Streamline Process Management General Terms and Conditions of Sale

Acceptance. The Buyer’s purchase order (“Order”) constitutes an offer by Buyer to purchase Goods and/or Services in accordance with these Terms and Conditions (“Terms”). The Order shall be deemed to be accepted when Seller issues written acceptance of the Order at which point and on which date the Agreement shall come into existence. Any quotation given by the Seller shall not constitute an offer. A quote is only valid for a period of 30 days from the date of issue unless the Seller agrees in writing to extend that period.
Buyer’s Assent. Shipment by Seller and acceptance by Buyer of, or payment for all or any part of the Goods (as defined below) and/or Services (as defined below) covered by the Order shall constitute Buyer’s assent to all of the Terms herein. Prior to acceptance of Goods and Services by Buyer, Seller may withdraw or modify its conditional acceptance of the Order.
Complete Agreement. The Agreement along with these Terms (collectively referred to herein as the “Agreement”) constitutes the entire agreement between the parties and supersedes all prior agreements with respect to the Goods and Services whether such agreements were written or oral. These Terms apply to the Agreement to the exclusion of any other terms that Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. Seller may amend these Terms at any time at its sole discretion. These Terms shall apply to the supply of both Goods and Services except where application to one or the other is specified. Special terms may apply with respect to software support services and/or other specific services if agreed between the parties.
Modification. No modification, amendment, extension, renewal, rescission, discharge, abandonment, waiver or other change or alteration shall be valid, enforceable or binding on Seller unless agreed to in writing by both Parties. Seller shall not be bound by any additional or different terms, whether printed or otherwise, in the Order or any other communication from Buyer to Seller unless specifically agreed to by Seller in writing. Prior courses of dealing, usage of the trade, and verbal agreements not reduced to writing and signed by Seller, to the extent that they modify, add to, or detract from the Agreement, shall not be binding on the Seller. Seller may, at its option, treat any attempted modification, termination or repudiation by Buyer to which Seller does not assent as a breach of the entire Agreement and claim all proper damages.
Termination. Any termination of this Agreement by the Buyer prior to the dispatch of Goods shall be effective only if made in writing and accepted by Seller. The Seller is under no obligation to issue credit on returned Goods if they were correctly supplied. No credit shall be issued for Goods built to customer specific plans and specifications. Credit shall not be issued for an instrument that is older than one (1) year. All returned items are subject to a restocking fee. In addition to the restocking fee, cancelled orders and shipments for Goods are subject to a cancellation charge as follows:
1. From time of Order receipt to time of order release to the production facility: 10% of Order value.
2. From time of Order release to production facility up to ten (10) days later: 30% of Order value.
3. Between 11 – 20 days after release of Order to production facility: 40% of Order value.
4. Between 21 – 25 days after release of Order to production facility: 50% of Order value.
5. Any time after 26 days following the release of the Order to the production facility: 100% of the Order value.
6. Technical Special Products, third party products, and software products will bear a cancellation charge of 100% of the Order value for any cancellation after the Order is released by the Seller to the production facility, third party, or manufacturer.
7. Nuclear product orders may face an additional cancellation charge in excess of 100% of the Order value for the cost of temporary storage and subsequent disposal of the nuclear source.
8. Cancellation or suspension of any order for Services by Buyer with less than 48 hours prior notice before the scheduled time of Service shall be subject to a cancellation charge of $600.00/planned day plus any additional indirect or direct costs incurred by the Seller in good faith reliance upon the Order.
9. Cancellation of training services shall be subject to Seller’s standard and customary cancellation fees. A copy of these fees is provided at the time of the submission of the proposal. Buyer may substitute participants in lieu of cancelling at any time up to the start of training for no charge.
10. In the event Buyer cancels project and solutions business that involves project management, technical drawings, design work and/or technical documentation, Buyer shall be charged for the actual costs incurred by Seller prior to receipt of the notice of termination (including labour cost) for the project or solution, in an amount not to exceed the original quoted value for the Services.
11. The cancellation charges listed above are in addition to, and not in lieu of, any other rights and remedies Seller possesses under this Agreement, at law, or in equity. Seller shall not be limited from pursuing any such remedies and cancellation and/or termination by Buyer shall not relieve it from paying all costs incurred by Seller in good faith reliance upon the Order, including, but not limited to, the costs of any third-party materials, products, or services purchased by Seller to fulfill its obligations hereunder. Seller shall be entitled for reimbursement for the price in the Order for all Goods assembled and Services performed prior to the termination as well as an allowance for reasonable overhead and profit on the not yet completed portion of the Order. Seller shall also be entitled to retain any and all payments and/or deposits received by it from Buyer under this Agreement in the event of a cancellation/termination and shall be entitled to retain copies of all data, information, and documents received hereunder, regardless of form and whether or not modified or merged into other information or materials.
Price, Payment Terms, and Security Interest. The price for Goods shall be the price set out in the Order confirmation. The price of the Goods is exclusive of all costs and charges of packaging, insurance, and transport of the Goods. The charges for Services shall be based either upon on a time and materials basis or a quoted lump sum basis and shall be calculated in accordance with Seller’s standard daily fee rates and service rate schedule, which is available upon request. The price for Goods and Services are collectively hereinafter also referred to as the “Prices”. Seller’s quoted Prices may be subject to change and are subject to Seller’s standard annual price increases. Seller will notify Buyer of any Price increase. In particular, due to volatility in the exchange markets, the Seller may adjust the Canadian dollar sale price if the Canadian/United States dollar rate has been fluctuated by 2% or more between the date of the quote and the date of the order. Quoted prices for nuclear isotope products are subject to review and adjustment to reflect current market conditions at the time the order is released to production facilities. Unless provided otherwise on the face of this Agreement, Buyer shall pay the purchase price for the Goods and Services in full within 30 days from date of shipment. If credit is not approved, payment shall be due upon delivery. Buyer shall pay all amounts due under this Agreement in full without any set-off, counterclaim, deduction, or withholding except as required by law. Seller may, without limiting its other rights or remedies, set off any amount owing to it by Buyer against any amount payable by Seller to Buyer. All invoices not paid when due will thereafter be subject to a monthly service charge of two percent (2%) of the unpaid balance. If, in Seller’s opinion, there is a material, adverse change in Buyer’s financial condition or if Buyer has not, within the agreed time, fully paid for Goods shipped and Services performed under this or any other agreement with Seller, Seller reserves the right to revoke Buyer’s credit, to require shipment of Goods C.O.D., and/or to suspend performance on this and/or other agreements and/or future shipments. Buyer hereby grants Seller a purchase money security interest in the Goods until the full purchase price is paid, and Buyers appoints Seller as its attorney-in-fact for the purpose of filing any documents necessary or desirable to perfect such security interest in any applicable jurisdiction.
Services. In the event services are provided to Buyer by Seller, Seller will provide services (“Services”) to Buyer in accordance with the Buyer’s service specifications and these Terms. However, Seller shall not be obligated to perform Services as a result of malfunctions of the Goods caused by: (a) the deliberate or negligent acts of persons other than the Seller; (b) inadequate facilities of Buyer; (c) systems or equipment outside Seller’s control (such as those provided by vendors of utilities), and (d) modifications to the Goods made by a party other than the Seller. Seller shall have the right to make any changes to the Services that are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Seller shall notify the Buyer in any such event. Buyer shall provide Seller with reasonable access to its premises as necessary for Seller to perform the Services. At all times Seller’s personnel will comply with Buyer’s safety and security precautions, procedures, and guidelines. Seller will immediately inform Buyer of any injury or accident occurring on Buyer’s premises involving Seller’s personnel. Seller will provide Services in a manner as to minimize interference with Buyer’s operations. Buyer shall cooperate with the Seller in all matters relating to the Services and provide the Seller with such information and materials as the Seller may reasonably require to supply the Services, and ensure that such information is accurate in all material respects. Seller shall have the right to rely on information and materials provided by Buyer and Seller shall not be liable for Services performed, provided that such Services are provided in accordance with Buyer’s specifications. Buyer shall obtain and maintain all necessary licenses, permissions and consents which may be required for the Services to be performed prior to the date on which the Services are to start, and keep and maintain all materials, equipment, documents and other property of the Seller (“Seller Materials”) at the Buyer’s premises in safe custody at its own risk, and in good condition until returned to the Seller, and not dispose of or use the Seller Materials other than in accordance with the Seller’s written instructions or authorization.
Software, Hardware, Cloud Based Services, Industrial Internet of Things. Orders that include the purchase of information technology services, software, hardware, cloud based services, services related to the industrial internet of things and related electronic services or products shall, in addition to this Agreement, also be governed by additional particular terms and conditions specific to those services which shall be provided therewith.
Delivery/Shipment. Seller shall deliver the Goods to the location as set out in the Order Confirmation (Delivery Location) and in accordance with the INCOTERM referred to in the Order Confirmation (in the absence of written agreement to the contrary) and shall be deemed complete pursuant to the agreed upon delivery terms. If no terms are specified, the delivery terms shall be DAP Customer Defined Location (Incoterms 2010). Buyer shall pay all shipping, packing and handling costs and shall bear the risk of loss after Seller completes delivery of the Goods to the carrier. Buyer shall have five (5) days after any full or partial delivery to notify Seller if Buyer’s count of delivered Goods does not conform with Seller’s count as identified in the itemized packing list accompanying the shipment. Shipments on Buyer’s shipping account will be default to no shipping insurance unless requested by Buyer in writing.
Title. Title to the Goods shall pass at the time of shipment of the Goods.
Sales or Use Taxes. In compliance with various provincial sales tax statutes and regulations, Seller will add sales tax to the sale of a taxable order unless Buyer provides documentation that is complete, legally acceptable in form, and valid in accordance with applicable laws and regulations of the province that has jurisdiction over the sales transaction. The jurisdiction province shall be the province at which the goods and services were delivered. Buyer shall be held liable to Seller for monies due for sales tax if a subsequent tax audit determines that Buyer provided incomplete or invalid documentation, unless Buyer provides additional documentation to correct any deficiencies in the original documentation in accordance with applicable provincial laws and regulations and audit requirements.
Time of Delivery. Shipment and Service schedules are approximate and are based on conditions existing at the time of execution of the Agreement. Seller shall attempt to effect delivery or performance of Services in good faith by the date specified on the Order. Buyer agrees that Seller shall not be responsible or liable for any damages, including but not limited to, direct, indirect, special or consequential damages, arising from any shipment of nonconforming Goods, or any delay in delivery of Goods or performance of Services, or any failure to deliver Goods in quantities and at times specified. In such cases, Seller reserves the right to terminate the Agreement or to reschedule delivery within a reasonable time, and Buyer agrees that such termination or rescheduling shall not be considered a breach of the Agreement. In no event shall Seller be liable for incidental or consequential damages resulting from failure to meet requested delivery schedules. Goods and Services shall be deemed accepted when received by Buyer or upon completion of Services, respectively. Buyer’s revocation of acceptance, if any, must be made in writing within fifteen (15) business days after receipt of the Goods or completion of the Services. The writing must specify Buyer’s reason for revocation of acceptance. The terms of this section do not limit or affect Buyer’s rights or Seller’s warranty obligations specified hereunder. Any schedule delays throughout the process due to Buyer, including, but not limited to failure to timely acquire licenses, provide drawings or other documentation needed for production, or to timely release shipment, may result in an amendment to this Agreement in Seller’s sole discretion. For nuclear orders, the production of the source and the source container shall not start until the Seller has received a copy of the Buyer’s valid site specific nuclear licence referring the model numbers of the Seller source holder(s) being ordered together with the isotope type and suitable allowed activity levels. Failure to provide a valid nuclear license within twelve (12) months from the order receipt date may result in cancellation of the nuclear components of the order by the Seller.
Changes Orders/Effect of Amendments to Agreement. Any changes requested by Buyer to the proposed scope of the Goods and/or Services to be supplied must be communicated in writing to Seller and be accepted in writing by Seller. Upon receipt of a change order, Seller shall provide Buyer with a revised schedule and quote for the additional costs associated with the requested change(s). The change order must be agreed upon in writing by both Parties prior to Seller commencing work on the revised scope. Change orders shall be subject to an administrative fee of $200 plus an additional $50 per tag in addition to any pricing differences associated with the requested changes.
Specifications. Except for the return of nonconforming and defective Goods, all returns of Goods shall be made in strict compliance with Seller’s Return Policy as may be in effect from time to time, a written copy of which is available to Buyer upon request.
Storage Fees. Goods ready for dispatch and not released by Buyer may be subject to monthly storage fees at a minimum rate of two percent (2%) of the Goods value. Additionally, if Buyer requests deferral of shipment, or fails to provide information, material or documentation required by this Agreement and as a result Goods are placed in storage, storage fees will commence immediately following the scheduled ship date unless extended in writing. These charges will be invoiced to Buyer separately from the actual shipment and shall be paid in full by Buyer within thirty (30) days of date of invoice. If credit is not approved, payment shall be due upon delivery.
Specifications. Goods and Services shall be deemed to be in conformity herewith if they conform to the specifications provided by Buyer. In the event ambiguities, discrepancies, or express conflicts exist between the specifications and any other item purporting to describe or define the Goods or Services, including but not limited to drawings, photographs, models or other documentation, the specifications shall control unless otherwise agreed to in writing by Seller. Buyer agrees that Seller shall have no responsibility to identify or notify Buyer of any such ambiguity, discrepancy, or conflict. Seller reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
Nonconforming Goods. Seller reserves the right to cure any shipment of nonconforming Goods. At the option of Seller, Buyer’s remedies for nonconforming Goods shall be limited to the repair or replacement of the nonconforming Goods, and if repair or replacement is not possible, return of the nonconforming Goods and repayment of any portion of the purchase price paid.
Seller’s Express Warranty. Seller warrants the Goods to meet the specifications provided in the Order and to be free from defects in materials and workmanship under normal use and service for a period of 12 months from time of shipment. This warranty may be extended to a period longer than the standard 12 month period for an additional cost to be agreed upon by the Parties or for an additional standard twelve (12) months upon the purchase of start-up and commissioning services with the purchase of Goods. Seller further warrants that for a period of ninety (90) days from time of completion of Services, Services will conform to the specifications set forth in the Order and that Seller will perform Services in a professional and workmanlike manner in accordance with all applicable laws and regulations. Buyer agrees that it has the sole responsibility for the proper selection application, installation, use and instructions (concerning use, application, periodic maintenance, and cautions of the Goods) to ultimate users of the Goods and Services. Buyer agrees that the warranty provided herein shall not apply to any Goods or Services which: (1) have been repaired or altered outside of Seller’s factory in any way so as, in Seller’s judgment, to affect such Goods’ or Services’ reliability; (2) have been subject to misuse, negligence, or accident; (3) have been operated other than in accordance with the printed instructions prepared by Seller and provided by Seller with the Goods or Services; or (4) have been subject to abnormal wear of wetted parts caused by Buyer’s application of the Goods. Furthermore, Buyer acknowledges that repairs performed by Buyer or others are not warranted by Seller, and that third-party equipment shall be subject to the warranties provided therewith. Notwithstanding anything to the contrary herein, it is understood and agreed that the provisions of the Ontario Sale of Goods Act, the Ontario Consumer Protection Act, and similar legislation throughout Canada are hereby waived by the Customer.
Seller’s Exclusive Obligations under Warranty. Seller shall re-perform, at Seller’s sole cost and expense, any Services which do not comply with the applicable warranties specified hereof. At Seller’s option, Seller may repair, replace, or refund the purchase price of Goods. Goods shall be returned to Seller no later than one month after the expiration of the applicable warranty period pursuant to the provisions of this section and in a manner in which Seller’s examination shall disclose to Seller’s satisfaction that Goods are defective as specified in the warranty clause hereof. All allegedly defective Goods shall be returned to the Seller at Buyer’s expense and risk. All such defective or nonconforming Goods shall be returned to Seller at Burlington, Ontario, freight prepaid, unless otherwise agreed by the parties in writing, and shall be accompanied or preceded by a particularized statement of the claimed defect. Under such circumstances, freight charges to and from Seller and risk of loss shall be borne by Buyer. Seller shall bear the cost of repair or replacement and the risk of loss while the Goods are in Seller’s possession at Seller’s plant. If Goods are returned without being preceded or accompanied by a written statement of the claimed defect, Seller shall hold the Goods pending receipt of Buyer’s statement of defect, provided that, prior to such receipt, risk of loss of the Goods shall remain with the Buyer. If Buyer makes a warranty claim or requires Seller to provide any Services at the Buyer’s site relating to any alleged defect in Goods provided, all travel and labour costs to and from the site shall be paid by the Buyer at the Seller’s published rates. In the event it is subsequently determined that it is not a warranty issue, all applicable charges will be applied.
Limitation of Remedies. SELLER’S OPTION TO REPAIR, REPLACE OR REFUND THE PURCHASE PRICE FOR GOODS OR RE-PERFORM SERVICES IS BUYER’S EXCLUSIVE REMEDY AGAINST SELLER WHETHER SUCH REMEDY ARISES OUT OF BUYER’S CLAIM FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR ANY OTHER CLAIM WITH RESPECT TO THE GOODS AND SERVICES AND SELLER SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL DAMAGES (INCLUDING LOSS OF PROFIT OR OTHER ECONOMIC LOSS) OR OTHER DAMAGES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCTS LIABILITY, OR OTHERWISE, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSILITY OF SUCH DAMAGES ARISING OUT OF THE FURNISHING, PERFORMANCE, USE OF, OR PROVIDING THE GOODS AND/OR SERVICES IN CONNECTION WITH THIS AGREEMENT. THE PARTIES AGREE THAT CONSEQUENTIAL DAMAGES FOR PURPOSES OF THIS AGREEMENT REPRESENT ANY DAMAGES OTHER THAN THE COST TO REPAIR, REPLACE OR REFUND THE PURCHASE PRICE OF THE GOODS OR SERVICES WITH RESPECT TO WHICH THE LOSS OCCURRED.
Seller’s Disclaimer of Implied Warranties. SELLER’S EXPRESS WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, AND SELLER HEREBY DISCLAIMS ANY OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BUYER AGREES THAT MODELS OR SAMPLES SHOWN TO BUYER, IF ANY, WERE USED MERELY TO ILLUSTRATE THE GOODS AND NOT TO REPRESENT, PROMISE, OR GUARANTEE THAT ANY GOODS DELIVERED HEREUNDER WOULD CONFORM TO SUCH MODELS OR SAMPLES. SELLER’S AGENTS HAVE NO AUTHORITY TO GIVE WARRANTIES BEYOND THOSE PROVIDED IN THIS LIMITED EXPRESS WARRANTY.
Buyer’s Indemnity. Buyer agrees to indemnify and hold harmless Seller against all damages, costs, expenses and attorney’s fees arising from claims of infringement of patents, designs, copyrights or trademarks with respect to all Goods manufactured or assembled either in whole or in part to Buyer’s specifications. Buyer agrees that such infringement shall be deemed a breach of the Agreement. Seller further reserves the right to terminate the Agreement for Goods which, in the opinion of Seller, infringe upon any patent, design, copyright or trademark in their manufacture, sale and/or use, and Buyer agrees that such termination shall not be considered a breach by Seller of the Agreement. Buyer further agrees that Seller shall not be liable under this provision if the Goods or Services are altered or modified in any manner after Seller delivers such Goods to the carrier for delivery to Buyer or completes performance of any Services. Buyer hereby agrees to defend, indemnify, and hold harmless Seller its successors, assigns, affiliates, and parent entities and employees, directors, and agents of Seller from and against any and all losses, injuries, liabilities, expenses, fines, fees (including without limitation reasonable attorneys’ fees and costs), penalties, damages, or claims, asserted by third parties, including but not limited to claims for injury to, or death of a person, or for loss of or damage to property, arising out of or resulting from the negligence, gross negligence or willful misconduct on the part of the Buyer or its subcontractors, agents, or employees in the performance of this Agreement, including, but not limited to, use of equipment or facilities owned by any party or others.
Seller’s Indemnity. Seller shall indemnify, defend, and hold harmless Buyer against any claim of a third person for infringement of any intellectual property right by the Goods covered by this Agreement which are not, either in whole or in part, manufactured or assembled either in whole or in part to Buyer’s specifications. The foregoing undertaking of Seller shall not apply unless Seller shall have been informed in writing as soon as practicable by Buyer of the charge or suit alleging such infringement and shall have been given the opportunity to take over the defense thereof, and provided, further, that it shall not apply to the extent the infringement claim is caused by: (a) alteration or modification of the Goods other than by, or as authorized by, Seller; or (b) Goods, work or services for which Buyer provided and controlled the detailed design; or (c) from Buyer’s use of the Goods in combination with equipment which is not part of the Goods where such infringement would not have occurred from the use of the Goods not in combination with such equipment and Seller’s supplying of the Goods hereunder does not constitute contributory patent infringement. In addition to the indemnification obligations set forth in this Section, in the event of any claim of a third person for infringement of any intellectual property right by the Goods covered by this Agreement, Seller will, at its option, promptly repair or replace, or refund the purchase price of the infringing Goods.
Import and Export Compliance. Buyer is solely responsible for compliance with all applicable import and export control laws, in any jurisdiction, relating to the Goods and Services. Buyer shall undertake all necessary actions to comply with such laws, including, but not limited to, processing of all necessary customs procedures, payment of import/export duties and import/export taxes, completion and maintenance of documentation and provision of accurate information to all customs authorities. Buyer shall indemnify and hold harmless Seller against all damages, costs, expenses and attorney’s fees arising from or alleged to arise from any violation, alleged violation, or failure to comply with, the terms of this provision by Buyer or any person for whom Buyer may be responsible.
Licenses. If Seller is responsible for obtaining any required licenses, Seller’s obligations under this Agreement are expressly subject to the reservation that there are no impediments to obtaining such licenses due to governmental regulations. Buyer shall provide Seller with all information and documentation required for the export/import/shipment of Goods and provision of Services. If a necessary license is not granted, through no fault of the Seller, the Agreement with regard to the applicable Goods and/or Services shall be rendered null and void and Buyer shall indemnify, release, waive, and hold harmless Seller from any and all liability related thereto.
Buyer Default. Seller shall have the unrestricted right, upon written notice to Buyer, to declare a default (“Buyer Default”) hereunder and to terminate this Agreement if any of the following events occur: 1) Buyer’s failure to comply with any of the provisions, terms and conditions of this Agreement, including without limitation, Buyer’s failure to timely pay for any Goods or Services delivered to Buyer; 2) Seller’s ability to perform of any of its obligations with respect to Services is prevented or delayed by any act or omission by Buyer or failure by Buyer to perform any relevant obligation, after a reasonable opportunity to cure such Buyer’s failure to perform or act or omission; 3) Dissolution, insolvency, appointment of a receiver, assignment for the benefit of creditors or the commencement of any proceeding under any bankruptcy or insolvency laws by or against the Buyer; or 4) Seller’s determination, in its sole discretion, that Buyer’s financial condition is such as to endanger Buyer’s performance hereunder.
Remedies Upon Buyer’s Default. Upon Buyer’s Default and Seller’s written notice thereof to Buyer, every obligation of Seller hereunder shall immediately terminate and Seller shall have all rights and remedies existing at law or in equity, including but not limited to those provided by the Ontario Personal Property Security Act as adopted in Ontario, and Buyer shall reimburse Seller on written demand for any costs or losses sustained or incurred by Seller arising directly or indirectly from the Buyer Default. Seller shall also have the right to suspend performance of any Services until Buyer remedies such Buyer Default, and to rely on the Buyer Default to relieve it from the performance of any of its obligations to the extent the Buyer Default prevents or delays Seller’s performance of any of its obligations.
Governing law. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Ontario and Canada. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods, or any amendments thereto, shall not apply to this Agreement.
Jurisdiction. Each party irrevocably agrees that the courts of Ontario and Canada having jurisdiction in Burlington, Canada shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
Non-Solicitation. The Buyer agrees that they will not at any time during the term of the Agreement and for a period of one year thereafter, interfere with or endeavor to entice away from the Company any employee of the Seller. If Buyer engages in such behavior contrary to the provisions of this Section, the Seller may apply for or have an injunction restraining a breach or threatened breach of the covenants contained herein.
Reservation of Rights. Buyer agrees that Seller’s forbearance, delay or failure to exercise any right or remedy hereunder shall not constitute a waiver of such right or remedy and that Seller’s exercise or partial exercise of any right or remedy shall not preclude further exercise of such right or remedy or any other right or remedy.
Costs of Enforcement. Buyer agrees to pay Seller’s reasonable expenses, including reasonable attorney’s fees and costs, incurred in enforcing the terms herein.
Severability of Clauses. Buyer agrees that the invalidity or unenforceable of any of the clauses or terms herein shall not affect the validity or enforceability of any other clauses or terms hereof. Sections 8, 18-22, 24, 35, and 37 and any other clause as the context implies, shall survive the termination or expiration of this Agreement.
Alternative Dispute Resolution. If a dispute arises between the parties, the parties agree to use the following alternative dispute resolution (“ADR”) procedure prior to either Party pursuing other available remedies:
1. A meeting shall be held promptly between the parties, attended by individuals with decision-making authority regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute.
2. If, within thirty (30) days after such meeting, the parties have not succeeded in negotiating a resolution of the dispute, they will jointly appoint a mutually acceptable neutral person not affiliated with either of the parties to act as a mediator.If the parties are unable to agree on the neutral person within twenty (20) days, they shall seek assistance in such regard from ADR Chambers of Canada (“ADRCC”). The fees of the neutral person and all other common fees and expenses shall be shared equally by the parties. The mediation may proceed in accordance with ADRCC’s Mediation Rules. The parties shall pursue mediation in good faith and in a timely manner. In the event the mediation does not result in resolution of the dispute within sixty (60) days, then, upon seven (7) days’ written notice to the other party either party may suggest another form of ADR, e.g., arbitration, a mini-trial or a summary jury trial, or may pursue other available remedies.
Confidentiality. The parties agree to treat the Order, this Agreement, and any contract formed upon its acceptance as confidential and shall not disclose the existence or substance hereof to any third party. If in connection with the provision of Goods or Services hereunder a party (each one a “Recipient” as applicable to this provision) becomes aware of or receives any confidential information of the other party (each one a “Discloser” as applicable to this provision), Recipient agrees not to disclose such information to any third party or to make use of such information, except to the extent necessary to perform hereunder or as required by law. Upon Discloser’s request, Recipient shall promptly return to Discloser all Confidential Information in tangible form but shall be allowed to keep one copy in its confidential files solely for compliance and audit purposes and shall not be required to delete back-up archival electronic data. The parties agree that any disclosure or use of the other party’s Confidential Information, except as otherwise authorized herein or by Discloser in writing, would be wrongful and cause immediate and irreparable injury to Discloser. Recipient agrees to immediately notify Discloser of any unauthorized disclosure or use of any Discloser’s Confidential Information of which Recipient becomes aware. This clause shall survive termination of this Agreement.
Independent Contractors. In performing its obligations to Buyer, hereunder, Seller is acting as an independent contractor and neither party is an agent or representative of the other. Neither party is authorized to make any representations or assume or create any obligations on behalf of the other.
Limitation of Liability. NOT WITHSTANDING THE OTHER PROVISIONS OF THIS AGREEMENT TO THE CONTRARY, THE AGGREGATE LIABILITY OF EACH PARTY TO THE OTHER PARTY FOR ANY AND ALL CLAIMS AND LIABILITIES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR TO THE BUYER’S OR SELLER’S RIGHTS AND OBLIGATIONS HEREUNDER, WHETHER BASED ON A THEORY OF CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, SHALL NOT EXCEED THE PRICE OF THE GOODS OR SERVICES. IN NO EVENT SHALL SELLER’S LIABILITY TO BUYER EXTEND TO INCLUDE INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES. THE TERM “CONSEQUENTIAL DAMAGES” SHALL INCLUDE BUT NOT BE LIMITED TO, LOSS OF ANTICIPATED PROFITS, REVENUE OR USE AND COSTS INCURRED. THIS CLAUSE SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
Compliance with Governing Laws and Regulations. The Parties acknowledge and agree that all business activities shall be conducted ethically, with integrity, and in full compliance with both the letter and the spirit of the laws and regulations applicable to those activities. This commitment applies without limitation to the award of contracts/subcontracts on an impartial/competitive basis, personal business conduct, internal control systems, the offering/giving/receiving of gifts or anything of value, and correct documentation and registration of financial accounts. Neither Buyer nor its employees are authorized to operate on Seller’s behalf in an illegal manner or in contrast with Seller’s business-conduct policies and vice-versa. Should a Party ever receive, directly or indirectly from any of the other Party’s representatives or agents, a request that the Party believes is contrary to the provisions of this clause, that Party shall immediately notify the other Party’s general counsel. Without limiting the generality of the foregoing or the effect of any other provision of this Agreement, and to the extent either Party performs any work or obtains or sells any of the products in relation to this Agreement in or from a foreign country:
1. Each Party represents and warrants that it is familiar with the Corruption of Foreign Public Officials Act (“the CFPOA”), and the Criminal code of Canada (the “Criminal Code”), as amended. Each Party further represents that, in particular, it is familiar with the prohibitions of the CFPOA and the Criminal Code against offering, paying or giving anything of value, either directly or indirectly, to foreign or domestic officials (including employees of state-owned or controlled enterprises), candidates or political parties for the purpose of securing any improper advantage for a company, including assisting a company in obtaining or retaining business.
2. Each Party agrees that it shall not make any offer, payment, promise to pay, gift, or promise to give monies or anything of value; nor authorize any such offer, payment, promise to pay, gift, or promise to give by anyone acting for or on behalf of itself or the other Party; to any government official, any political party or official thereof, any candidate for political office, any official of a public international organization, or any other person that is contrary to the provisions of the CFPOA or the Criminal Code, as amended.
3. Each Party agrees that it shall not make any offer, payment, promise to pay, gift, or promise to give monies or anything of value; nor authorize any such offer, payment, promise to pay, gift, or promise to give by anyone acting for or on behalf of itself or the other Party; to any employee of a private company in order to improperly induce that employee to provide any competitive advantage to either Party in selling products or services or in otherwise doing business with that company.
4. Each Party agrees to maintain records for 5 years and present them for auditing upon demand by the other Party if there is any suspicion that a violation of this Section may have occurred.
5. Both Parties represent that neither it nor any of its directors, officers, or employees is a government official, including without limitation an official or employee of any government, an official of a political party, or a candidate for political office, or a director, officer, employee, or “affiliate” (as defined in the CFPOA) of a government instrumentality. Both Parties understand that for purposes of this agreement, a “government official” may include an employee or official of a commercial entity or a university or institute of higher learning in which a government body has an ownership interest or exerts control over the activities of such entity, as well as officials and employees of public international organizations.
6. Each Party acknowledges that the representations and warranties provided in this clause are material to this Agreement. These representations shall be deemed to be continuing in effect throughout the term of the Agreement. Both Parties shall promptly advise each other of any change in circumstances which may affect the continuing validity of their representations. Either Party may terminate this Agreement at any time, without any liability or obligations to the other Party, if that Party believes, in good faith, that the other Party has violated any provisions of this clause. Any action by either Party which would or might constitute a violation of the CFPOA or the Criminal Code, as amended, or a request for such action from or by a representative of either Party shall result in immediate termination of this Agreement without further liability or obligation of the other Party.
Force Majeure. Events that are beyond reasonable control including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce or any other party), epidemics, pandemics, plague, quarantine, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, difficulties in obtaining authorizations, in particular import and export licenses, accident, break- down of plant or machinery, energy shortage, fire, flood, storm or default of sup- pliers or subcontractors that prevent delivery of the Products or services within the agreed upon time schedule (“Force Majeure”), extend the delivery deadlines for the duration of the Force Majeure and its impact. The Customer shall be notified of such delay in delivery. Should delivery be delayed for at least six (6) months past the original delivery date both Parties may in good faith withdraw from the relevant order.
Assignment. This Agreement may not be assigned by either Party to any third party without the prior written consent of the other Party hereto; provided, however, that a Party may assign its rights and obligations hereunder by written notice to the other Party to (a) any Affiliate or (b) a successor or transferee (whether by merger, consolidation, purchase or otherwise) of either (i) all or substantially all of the assets of the assignor, or (ii) all or substantially all of the assets of the business to which it pertains; and provided such party is not a competitor of the non-assignor. Any purported assignment in violation of the preceding shall be void. Any permitted assignee shall assume all obligations of its assignor under this Agreement. No assignment shall relieve a Party of responsibility for the performance of any obligation which accrued prior to the effective date of such assignment.
Intellectual Property. All Intellectual Property Rights in or arising out of or in connection with this Agreement and/or the Services shall be owned by Seller.
General Definitions.
1. Agreement: means the receipt and acceptance by Seller of the Order along with these Standard Sales and Service Terms and Conditions, Sellers’ invoices, delivery forms, or other Seller documents related to the Order.
2. Goods: means any and all goods purchased by Buyer from Seller in connection with this Agreement and as specified in the Order.
3. Intellectual Property Rights: means patents, inventions, copyright and related rights, trademarks, trade names, business and domain names, goodwill, designs, database rights, processes, know-how, trade secrets, computer technical expertise, general product and process expertise, software and other intellectual property independently developed, owned, and/or controlled by Seller and any improvements thereto which are used, improved, modified, or further developed by Seller during its performance under this Agreement, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and right to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world, shall be and remain the property of Seller.
4. Services: means any and all services, including any deliverables, purchased by Buyer from Seller in connection with this Agreement and as specified in the Order except for those services detailed in Section 8 above.
Language. The parties acknowledge that they have required that the agreement evidenced hereby be drawn up in English. Les parties reconnaissent avoir exigé la rédaction en anglais du Contrat. In the event of a conflict between the English and other language versions, the English version will prevail.

GENERAL CONDITIONS OF SALE Alia Instruments B.V.

Applicability
1. These General Terms and Conditions of Sale shall form an integral part of and shall apply to Alia Instruments BV (hereinafter Seller), Seller’s offers, Seller’s order confirmations, Contracts signed by Seller and Buyer, as well as to subsequent addenda thereto and will take preference over any other terms or conditions stipulated or referred to by Buyer, unless explicitly otherwise agreed in writing by both parties. All other conditions are herewith explicitly rejected.
2. These General Terms and Conditions may hereafter be modified by written instrument only by a duly authorized representative of Seller.
3. The object(s) to be supplied by Seller under these General Terms and Conditions is (are) hereinafter referred to as the Product(s).
Validity of offers
1. All offers shall remain valid for a period of 14 (fourteen) days only, following the day of issuance of such offer.
Contract
1. A contract shall be considered to be effective from the day Buyer and Seller have co-signed a document to this effect or on the day indicated by Seller’s written order confirmation. Verbal promises and arrangements shall not be binding upon Seller until and insofar as they have been confirmed by Seller in writing. A contract signed by Buyer and Seller or Seller’s written order confirmation for the supply of the Product(s), as the case may be, are hereinafter referred to as Contract.
Intellectual property and measurements
1. The Product(s) being sold to Buyer and the information and data supplied to Buyer as part of a sale incorporate Seller’s valuable property including patents and know-how. Seller hereby grants Buyer a non-exclusive, non-assignable, non-transferable license, without right of sublicense, to use such intellectual property only as necessary to operate the Product(s) at the Buyer’s plant/vessel at which Seller installs such Product(s). Buyer agrees that all such intellectual property rights of Seller and all information and data, including drawings, incorporating same, are and shall remain Seller’s exclusive property. As a result, neither any of such intellectual property nor any information or data incorporating same shall be reproduced or copied by Buyer nor shall any of same be disclosed to any third party without Seller’s prior written consent. Without limitation on the foregoing, none of the Product(s) being sold to Buyer nor any of the information or data supplied to Buyer as part of the sale shall be used for re-production or copying such Product(s) or any component thereof.
2. Any information and data supplied by Seller in drawings, catalogues, illustrated matters, statements of weights and measures etc. constitute approximations and shall not be binding unless explicitly stipulated in Contract.
Prices
1. Unless otherwise stipulated, all prices for Product(s) are valid for delivery Free Carrier Enschede (FCA), per ICC Incoterms 2010, unpacked.
2. Packaging will not be included in the price and is charged separately. Packaging is not taken back.
3. Seller’s prices are in Canadian unless otherwise stated. Any prices in other currencies shall be based on the weighted average of forward rates of exchange on the effective date of the Contract for the Product(s).
4. Buyer is to indemnify Seller for all financial or other consequences related to direct and indirect taxes (such as business tax on construction, installation & maintenance, training etc.) obligatory in the tax laws of Buyer’s country.
Change in Scope of Supply/Specification
1. Any change in the Scope of Supply or specification shall not be commenced by Seller until he has reached agreement in writing with Buyer regarding the scope, specification, delivery time and the price of such change.
Delivery
1. Unless otherwise agreed in writing, delivery shall take place FCA Enschede, per ICC Incoterms 2010, unpacked
2. Delivery times shall be established by mutual agreement. Unless otherwise agreed upon, the delivery times shall be estimations and shall not commence until (i) all commercial and technical issues have been settled between Buyer and Seller and (ii) receipt by Seller of the down payment as stipulated in the Contract.
3. If the Seller fails to deliver the goods within the delivery time for reasons for which the Seller is exclusively responsible, the Buyer shall be entitled to claim as liquidated damages but not as a contract penalty a sum of 0.5 % of the contract price for each completed week of delay but maximum 5 % of the contract price. Payment of the liquidated damages by the Seller shall be deemed to be complete and final compensation of the Buyer for all consequences of the delay and the claim to this payment excludes all other claims of the Buyer in connection with this delay.
4. No contractual fine for delayed delivery shall apply if such delay is caused by Force Majeure (see article 15) or if such delay is wholly or partially due to an act or an omission by Buyer.
5. If the Buyer fails to accept delivery of the completed Product(s), he shall nevertheless pay as if Product(s) had been delivered. In such cases, Seller shall store the Product at the cost and risk of Buyer. Upon receipt of a written notice from Seller, Buyer shall accept delivery within a reasonable time.
Payment conditions
1. Seller’s offers are based on the following payment terms, which apply for Contracts for Product(s) unless otherwise agreed in writing: (i) 75 (seventy-five) percent of the Contract value with the order to be remitted within 14 days from Contract date; (ii) 25 (twenty-five) percent of the Contract value upon notification of readiness of (each partial) delivery to be remitted before delivery Other payment conditions apply only if agreed upon in writing, and provided that such conditions are acceptable for obtaining adequate credit insurance coverage on Buyer from a credit insurance company designated by Seller or explicitly accepted by Seller’s management. Payment shall not be deemed to have been effected until Seller’s account has been fully and irrevocably credited for the Contract.
2. Seller reserves the right, without any notice of default being required, to charge interest to any overdue payment at the rate of 1,5 % (one and a half percent) per month and, in addition, to charge all judicial and non-judicial costs falling on the collection of any overdue payment.
3. If Buyer delays in making any payment or fails to deliver an acceptable Letter of Credit in time. Seller may suspend his performance of the Contract until such financial obligations are fulfilled by Buyer. If Buyer, after receiving notice of default, fails to fulfil its financial obligations, Seller shall be entitled, without requiring the consent of any court, to terminate the Contract by notice in writing to Buyer, and to claim compensation from Buyer for the loss Seller has incurred. This loss includes but is not limited to actual costs incurred, under absorption losses and unrealized profits.
4. If payments are delayed due to Force Majeure (described in article 13), Seller shall not be entitled to any interest on the amounts due.
5. Buyer shall make all payments into the Seller’s account, without incurring expense on the Seller.
Transfer of title and risk
1. Without prejudice to the provisions of the preceding paragraph, Product(s) shall remain the property of Seller until paid for in full. The Buyer shall at the request of Seller, assist him in taking any measurements necessary to protect the Seller’s title to Product(s).
2. The risk of loss, destruction and/or damage of goods to be delivered passes onto the Buyer when the goods reach the by incoterm 2010 agreed place of delivery and from then on continues to reside with the Buyer.
Warranty
1. Seller warrants that the equipment supplied is free of defects in design, material and workmanship under normal usage and service for a period of 12 (twelve) months after acceptance by the customer, but no later than 18 (eighteen) months after delivery.
2. It is expressly agreed (a) that there is only warranty of fitness for a particular purpose if and insofar expressly agreed upon between Buyer and Seller and stipulated specifically in the Contract, and (b) that Buyer purchases the Product(s) solely on the basis of the commitments of Seller expressly set forth herein and in the Contract.
3. The Product(s) and parts thereof produced by manufacturers other than Seller are warranted only to the extent of the original manufacturer’s warranty period provided to Seller.
4. The warranty shall not apply to any Product(s) and parts thereof that have been subject to misuse, accident, use beyond rated capacities, alterations without the Seller’s written consent or carried out improperly, removal, faulty maintenance, incorrect erection or faulty repairs by Buyer, nor does it cover wear and tear or deterioration. Seller is not liable for defects arising from materials provided by or a design specified by Buyer.
5. Alleged non-fulfilment of the warranty obligations by Seller shall not release Buyer from his obligations arising from any Contract concluded with Seller.
6. Buyer shall notify Seller within 14 days after first occurrence of any defects which appear during the warranty period. The notice shall contain a detailed description of the defect and the circumstances under which the defect occurred.
7. Seller’s sole obligation under this warranty shall be to repair or replace the Product(s) or part thereof which, upon examination by both Seller and Buyer, have a defect for which Seller is liable. Buyer shall at his own expense, arrange for any dismantling, transportation and reassembly of the defective Product(s) or part thereof. When a defect in the Product(s) or part thereof has been remedied, Seller shall be liable for defects in what has been remedied under the same conditions as applicable to the original Product(s) for a period of one year or for the remainder of the warranty period, whichever is the latest. Defective Product(s) or part thereof, which have been replaced shall be made available to Seller and shall be his property.
Construction, substitutes, changes and improvements
1. Seller reserves the right to change specifications wherever necessary to keep up-to-date with general developments, or to substitute materials equal or superior to that originally specified.
Liability
1. Compliance with the provision of article 10 shall mean sole and full compensation and shall exclude any claim for damages other than in respect of non-fulfilment of the warranty obligations.
2. Save as elsewhere stated in these conditions, there shall be no liability for either party towards the other party for loss of production, loss of profit, loss of use, loss of contracts, incidental or consequential damages and/or economic or indirect loss whatsoever.
3. The Buyer is bound to safeguard and to indemnify Seller for all costs, damages and interests that might arise for the Seller as a direct or indirect consequence of claims made by third parties on the Seller with respect to occurrences, acts or omissions for which the Seller shall not be liable in accordance with the foregoing.
4. Seller shall not be liable for any damage to the property of the Buyer caused by the Product(s) after they have been delivered and whilst it is in the possession of Buyer. Nor shall Seller be liable for any damage to product(s) manufactured by Buyer or to product(s) of which the Product(s) form a part.
5. Seller shall not be liable for any damages in excess of what is covered by Seller’s General and Product Liability Insurance Policy.
6. The aggregate liability of Seller out of or in connection to this Contract – for whatever reason (such as but not limited to warranty, guarantee, liability, remedy, indemnity, infringement, tort, contract, delay or similar) – shall be limited up to a total amount of 100% of the contract price.
Force Majeure
1. In these General Terms and Conditions of Sale, the term Force Majeure shall be understood to include any and all circumstances beyond the control of the parties that temporarily or permanently prevent fulfilment of the Contract such as; war, danger of war, civil riots, strikes, lock-outs, acts of God, embargoes, machine break-down, shortages of transport, general shortages of materials and supplies, laws, acts, regulations, orders or decrees of any agency or body of the Governments of Seller or Buyer or of Seller’s sellers or of International Organizations with authority to enforce trade restrictions; or any other causes similar or dissimilar beyond the reasonable control of the parties.
Suspension and cancellation
1. The Contract as referred to in article 3 will not be subject to cancellation by Buyer, either in whole or in part, without Seller’s written permission and then only upon terms that will equitably indemnify Seller.
2. In the event of inability to perform the Contract as a result of Force Majeure, the party wishing to make a claim to Force Majeure shall immediately notify the other party in writing of the start and the cessation thereof, and the cause or event giving rise to it. If it is established that Force Majeure has occurred, the party claiming Force Majeure will be relieved from performing its obligations under the Contract for as long as such performance is prevented, delayed or hindered thereby.
3. In the event of bankruptcy, suspension of payment, closure, liquidation, or full or partial transfer -whether or not as security- of the business of Buyer, resulting in the transfer of a major part of the Buyer’s receivables, Seller shall be entitled, without notice of default and without judicial intervention being required, either to suspend the performance of the Contract or to cancel the Contract in full or in part, without being liable for compensation or bound by any guarantee, and without prejudice to his further rights. During and directly after the period of suspension the Seller is entitled to compensation of the suspended Contract.
4. Termination of the Contract, for whatever reason, shall occur without prejudice to the rights of the parties accrued under the Contract up to the time of termination.
Waiver
1. Waiver by Seller due to breach by Buyer of any provision of this Contract shall not be deemed a waiver of future compliance therewith, and such provision, as well as other provisions hereafter, shall remain in full force and effect.
Compliance
1. Unless otherwise agreed upon, Seller does not guarantee compliance of the Product(s) furnished with any law, rule, regulation or ordinance of a State, or local Government, or any other Governmental agency that may in any way be applicable to the manufacture, sale or performance of the Product(s) furnished.
Installation and start-up
1. Buyer shall be completely and exclusively responsible for providing all product(s), tools, labour, services and governmental authorizations required for the unloading, assembly, installation, start-up, operation and maintenance of the Product(s) and adequate and properly constructed foundation and structural support to insure the Product(s)’ unimpaired operation under normal conditions.
2. If Buyer desires to make use of the support of Seller’s personnel, Buyer and Seller shall mutually agree on the time and conditions of such support based on Seller’s “General Service Conditions”.
Disputes
1. Any dispute between Parties arising out of, or in connection with a Contract, the interpretation of this Contract shall be referred to each Party’s senior management for resolution through good faith negotiations. An attempt to reach a settlement shall be deemed to have failed as soon as a Party so notifies the other Party in writing to that effect. If Parties fail to amicably solve a dispute, the court of Bern, Switzerland, shall be the competent court to decide on the dispute.
Applicable law
1. Any offer from Seller and any Contract shall be governed by Swiss Law.
2. No other laws or regulations shall apply to this contract, unless otherwise agreed upon. In particular, the enforcement of the UN Sales Law Convention is excluded.
Date of commencement
1. These General Terms and Conditions have come into effect as of February 2018.

GENERAL CONDITIONS OF SALE Alia Instruments B.V.

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