TERMS AND CONDITIONS OF SALE
All quotes, offers of products for sale and sales by Enercorp instruments ltd. are subject to these terms and conditions. The term “Enercorp instruments ltd” may hereinafter be referred to as the “Company” or “we” or “us” or “our” or “Seller” and the term “Buyer” or “Customer” or “you” or ”your” hereinafter refers to the customer purchasing from Enercorp instruments ltd.
- PRICE AND DELIVERY: All prices quoted, and deliveries made, will be “Free On Board (FOB)” or EXWORKS (EXW)” from our factory located in Toronto, Ontario, Canada. Delivery shall be established by mutual agreement or as determined by Enercorp instruments ltd. Drop shipments can be arranged as needed and may incur additional handling fees.
- CONFLICTING OR MODIFYING TERMS: No modification of, additions to or conflicting provisions to these terms and conditions of sale and shipment, whether oral or written, incorporated into Buyer’s order or other communications are binding upon the Company unless specifically agreed to by the Company in writing and signed by an officer of the Company. Failure of the Company to object to such additions, conflicts or modifications shall not be construed as a waiver of these terms and conditions or an acceptance of any such provisions.
- WARRANTY OF GOODS: Enercorp instruments ltd. warrants its products to be free of defects in material and workmanship for a period of one (1) year after receipt by Buyer. This warranty does not apply to any products or parts not purchased as new from Enercorp instruments ltd. If any Enercorp instruments ltd’s manufactured product fails to conform to the warranty applicable to such product, Enercorp instruments ltd’s sole and exclusive liability shall be, at its option, to repair, replace or credit Buyer’s account an amount equal to the price paid for such products which are returned during the acceptable warranty period by Buyer with such product’s manufacturing date code intact. This warranty shall not apply to products damaged by abuse, neglect, accident, acts of God, modification, alteration or misuse. Normal wear is not warranted. Notice of defects must be received within the warranty period or the warranty is void.
Enercorp instruments ltd neither assumes nor authorizes any person to assume any other liabilities in connection with the sale or use of any products. This exclusion means there is no implied warranty of merchantability and no implied warranty of fitness for any particular purpose, technical assistance or information provided by Enercorp instruments ltd or the Company’s personnel. Any suggestions by the Company regarding use, selection, application or suitability of the products shall not be construed as an express warranty unless specifically designated as such in writing and signed by an officer of the company. This exclusion also means that Enercorp instruments ltd grants no implied warranties arising with respect to usage of trade, course of dealing or course of performance and none shall arise out of any sale under this agreement or out of either party’s conduct.
- PAYMENTS: Unless otherwise agreed by the Company, all orders are due for payment immediately upon confirmation of the order by the Company; provided, however, the Company, at its sole discretion, may grant payment terms of net thirty (30) days from the date of shipment. Under certain circumstances (sales outside of Canada or the USA, special order products and/or lack of acceptable Buyer credit history), the Company reserves the right to require the prepayment of all or a portion of an invoice in advance of shipment. International Buyer(s) must pay incoming and outgoing wire transfer fees unless otherwise agreed upon. A finance charge of one percent (1.0%) per month will be calculated on a daily basis and shall be payable on any outstanding balance from the date payment was due until the date payment is received by the Company; without prejudice to the Company’s other rights with respect to nonpayment or late payment. Buyer shall not withhold payment or make any deductions or set off from the price. If Buyer is placed on credit hold by the Company due to past due outstanding invoice(s) or if at any time Buyer’s credit becomes unsatisfactory, Buyer agrees that Enercorp instruments ltd has the right to withhold delivery of any pending product shipments and suspend Buyer’s existing net payment or credit terms and change such terms to prepayment. All costs and expenses incurred by the Company as a result (direct or indirect) of such suspension and any recommencement shall be payable by Buyer upon demand. The Company reserves the right to submit any late unpaid invoices to a third party for collection and Buyer shall pay all reasonable costs including, but not limited to, debt collection expenses, legal fees, court costs and other charges to settle such collection in addition to the invoice amount.
- TAXES: Any sales taxes, use taxes, excise taxes, tariffs, duties, customs, inspection and testing fees, value-added taxes, customs storage fees, Shipper’s Export Declaration (SED) fees, special handling fees, any applicable international trade fees of any nature imposed or collected by any government authority must be paid by Buyer in addition to the amount invoiced. In the event the Company is required to pay any such tax, fee or charge, Buyer agrees to reimburse Enercorp instruments ltd upon demand. In the event Buyer claims an exemption from the imposition of such tax, fee or charge, Buyer will be required to provide a resale certificate or similar document acceptable to the authority imposing such tax, fee or charge. Buyer shall indicate at the time of order placement if any sale is tax-exempt.
- SHIPPING METHOD AND CHARGES: Enercorp instruments ltd shall package products for normal shipping conditions. The Company shall select the freight carrier, method and routing. Shipping charges are prepaid and added to a Buyer’s invoice; however, the Company reserves the right to ship freight-collect at its discretion. Shipping charges may include a charge for any special packaging, at the Company’s discretion. Certain handling fees may be added to the product price if additional cost is incurred/required for any special labelling and/or packaging requirements or due to regulations imposed by any Government. No third-party freight billing will be permitted without the Company’s prior written consent.
- RETURNS: Unless otherwise agreed in writing by the Company, all sales of products by Enercorp instruments ltd become final, non-cancelable, non-returnable and non-refundable at the time an order is confirmed by the Company. Written authorization must be obtained from the Company before returning any product for which Buyer expects replacement, exchange, repairs, or credit within the warranty period. Return goods can only be returned when approved by the Company under strict compliance with Enercorp instruments ltd’s return shipment instructions. Product(s) that have been opened and used will not be accepted for return. Prior to returning any products, Buyer must obtain a preapproved Return Material Authorization (RMA) number issued by Enercorp instruments ltd. At its discretion, Enercorp instruments ltd may allow the return of product(s) purchased within the prior one hundred and eighty (180) day period in exchange for: (1) a restocking fee of twenty-five percent (25%) of the invoice amount in addition to other costs incurred by Enercorp instruments ltd and/or (2) an offsetting order for a value amount equal to or exceeding that of the product returned. Return of products categorized as “NCR”, non-cancelable or non-returnable or those made with non-standard material or other material provided specially to meet Buyer’s specifications shall not be returnable for any reason. If qualified for return, Buyer is responsible to arrange and pay for shipping and handling and any other charges, including any insurance or custom charges, if applicable. Enercorp instruments ltd, at its discretion, may pay standard ground freight charges for items being returned to Buyer which are repaired or replaced within the warranty period. Approved credit memos will be applied to Buyer’s account and Buyers may use such credit against future purchases from Enercorp instruments ltd. Buyer agrees that Enercorp instruments ltd will not issue any refund payments or cheques for such credit amount or credit memo.
- DELIVERY SCHEDULES/FORCE MAJEURE: Orders are generally shipped on the date specified and acknowledged on Enercorp instruments ltd order confirmation sent to Buyer upon acceptance of an order(s). Enercorp instruments ltd does not guarantee the date of shipment nor the date of Buyer’s receipt of the items. In the event Buyer requires delivery of product(s) prior to the Company’s scheduled shipment date, Enercorp instruments ltd reserves the right to charge an expedite fee. Enercorp instruments ltd will not be liable for any loss, damage or penalty due to delays in delivery or for the failure to perform its obligations due to causes beyond its reasonable control including, but not limited to, material shortages, transportation delays, unforeseen circumstances, embargo or other governmental act, regulation or request affecting the conduct of Company’s business, acts of God, acts or omissions of other parties including Buyer, acts or omissions of civil or military authorities, Government priorities, fires, explosions, accidents, thefts, vandalism, lightning, windstorm, floods, severe weather conditions, computer interruptions, terrorism, epidemics, quarantine restrictions, strikes, riots or war, labour disputes, other labour difficulties and failure in manufacturing, inability to obtain necessary labour, fuel, materials, supplies or parts at current prices. Enercorp instruments ltd’s time for delivery or performance will be extended by the period of any such delay or Enercorp instruments ltd may, at its option, cancel any order or remaining part thereof, without liability, by giving notice to Buyer.
- TITLE: Title to the products will pass to Buyer upon delivery to the carrier at the EXWORKS or FOB point; provided however, Enercorp instruments ltd will retain a purchase money security interest in each product until all of its claims arising out of the furnishing of such products have been satisfied in full. All risk of loss or damage to the products will pass to Buyer upon delivery to the carrier at the FOB or EXWORKS point; the carrier acting as Buyer’s agent.
- LIABILITY: Buyer agrees that Enercorp instruments ltd shall not be responsible or liable for any special, indirect, incidental, consequential or special damages of any kind, harm and or accident resulting from the sale and any use or failure of products supplied by Enercorp instruments ltd. Even if Enercorp instruments ltd has been advised of the possibility of such damage including without limitation, liability for loss of use, loss of work in progress, downtime, loss of data, loss of goodwill, loss of revenue or profits, failure to realize savings, loss of products of Buyer or other use or any liability of Buyer to a third party on account of such loss or for any labour or any other expense, damage or loss occasioned by such product including personal injury or property damage. Enercorp instruments ltd and its officers, shareholders, directors, employees, agents and vendors will not be held liable for any kind of loss, direct or indirect damages including, but not limited to, business interruptions, injury, loss of any kind, damages of any kind resulting in any way from any errors or omission or any services or product, warranties of quality and merchantability, accuracy, and fitness for any particular purpose.
- INDEMNIFICATION: It is the sole and exclusive responsibility of Buyer to determine the suitability and ability to use any and all of Enercorp instruments ltd’s products for Buyer’s use. Buyer agrees to indemnify, defend, and hold Enercorp instruments ltd and Enercorp instruments ltd’s employees, officers, directors, owners and agents harmless from and against all claims, losses, expenses, damages and costs (including, but not limited to, direct, incidental, special, consequential, punitive, exemplary and indirect damages), and agrees to reimburse Enercorp instruments ltd its reasonable attorneys’ fees in defending any claim resulting from or arising out of Buyer’s use, misuse or inability to use the products, or any related activities, or any violation by Buyer of these conditions of order. It is Buyer’s sole responsibility to review and observe all the terms and condition stated hereby carefully prior to operating Enercorp instruments ltd’s products to make an informed decision.
- GOVERNING LAW: This contract shall be governed by and construed according to the laws of the Province of Ontario, Canada. The parties agree that any and all legal proceedings pursuant to this contract shall take place under the jurisdiction of the courts of the Province of Ontario in the judicial district of Toronto, Canada. January 1st, 2020.
Terms and Conditions are subject to change without prior notice. The latest version of Terms and Conditions take precedence, and can be found on our website @ www.enercorp.com .