Metal Fabricators and Welding Ltd : Terms and Conditions of sale

METAL FABRICATORS AND WELDING LTD.

STANDARD TERMS AND CONDITIONS OF SALE

1. METAL FABRICATORS AND WELDING LTD., herein called MF&W, agrees with the Purchaser, that for a period of one year after the date of delivery, MF&W with respect to its manufactured product will repair or replace f.o.b. MF&W any parts as shall under normal use and service, appear to have been defective in workmanship or material or shall fail to meet the performance standards, if any set forth in the quote, provided that the following conditions are complied with:

(a) MF&W is promptly notified in writing of such defect immediately upon discovery of same and, if MF&W requests, the defective part or parts are promptly forwarded to MF&W’s plant where made; and

(b) the defect is not due to faulty installation, misalignment of parts, vibration, ordinary wear and tear, corrosion, erosion, faulty lubrication, unusual pressure surges or pulsation, water hammer, temperature shocking, or fouling; and

In respect of other equipment, or accessories, included separately or in the manufactured product “sold”, purchased or obtained from or made by other manufacturers or their supplier, the Purchaser accepts such equipment, or accessories on the basis of the particular manufacturer’s warranty, if any and no other, and the Purchaser agrees that there is no warranty, representation, condition or agreement in respect of such equipment, or accessories, on the part of MF&W, whatsoever relating to such equipment or accessories.

It is agreed and understood that MF&W’s liability in respect of the sale is strictly limited to the replacement of parts as herinbefore specified and that MF&W shall not, in any event, be liable for any damages whether for loss of use or business interruption or any other claim for damages, consequential or otherwise, whatsoever.

There is no warranty, condition or representation of any nature whatsoever, expressed or implied, by statute or otherwise, except as herein contained.

MF&W does not assume responsibility for the accuracy of the Purchaser’s calculations or specifications or design specifications.

If, at the request of the Purchaser, field service is rendered and the fault is found not to be with MF&W’s manufactured product, the Purchaser shall reimburse MF&W for the time and expense of the field representative. MF&W will not accept responsibility for service or labour incurred by the purchaser without prior express approval of MF&W.

2. PRICE. All prices quoted are f.o.b. MF&W, unless otherwise specified. Prices quoted are subject to change without notice prior to MF&W’s acceptance of the Purchaser’s Purchase Order, and it is understood that the price stated herein is based upon our cost of material and material surcharges where applicable. If MF&W’s cost of materials purchased from others increases MF&W’s cost, the amount of such increased cost shall be added to the price quoted. This quote is presented with the understanding that any sales, use, excise, or any other tax imposed by any present or future law on any of the materials, parts or equipment included in this quote or measured by the quantity or value thereof or any part of the receipts from the sale thereof, exclusive of taxes upon net income, shall be added to the amount to be paid hereunder.

RISK. Risk to the manufactured product shall pass to the Purchaser when delivered to the carrier of MF&W’s selection or to the carrier designated by the Purchaser.

4. LIEN. MF&W holds a vendor’s lien on the manufactured product to secure payment of the purchase price, and the Purchaser agrees to execute such documents as may be required by our solicitors to make fully effective this provision.

5. PAYMENT. Terms are net 30 days following shipment or notification to you that the order is ready for delivery. Payment shall be due pro-rata on all partial shipments. The extension of credit is at all times subject to the approval of our credit department. If the Purchaser’s financial condition at any time does not in our judgement justify continuance of the work or shipment hereunder on specified terms, we may require full or partial payment in advance. For those customers who elect to go beyond 30 days, a service charge of 1.5% per month, 18% per annum, will be added for each 30 day increment or part thereof for which the payment is late. The service charge will be billed each period based on account analysis and aging.

6. DELIVERY. Delivery schedules specified in the quotation are approximate only, and shipment will be made within reasonable proximity thereto. We will not be responsible for any damage whatsoever caused by delay in shipment whether the same results from causes within or beyond the control of MF&W.

7. CANCELLATION. Orders entered on the MF&W books may not be cancelled or modified, except with MF&W’s consent and upon terms which will indemnify MF&W against all loss.

8. DESIGN CHANGES. MF&W shall not be required to make any changes in applicable drawings or specifications requested by the Purchaser after acceptance of MF&W’s quote which shall increase MF&W’s cost until there has been agreement upon the price adjustments for such changes.

9. DESIGN IMPROVEMENTS. MF&W reserves the right to make changes in design and changes or improvements in its manufactured product without assuming any obligation to install the same upon its products theretofore manufactured.

10. OWNERSHIP OF PLANS. All plans, drawings or specifications furnished by MF&W to the Purchaser shall remain the property of MF&W and the Purchaser agrees that it will make no use of such plans, drawings, or specifications and will not disclose the same to others without the express written permission of MF&W.

11. PATENT RIGHTS. MF&W agrees to hold the Purchaser harmless against charges of infringement of any Canadian patent on use and operation of any apparatus of MF&W’s manufacture purchased from it, but assumes no responsibility for infringement resulting from the use of its manufactured product in connection with other apparatus not furnished by it nor to equipment made to the Purchaser’s design, drawing, or specifications.

12. INSPECTION. The product may be inspected by the Purchaser’s representative during manufacture at MF&W’s plant. Particular inspection requirements of the Purchaser must be stated in the Purchase Order. Unless it is otherwise expressly agreed in writing final inspection and acceptance will be made at MF&W’s plant.

13. TESTING. Any performance test of equipment shall be made only in accordance with procedures to be agreed upon in writing between MF&W and the Purchaser.

14. LIMITATION. MF&W shall not be responsible or liable for any loss, damage, delay or failure to deliver the product herein described caused by fire, strikes, differences with workers, civil or military authority, insurrection or not, by failure of other manufacturers or suppliers to deliver equipment or materials when promised, or by any other cause which is unavoidable or beyond the reasonable control of MF&W.

15. MODIFICATION OF TERMS OF QUOTATION. This quotation, if accepted, shall constitute the entire agreement between the parties, and these conditions may be modified only by writing on the face of the quotation in the office of Metal Fabricators and Welding Ltd. In the event of conflict between these terms and the terms of any Purchase Order issued by the Purchaser, the Purchaser agrees that the terms of this quotation shall govern. Clerical and stenographic errors are subject to correction.

16. FORCE MAJEURE. Any delay in or failure of performance of MF&W shall not constitute default herein under if the extent of such delays or failure or performance is caused by occurrence beyond the control of MF&W, including but not limited to acts of God, expropriation or confiscation of facilities, act of war, rebellion, fires, strikes, labour shortages, inability to secure materials, thefts, accidents or any causes whether or not of the same class or kind as those specifically above named which are not within the control of MF&W and which by the exercise of reasonable diligence, MF&W is unable to prevent or prevail against. Should MF&W be delayed by any acts or events of this provision, then the time for performance by MF&W shall be extended by a period of time equal to the time lost by reason of such delay.