IN CONSIDERATION of the sum of One Dollar ($1.00) now paid by the parties hereto to each other, in consideration of the sale of goods by GOLI ELECTRIC INC. (the “Seller“) to Buyer, and for other good and valuable consideration the sufficiency of which is hereby acknowledged by the parties hereto, the parties covenant and agree as follows:
1. Purchase and Sale: Subject to the Terms contained herein, Seller agrees to sell, assign, transfer and deliver to Buyer and Buyer agrees to purchase from Seller the goods sold to Buyer and specified in Seller’s order confirmation (the “Goods“). The Purchase Price for the Goods shall be the amount specified in the Price Quotation. Goods are sold FOB (as defined in INCO Terms 2020) Seller’s shipping point to Buyer. Unless otherwise agreed in writing: (a) Seller will arrange shipping and insurance at the sole cost of Buyer; and (b) Buyer shall pay a deposit on the price upon acceptance of these Terms in the amount agreed upon.
2. Delivery: Delivery, shipment and installation dates are estimated dates only, and unless otherwise stated, are calculated from the date of receipt by Seller of all required information. Delivery, shipment, and installation dates are subject to extension for delays caused by a Force Majeure Event or mutually agreed changes to the order. Seller shall not be liable for any losses or damages, whether direct, indirect, special or consequential which may arise from delays caused by any of the above.
3. Taxes: Buyer shall pay any and all taxes and assessments which may be levied upon or assessed against the Goods, including any federal, provincial, state, county, municipal, sale, use or equivalent taxes applicable to this transaction. Any such tax shall be payable by Buyer, in cash, upon delivery of the equipment at the f.o.b. point. In the event that any such taxes are imposed or assessed against Seller, Buyer agrees to indemnify and save harmless Seller from any and all such taxes and related costs, expenses, charges, penalties, and levies, including the costs of counsel, court costs and any amounts paid in judgment or settlement.
4. Product Warranties:
(a) Seller warrants new Goods manufactured by Seller to be free from defects in material or workmanship for a period of two years from the date of sale. Seller’s obligation under said warranty is limited to replacing or repairing at Seller’s option and upon examination by Seller, any part or parts of such Goods which have been promptly reported by Buyer in writing as having been defective in material workmanship at the time of delivery thereof. Seller’s obligation under this warranty is limited, at its sole option, to correction of the defective parts if any, or removal of the Goods at Seller’s expense, in which latter case Seller will refund payment theretofore made by Buyer hereunder. This warranty shall only apply to the original Buyer of the Goods.
(b) The warranties provided herein will be void and shall not apply to defects or damage to the Goods caused by ordinary wear and tear nor shall the warranties apply to defects or damage to the Goods caused by neglect, misuse, improper transportation, negligent or improper deployment or causes other than ordinary use in accordance with Seller’s instructions.
5. Limitation of Liability: EXCEPT FOR THE EXPRESS WARRANTIES SET ABOVE, SELLER DISCLAIMS ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, A WARRANTY OF THE QUALITY, UTILITY, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR ANY OTHER CHARACTERISTIC OF THE PRODUCT. WITHOUT IN ANY WAY LIMITING THE GENERALITY OF THE FOREGOING, SELLER’S LIABILITY FOR DAMAGES, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON PROPRIETARY RIGHTS, CONTRACT OR TORT, SHALL NOT IN ANY CIRCUMSTANCES WHATSOEVER EXCEED THE AGGREGATE OF ALL AMOUNTS THERETOFORE PAID BY BUYER TO SELLER UNDER THIS AGREEMENT. IN NO EVENT SHALL SELLER BE LIABLE FOR DAMAGES IN RESPECT OF SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, INCLUDING, BUT NOT LIMITED TO, LOST BUSINESS REVENUE, FAILURE TO REALIZE EXPECTED SAVINGS, OR ANY CLAIM AGAINST SELLER BY ANY OTHER PARTY.
6. Compliance with Laws: Seller shall be solely responsible for securing any and all permits necessary to comply with all laws, statutes, regulations, guidelines and municipal by-laws (including all safety, health and sanitation laws, ordinances and regulations) related to the installation, operation or use of the Goods.
7. Default: In the event of a default by Buyer hereunder, Seller, at its option, may declare the entire unpaid portion of the purchase price to be immediately due and payable, retain all sums paid by buyer and take immediate possession of the equipment, without notice, demand, or legal process, and without liability to Buyer in damages for so doing.
8. Non-Cancellation: This Agreement is non-cancellable by Buyer. In addition to any other rights and remedies of Seller set forth herein or available at law, If Buyer cancels the contract at any time prior to delivery of the Goods, Buyer shall at Seller’s option pay all reasonable cancellation charges incurred by Seller, which shall include expenses already incurred, the cost to Seller of cancelling it and Seller’s anticipated profit which Buyer and Seller agree is a genuine pre-estimate of Seller’s liquidated damages and are not a penalty.
9. Term: All liabilities and obligations of Seller under this Agreement terminate 12 months after the date of shipment of the Goods. The foregoing warranties are in lieu of all other warranties express or implied, and of all obligations or liabilities on the part of Seller for damages arising out of or in connection with the use or performance of the Goods. This Agreement expressly supersedes any other terms and conditions relating to the sale of the Goods to Buyer hereunder, excepting those terms respecting purchase price and terms of delivery listed set out in the order acknowledgment for the sale of the Goods shall be incorporated by reference herein.
10. General Contractual Provisions:
(a) Governing Law: This Agreement shall be governed by the laws of the Province of Ontario, Canada and the federal laws of Canada applicable therein. The parties agree that the United Nations Convention on Contracts for the Sale of Goods does not apply to this Agreement and is strictly excluded. Subject to the provisions of Section 10 (b) hereof, the parties attorn to the courts of the province of Ontario.
(b) Arbitration:
(i) Except as expressly set out herein, any dispute or need of interpretation arising out of this Agreement will be submitted to binding arbitration by one arbitrator with over fifteen (15) years of professional experience as a mediator, lawyer, arbitrator and/or judge. Such arbitrator will either be as mutually agreed by the parties within thirty (30) calendar days after written notice from either Party requesting arbitration or failing agreement with such time period, will be selected under the rules of the Arbitration Act, 1991 (Ontario). Such arbitration will be held in Toronto, Ontario.
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(ii) The arbitrator’s decision will be final and binding and from which there shall be no appeal, subject to any right to appeal pursuant to the Arbitration Act, 1991 (Ontario), and shall deal with the question of costs of arbitration and all related matters. Either party may initiate arbitration by written notice to the other party. The Parties agree that the foregoing shall in no way preclude either Party from any equitable remedy (including injunctions) and the application to the Courts of Ontario therefor.
(iii) All disputes referred to arbitration (including the scope of the agreement to arbitrate, any statute of limitations, set-off claims, conflict of laws rules, tort claims and interest claims) shall be governed by the substantive law of Ontario. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it (including any pleadings, briefs or other documents submitted or exchanged, any testimony or other oral submissions and any awards) shall not be disclosed beyond the arbitrator, the parties, their counsel and any person necessary to the conduct of the proceeding, except as may lawfully be required in judicial proceedings relating to the arbitration or otherwise.
(c) Force Majeure: Notwithstanding anything to the contrary contained herein, if any party hereto is bona fide delayed or hindered in or prevented from the performance of any work, term, covenant or act required hereunder, save and except payment obligations required pursuant hereto, by reason of strikes, labour disputes, lock outs, inability to procure materials or services (including without insufficiency of transportation), power failures, restrictive governmental laws and/or regulations, riots, insurrections, sabotage, epidemics or pandemics whether so declared or not rebellions, wars, acts of God; or other reasons whether of a like nature or not which is not the fault of the party delayed in performing any work, term, covenant or act required hereunder (each a “Force Majeure Event”), then performance of the same is excused for the period of the delay and the party so delayed shall be entitled to perform such work, term, covenant or act within a reasonable time period after the expiration of the period of such delay; provided, however (i) a Force Majeure Event shall not relieve any obligations to pay monies; and (ii) if the delay shall exceed thirty (30) days, then at any time after the expiry of such period, any party hereto may terminate this agreement forthwith by notice in writing.
(d) Entire Agreement: This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersede all prior agreements, understandings, negotiations, and discussions of the parties, whether oral or written, and there are no representations, warranties or other agreements between the parties in connection with the subject matter hereof, except as specifically set forth herein and therein. Any terms and conditions in any purchase order or other document of Buyer and the website or sales and marketing materials of Seller are expressed excluded. No supplement, modification, waiver or termination of this Agreement shall be binding unless executed in writing by the party to be bound thereby. No waiver of any provision of this Agreement shall be deemed to or shall constitute a waiver of any other provisions, whether or not similar, nor shall such waiver constitute a continuing waiver unless expressly provided.
(e) Headings: Section headings contained herein are included solely for convenience of reference, are not intended to be full or accurate descriptions of the contents thereof and shall not be considered part of this Agreement.
(f) Counterparts: This Agreement may be executed by the parties in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original, and such counterparts shall together constitute one and the same instrument. Notwithstanding the date of execution and delivery of such counterparts, their date of execution and delivery shall be deemed to be the date first written above. To evidence the fact that it has executed this Agreement, a party may send a copy of its executed counterpart to all other parties by facsimile transmission or by electronic mail in Portable Document File (PDF) format. That party shall be deemed to have executed this Agreement on the date it sent such facsimile or electronic transmission.
(g) Successors and Assigns: This Agreement shall ensure to the benefit of and be binding upon the respective successors and assigns of each of the parties hereto.
(h) Negotiations: This Agreement has been fully negotiated between the parties, and in interpreting the Agreement, there shall be no presumption that either party drafted the language but rather the parties shall be deemed to have shared equally in the drafting of this Agreement.