Supplier:

(a) all sums due but unpaid at the date of termination;

(b) any costs and expenses incurred by the Supplier in collecting such sums; and

(c) any losses or damages incurred by the Supplier as a result of such termination.

12. PRIVACY

12.1 The Customer agrees that the Supplier may use the Customer Information, and grants the Supplier, its affiliates, and its third-party suppliers the right to collect, maintain and use the Customer Information as needed to provide all services pursuant to the Agreement, including without limitation, to collect, maintain and use the Customer Information to assess the Customer’s creditworthiness and to collect payments required to be made by the Customer to the Supplier pursuant to the Agreement. The Supplier may disclose the Customer Information to outside parties when the Supplier has a good faith belief that disclosure is reasonably necessary to:

(a) comply with any applicable law, regulation or compulsory legal request;

(b) protect the safety of any person from death or serious bodily injury;

(c) prevent fraud or abuse against the Supplier or its affiliates or third-party suppliers;

(d) protect the Supplier’s property rights; or

(e) defend the Supplier, its affiliates, or any Supplier Representatives from any legal proceedings arising out of the Customer’s use of the Products

13. ARBITRATION

13.1 Should there be a disagreement or a dispute among or between any of the parties hereto in respect of the Agreement, the interpretation hereof, or any matter arising pursuant hereto, any of the parties hereto may refer such disagreement or dispute to a single arbitrator pursuant to the Arbitration Act (British Columbia), and the determination of such arbitrator will be final and binding upon the parties hereto. This provision will be deemed to be a submission to arbitration in accordance with the Arbitration Act.

14. NOTICE

14.1 Any notice required or permitted to be given hereunder will be in writing and may be given by delivering, sending by email, sending by courier service, or sending by prepaid registered mail posted in Canada, the notice to the address or email address of each of the parties set out in the Quote (or to such other address or email address that any party may specify by notice in writing to the other in accordance with this provision). Any notice sent by email or couriered on a business day will be deemed conclusively to have been effectively given on the day the notice was delivered, or the email transmission was sent successfully to the email address set out above, as the case may be. Any notice sent by prepaid registered mail will be deemed conclusively to have been effectively given on the third business day after posting; but if at the time of posting or between the time of posting and the third business day thereafter there is a strike, lockout, or other labour disturbance affecting postal service, then the notice will not be effectively given until actually delivered.

15. GENERAL

15.1 No consent or waiver, express or implied, of the Supplier to or of any breach or default by the Customer in the performance of any obligation on its part hereunder will be deemed or construed to be a consent or waiver to or of any other breach or default of such obligation or a consent or waiver to or of any other obligation of the Customer. Further, the failure of the Supplier to exercise any right, power or other advantage pursuant to the Agreement, or to insist upon the strict compliance with the provisions of the Agreement, is not, and is not deemed to be, a waiver of any of the provisions of the Agreement in respect of any subsequent or continuing breach of the Agreement, nor a waiver of the right to require strict compliance with all provisions of the Agreement.

15.2 Except as otherwise set out herein, time is of the essence of the Agreement.

15.3 The Agreement constitutes the entire contractual terms under which the Supplier will sell and provide the Products to the Customer, and there are no representations, warranties, terms, conditions, undertakings or collateral agreements (express, implied or statutory) relating to the subject matter of the Agreement other than as set forth in the Agreement. If there is a conflict between the terms of documents forming part of the Agreement, the order of precedence in ascending order will be: (i) these Terms and Conditions, (ii) the Quote, (iii) any Invoice and (iv) the Credit Application, unless otherwise expressly stated in the Quote. The Agreement may only be modified through a written agreement between the parties. Statements by the Supplier’s employees and representatives do not constitute representations or warranties of the Supplier and accordingly should not be relied upon by the Customer.

15.4 The Customer agrees that all matters relating to the Agreement will be governed by the laws of the Province of British Columbia and the federal laws of Canada applicable therein, without reference to conflict of law principles.

15.5 If any provisions (or part thereof) of the Agreement is determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, such determination will not affect the remaining provisions (or parts thereof) of the Agreement, which will remain in full force and effect.

15.6 The Agreement may be executed by any form of electronic communication producing a printed copy.