G.N. Johnston Equipment Co. Ltd.
Terms and Conditions of Sale
1. ACCEPTANCE: The following terms and conditions shall govern all sales of equipment and products (“Equipment”) and/or services (“Services”) of G.N. Johnston Equipment Co. Ltd. (“Seller”) pursuant to a quotation/proposal issued by Seller to buyer (“Buyer”) and signed by Buyer and Seller or a purchase order or other similar documentation issued by Buyer to Seller and accepted by Seller in writing (each, an “Order”). These terms and conditions will not apply to an Order if Buyer and Seller have entered into a separate written purchase and/or service agreement negotiated and signed by both Buyer and Seller and specifically identified in an Order, otherwise these terms and conditions supersede all prior or other written or oral agreements, understandings and representations between Buyer and Seller and together with an Order, comprise the entire agreement between Buyer and Seller with respect to the subject matter of such Order. Any inconsistent, conflicting or additional terms in Buyer’s purchase order or acknowledgement form or other similar documentation shall not apply to an Order. If the Buyer and Seller have not otherwise agreed to these terms and conditions, the shipment of any Equipment or the commencement of performance of any Services by the Seller will be deemed an acceptance by the parties of these terms and conditions, whichever occurs first. Subject to Section 12 of these terms and conditions, any quotation/proposal provided to Buyer is only valid for 30 days and thereafter is void. All sales of Equipment and Services are subject to credit approval.
2. TERMS OF PAYMENT: The purchase price of Equipment shipped or installed is due 10 days from the date of invoice and for Services 30 days from date of invoice, unless a different due date is specified in a written document signed by an authorized representative of Seller. Each shipment or delivery of Equipment or performance of Services is a separate and independent transaction for which an invoice may be issued by Seller and payment must be made by Buyer in accordance with these terms and conditions. If Buyer fails to fulfill the terms of payment of any prior invoice submitted by Seller or if in the sole discretion of Seller, Buyer’s financial condition becomes impaired or unsatisfactory, Seller reserves the right to change, with or without notice, the terms of payment and/or delay or discontinue delivery of the Equipment or performance of Services without prejudice to any other available legal remedies, until past due obligations are paid and Seller has received acceptable assurance regarding Buyer’s prompt payment of future obligations. Late payments for Equipment and/or Services are subject to an interest charge of the lesser of the rate of 24% per annum, the annual rate of interest specified in the invoice or the maximum amount permitted by applicable law. Buyer is liable to Seller for any expenses incurred to collect past due amounts, including reasonable legal fees and court costs. In the event of Buyer’s bankruptcy or insolvency, Seller is entitled to terminate any outstanding orders and to receive reimbursement for any costs and expenses incurred by Seller due to such termination. Buyer waives any right of set-off against any amount owed at any time by Buyer to Seller against any amount owed by Seller to Buyer.
3. CANCELLATION OF ORDER BY BUYER: If for any reason it becomes necessary for Buyer to cancel an Order placed with and accepted by Seller, it can be canceled only upon Seller’s consent and in such event Buyer agrees to indemnify Seller against all costs, expenses and losses in connection with such cancellation.
4. FORCE MAJEURE: The Equipment and Services quoted are subject to prior sale. Seller is excused from its obligations under an Order and these terms and conditions to the extent performance is delayed or prevented by strikes, accidents, fires, delays of carriers and other transportation disruptions, or other causes beyond Seller’s reasonable control.
5. TITLE AND SHIPMENT: Unless otherwise agreed to in writing all prices for Equipment shipped to Buyer are F.O.B. Shipping Point, whether such Equipment is shipped from Seller’s facilities or directly from the manufacturer. Method and route of shipment are at Seller’s or the manufacturer’s discretion, unless Buyer supplies explicit written instructions that are agreed to in writing by Seller or the manufacturer. Buyer shall be solely responsible for all cost and expense of shipment, including any insurance coverage. Risk of loss and title of all Equipment shipped shall pass to Buyer once the Equipment leaves Seller’s or the manufacturer’s shipping dock.
6. TAXES: The prices quoted by Seller do not include any sales, use, value added or any other Provincial, Federal or foreign taxes or duties. Any and all present and future taxes, duties, or other government charges, whether levied or assessed upon Buyer or Seller, including but not limited to sales, use, value added or personal property taxes, shall be paid by Buyer and Buyer shall reimburse Seller for any such taxes, duties or charges paid by Seller.
7. NONCONFORMITY: Buyer shall immediately inspect all Equipment shipped hereunder upon receipt of shipment or completion of installation, and in the event of any claims of nonconformity to the specifications set out in the applicable Order, shall provide Seller with immediate written notification, stating full particulars in support thereof. All claims by Buyer having anything to do with any Equipment or Services provided hereunder shall be made in writing within ten (10) days after the shipment, installation or completion of Equipment or Services, as the case may be, and failure of Buyer to give such notice shall constitute a complete defense for Seller against all such claims.
8. WARRANTIES: Warranties for the Equipment or Services sold hereunder are limited to: (A) those (if any) provided in writing for the benefit of Buyer by Seller’s supplier or the original manufacturer, and (B) those (if any) provided by Seller for Buyer’s benefit in a separate written document prepared and signed by Seller. Seller makes no warranty other than as set forth herein. Seller specifically disclaims all other warranties or conditions, express or implied, by law or otherwise, relating to the Equipment and Services sold hereunder, including without limitation the implied warranties and conditions of merchantability or fitness for a particular purpose or intended use. A warranty is expressly void without any further notice if any modification is made to the Equipment, the Equipment is damaged or if additional components or devices are added to the Equipment, without prior written approval from the authorized manufacturer or Seller, as applicable.
9. MODIFICATIONS: Modifications to any Equipment must be done per manufacturer’s specifications and instructions and the work must be performed by authorized and trained service providers. Modifications and additions which affect capacity shall not be performed without the written authorization of the manufacturer. Buyer or Buyer’s user shall not modify any Equipment in a manner which impacts its safe operation. Specifically, unauthorized modifications to Equipment may alter the function and safety of the machine. Third party manufacturers are responsible for developing, implementing and communicating written instructions for their products when used in combination with Equipment supplied by Seller. Capacity, operation and maintenance instruction, plates, tags or decals must be changed accordingly. Buyer acknowledges that any modification of the Equipment may impact warranties on the Equipment. Regardless of the legal theory (e.g., breach of contract or warranty, tort (including negligence), strict liability, statute or otherwise), Buyer acknowledges and agrees to defend, indemnify and hold harmless Seller and its subsidiaries and affiliates and their respective officers, directors, employees, agents and representatives (collectively, “Seller Indemnified Parties”) against all claims, losses, liabilities, damages and expenses, including legal fees, on account of any damage to the Equipment, personal or real property, injury or death of persons caused by or arising out of the modification of the Equipment. Buyer’s operator is responsible to inspect the Equipment before each use and ensure that the modification has not impacted the safe operation of the Equipment.
10. SELLER’S SECURITY INTEREST: Buyer hereby grants Seller a security interest in the Equipment purchased hereunder, as security for the full payment of the purchase price of such Equipment. If Seller requests, Buyer will execute any financing statement or other documents as required by Seller and pay all related costs necessary to protect Seller’s security interest. Buyer agrees that until the full purchase price is paid, the Equipment: (a) will not be altered, misused, abused, wasted or allowed to deteriorate; (b) will be insured against all risks to which they are exposed, including, but not limited to fire and theft: and (c) will not be sold, transferred or disposed of or be subjected to any third person, either voluntarily or involuntarily. In the event Buyer fails to comply with these terms and conditions, including the terms of payment set out herein, Seller shall have the right, without prejudice to any of its other rights granted by law, equity or contained herein, to: (a) enter Buyer’s premises without notice and take possession of the Equipment, or (b) require Buyer to make the Equipment available to Seller for repossession at a place designated by Seller, at Buyer’s expense.
11. LIMITATION OF LIABILITY AND INDEMNIFICATION: Notwithstanding any other provision in these terms and conditions, regardless of the legal theory (e.g., breach of contract or warranty, tort (including negligence), strict liability, statute or otherwise): (a) Seller’s aggregate liability arising out of or in any way related to an Order shall not exceed the total price paid by Buyer to Seller for the Equipment and/or Services under the applicable Order; and (b) Seller shall not be liable for anyindirect, special, incidental, punitive, exemplary or consequential loss or damages, or economic loss, including but not limited to loss of actual or anticipated revenue or profits, loss of production, loss of data or damage to business reputation. In connection with any Equipment or Services provided pursuant to an Order, Buyer agrees to indemnify and save Seller Indemnified Parties harmless from any and all claims, losses, liabilities, and damages, including reasonable legal fees, resulting from (i) injuries or death to persons or property damage arising from, growing out of, or connected with the use, distribution, disposal or operation of the Equipment and/or Services; (ii) any tortious acts, errors or omissions of Buyer; or (iii) any violation by Buyer of any applicable law or regulation.
12. PRICING: Some or all of the Equipment may be based on U.S. dollar price lists. Prices quoted are for prompt acceptance by Buyer and until approved and accepted by an authorized representative of Seller are subject to revision at any time. Prices are subject to change in the event of variation in duty, change in foreign exchange rate, sales, excise taxes or additional taxes or levies attributable to the Equipment and/or Services. All applicable taxes are extra and are not included in the purchase price of Equipment and/or Services.
13. TECHNICAL ASSISTANCE: Seller may furnish technical assistance and information as it has available with respect to the Equipment and/or Services. Unless otherwise agreed in writing, all such information is provided at no additional charge to Buyer. Buyer assumes sole responsibility for results obtained in reliance thereon and Seller provides no representation or warranty as to the accuracy of information provided, which shall be the sole responsibility of the Buyer to confirm.Buyer agrees that the Seller shall have no liability in connection with any loss or damage related to the technical assistance or additional information Seller may provide to Buyer.
14. PACKING AND PACKAGING: All Equipment will be packed and packaged in accordance with standard commercial packing and packaging methods of Seller. Any nonstandard or special packing or packaging requested by Buyer shall be at Buyer’s sole expense and must be approved by Seller in writing.
15. BUYER FACILITY: Seller’s representative may require access to Buyer’s facility. Seller’s access shall not be conditioned upon the signing of any agreement, waiver, or release which in any way attempts to conflict, negate or affect these terms and conditions. If Seller’s representative signs such an agreement, waiver, or release, it shall be considered void and have no force and effect. Seller will ensure all Seller’s representative(s) exercise due care to comply with any facility procedures generally applicable to personnel at the Buyer’s facility. Seller’s representative may exercise the “right-to-refuse” if in the discretion of the Seller’s representative the site and/or facility is unsafe, in accordance with applicable Provincial health and safety laws.
16. ASSIGNABILITY/CHOICE OF LAW: These terms and conditions are not transferable or assignable by Buyer, in whole or in part, including any transfer by a change in control, without the prior written consent of Seller. These terms and conditions and any dispute arising in connection therewith shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, and Buyer and Seller irrevocably and unconditionally attorn to the exclusive jurisdiction of the courts of the Province of Ontario. Buyer and Seller agree that provincial sale of goods legislation, to the extent permissible by law, and the United Nations Convention on Contracts for the International Sale of Goods, or any amendments thereto, do not apply.
17. LANGUAGE: The parties confirm that it is their express wish that these terms and conditions, as well as any other documents directly or indirectly relating to the Orders, including notices, schedules and authorizations, have been and shall be in the English language only. Les parties aux présentes confirment leur volonté expresse que cette convention, de même que tous les documents s’y rattachant, y compris tous avis, annexes et autorisations s’y rattachant, soient rédigés en langue anglaise seulement.
Revised June 2019