1. GENERAL. This document is an offer or counter offer by Highland Equipment Inc. (“Highland”) to sell the goods and/or services described in it in accordance with these terms and conditions to Purchaser (“Purchaser”), is not an acceptance of any offer made by Purchaser, and is expressly conditioned upon Purchaser’s assent to these Terms and Conditions of Sale. Highland objects to any additional or different terms contained in any purchase order or other communication previously or hereafter provided by Purchaser to Highland. No such additional or different terms or conditions will be of any force or effect. The terms contained in or incorporated into this document will be the entire agreement between Highland and Purchaser on the subject of the transaction described herein; and there are no conditions to that agreement that are not so contained or incorporated. THIS OFFER AND THAT AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAWS OF THE PROVINCE OF ONTARIO, CANADA (WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS). No accepted offer may be cancelled or altered by Purchaser except upon terms and conditions accepted by Highland in writing; and no changes to this document will be binding unless set forth in writing and manually signed by Highland. This offer may be revoked by Highland at any time before it is accepted by Purchaser, and shall automatically expire 30 calendar days after its date if Purchaser has not accepted it before then. Neither Purchaser’s acceptance of this offer nor any conduct by Highland (including but not limited to shipment of goods) shall oblige Highland to sell to Purchaser any quantity of goods in excess of the quantity that Purchaser has committed to purchase from Highland at the time of such acceptance or conduct.
2. PRICES. Unless otherwise specified, quoted prices are F.O.B. Highland facility, Toronto, Ontario, and are firm for thirty (30) days from the date of quotation. They are based upon all specifications and qualifications made by Highland and these Terms and Conditions of Sale. Unless otherwise specified in the quotation, prices do not include shipping, transport insurance, or export packing. Should it become necessary to meet standards, codes, designs or other requirements not specified in the quotation, the additional costs thereby incurred will be charged to Purchaser.
3. PAYMENT. All payment terms set forth in this document are subject to Highland’s approval of Purchaser’s credit, in Highland’s discretion; and if such approval is withheld, payment shall be due in advance of Highland’s performance. Payment shall be made in the manner and at the times specified in the quotation and/or the contract. Should Purchaser delay in fulfilling any of its payment obligations, Highland may postpone without penalty the fulfillment of its own obligations by the equivalent amount of time and any extra costs incurred by Highland due to Purchaser’s delay will be charged to Purchaser. Purchaser further agrees to pay interest of one and oneͲhalf (1 1/2%) percent per month or at the legal maximum, whichever is less, on all overdue invoices. If production or shipment of completed goods, or other Highland performance is delayed by Purchaser, Highland may immediately invoice, and Purchaser shall pay the percentage of the purchase price corresponding to the percentage of completion; in addition, Purchaser shall compensate Highland for storage of completed goods or work in process during such delay, whether stored at Highland’s facility or an independent storage company’s facilities.
4. WARRANTY.
A. Highland warrants the equipment sold by Highland (“Equipment”) to be free from defects in materials and workmanship under normal use and proper maintenance for a period of one (1) year from the date of installation or fifteen (15) months from the date of delivery, whichever is first to occur. If within such period any such Equipment shall be proved to Highland’s satisfaction to be defective, the affected part will be repaired or replaced free of charge, F.O.B. Highland’s loading dock. This warranty does not apply to: fragile parts and components where a shorter life is normally expected; items which are part of normal maintenance; or items Highland receives from outside vendors (motors and controls as an example), the warranty with respect to which shall be limited to that which is actually received by Highland from such vendors. This warranty extends only to original end users of Equipment.
B. Highland’s obligation (and Purchaser’s right or recourse) under the foregoing warranty and under any other contract warranty or performance guarantee, if any, shall be limited to the repair or replacement (at Highland’s option) of the Equipment in question or parts thereof, and does not include shipping costs or the cost of field labor for removing or reinstalling such parts or Equipment. No such repair or replacement shall extend the original warranty period. Such repair or replacement (whichever Highland determines, in its discretion, to provide) shall be Highland’s sole obligation and Purchaser’s exclusive remedy for any deficiency in goods furnished hereunder, and shall be conditioned upon Purchaser’s return of such goods to Highland, F.O.B. Highland’s loading dock.
C. SAID WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES (WHETHER WRITTEN, ORAL OR IMPLIED) AND HIGHLAND EXPRESSLY DISCLAIMS AND EXCLUDES THE WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR ANY PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. ADDITIONALLY, NO WARRANTY IS MADE REGARDING THE EFFICACY OF ANY CLEANING AGENT OR OTHER CHEMICAL USED IN CONNECTION WITH THE EQUIPMENT. Highland’s liability shall not be extended because of any advice or assistance given by Highland in connection with the design, sale, installation, use, performance, repair or replacement of any product or service not sold by Highland. If any performance guarantees on equipment are given, such guarantees will be deemed to have been fully satisfied when, during installation and/or commissioning, Highland causes the equipment to have the capacity to achieve such performance, or is excused from so doing by any act or omission of Purchaser or other cause beyond Highland’s control.
D. If the Equipment is being sold to Purchaser for resale or lease to others, Purchaser shall make the foregoing warranty an integral part of all such resales or leases and shall not in any way vary the terms or conditions of such warranty. In the event of such resale or lease Purchaser shall indemnify and save Highland harmless from and against all claims, suits, liability and expenses (including attorney’s fees) based upon any actual or alleged act or omission of Purchaser and/or those acting on its behalf, including without limitation improper installation and/or unauthorized alteration of the Equipment and unauthorized variation from Highland’s standard warranty.
5. CONSEQUENTIAL DAMAGES AND OTHER LIABILITY. Highland’s liability with respect to the goods or services sold hereunder shall be limited to the warranty provided in section 4 and Highland’s obligations under section 9 of these Terms and Conditions of Sale and, with respect to any other breaches of its contract with Purchaser, shall be limited to the contract price. HIGHLAND SHALL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR UNDER OTHER THEORIES OF LAW OR EQUITY, WITH RESPECT TO GOODS OR SERVICES SOLD BY HIGHLAND, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO. Without limiting the generality of the foregoing, Highland specifically disclaims any liability for property damages, penalties, special or punitive damages, damages for lost profits or revenues, downͲtime, lost good will, cost of capital, cost of substitute goods or services, or for any other types of economic loss, or for claims of Purchaser’s customers or any third party for any such damages, costs or losses.
UNDER NO CIRCUMSTANCES SHALL HIGHLAND BE LIABLE UNDER ANY LEGAL THEORY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL OR OTHER DAMAGE OF ANY KIND IN CONNECTION WITH THE DESIGN, SALE, INSTALLATION, COMMISSIONS, USE, PERFORMANCE, REPAIR OR REPLACEMENT OF THE EQUIPMENT EXCEPT AS HEREIN SET FORTH. HIGHLAND’S LIABILITY SHALL IN NO EVENT BE GREATER THAN THE SELLING PRICE OF THE PARTS OR EQUIPMENT IN QUESTION.
Purchaser shall indemnify and hold harmless Highland from and against any and all losses, liabilities, damages and expenses (including but not limited to attorneys’ fees and other costs of defense) that Highland may incur as a result of any claim by Purchaser or by Purchaser’s customers or by any third party arising out of or in connection with the goods or services sold hereunder, including but not limited to any such claim based upon the negligence of Highland in designing, manufacturing, performing and/or selling such goods or services, unless such losses, liabilities, damages or expenses are ultimately determined to be attributable solely to the willful misconduct of Highland.
6. OWNERSHIP AND RISK OF LOSS. Risk of loss shall pass to the Purchaser upon surrender of the Equipment to a carrier for delivery to Purchaser or upon actual delivery by Highland. Title shall pass to Purchaser upon payment in full for the item in question.
7. TAXES AND FEES. Unless otherwise specified, all taxes, duties, permits, licenses, license fees, and inspections will be paid by Purchaser. These include, but are not limited to: manufacturer’s tax, occupation tax, use tax, sales tax, excise tax, value added tax, duty, custom, inspection or testing fee, or any other tax, fee, interest or charge of any nature whatsoever imposed by any governmental authority on or measured by the transaction between Highland and Purchaser; import duties and surcharges; building and operating permits; and registration and inspections fees. In the event Highland is required to pay any such taxes or other charges, Purchaser shall reimburse Highland therefor on demand.
8. DRAWINGS AND DESCRIPTIVE DOCUMENTS. THE SPECIFICATIONS, PRICES AND PERFORMANCE DATA INCLUDED IN CORRESPONDENCE, BROCHURES, DRAWINGS AND OTHER MATERIALS ARE AN APPROXIMATE GUIDE AND ARE BINDING ONLY TO THE EXTENT THAT THEY ARE BY REFERENCE EXPRESSLY INCLUDED IN THE CONTRACT. ANY DRAWINGS OR TECHNICAL DOCUMENTS INTENDED FOR USE IN THE FABRICATION OR INSTALLATION OF THE EQUIPMENT AND SUBMITTED TO PURCHASER PRIOR OR SUBSEQUENT TO THE FORMATION OF THE CONTRACT REMAIN THE EXCLUSIVE PROPERTY OF HIGHLAND AND SHALL BE TREATED AS CONFIDENTIAL INFORMATION UNLESS HIGHLAND HAS IN WRITING INDICATED A CONTRARY INTENT. THEY MAY NOT, WITHOUT HIGHLAND’S WRITTEN CONSENT, BE UTILIZED BY PURCHASER FOR PURPOSES OUTSIDE OF THE CONTRACT OR COPIED, TRANSMITTED OR COMMUNICATED TO ANY THIRD PARTY.
Purchaser will review and promptly approve in writing all Equipment and site preparation drawings and other specifications, which may be provided by Highland for approval purposes. Purchaser will be responsible for costs and all delays in fabrication, shipping, installation or commissioning which result from any approval delays or requested changes by Purchaser.
9. PATENT INFRINGEMENT. Highland represents that the Equipment does not infringe any valid U.S. patent. This does not apply: to any uses of Equipment not specified by Highland in the contract; or in a process, method or system not designed by Highland; or to any Equipment manufactured according to Purchaser’s specification or design. In the event of such infringement Highland shall either obtain for Purchaser the right to use the infringing Equipment or shall repurchase same less depreciation. This paragraph states Highland’s sole liability for such infringement.
To the extent that any goods or services that Highland furnishes to Purchaser are manufactured in accordance with drawings, designs or specifications proposed or furnished by Purchaser, Highland shall not be liable, and Purchaser shall indemnify and hold harmless Highland from and against any and all losses, liabilities, damages, claims and expenses (including but not limited to Highland’s reasonable attorneys’ fees and other costs of defense) incurred by Highland as a result of any claim of patent, trademark, copyright or trade secret infringement, or infringement or any other proprietary rights of third parties.
10. DELIVERY AND FORCE MAJEURE. Highland reserves the right to make delivery in installments, unless otherwise expressly stipulated herein; all such installments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve buyer of its obligations to accept remaining deliveries.
Claims for shortages or other errors in delivery must be made in writing to Highland within 10 calendar days after receipt of shipment; and failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Purchaser. Claims for loss of or damage to goods in transit must be made to the carrier, and not to Highland.
All delivery dates are approximate. Highland shall not be liable for any losses or damages as a result of any delay or failure to deliver due to any cause beyond Highland’s reasonable control, including but not limited to any act of God, act of Purchaser, embargo or other governmental act, regulation or request, fire, accident, strike, slowdown, war, riot, delay in transportation, inability to obtain necessary labor, materials or manufacturing facilities, casualty, terrorist act, police action, currency restrictions, shortage of transport, import or export restrictions, failure or delay of vendors, restrictions in the use of power, or any other cause beyond Highland’s reasonable control, even if foreseeable or anticipated. In the event of any such delay, the date of delivery shall be extended for a period equal to the time lost because of the delay. Purchaser’s exclusive remedy for other delays and for Highland’s inability to deliver for any reason shall be rescission of its agreement to purchase.
11. TOOLS. Any dies, jigs or tools that Highland manufactures or acquires in connection with its performance hereunder shall remain the property of Highland, notwithstanding any charges to Purchaser therefor. Any such charges convey to Purchaser the right to have the tools, dies or jigs used by Highland for performance hereunder, but do not convey title or right of possession or any other right.
12. CHANGES. Highland may at any time make such changes in design and construction of products, components or parts as Highland deems appropriate, without notice to Purchaser. Highland may furnish suitable substances for materials unobtainable because of priorities or regulations established by governmental authority or nonͲavailability of materials from suppliers.
13. OTHER PROVISIONS. In the event of insolvency, bankruptcy, or similar proceeding brought by or against Purchaser, Highland may suspend all further performance under the contract until all remaining sums to be paid under the contract have been fully paid in advance. The contract may not be varied other than by written instrument executed by both parties except that stenographic or clerical errors shall be corrected. Neither party has authority to act for nor to bind the other, and their status visͲàͲvis each other is that of independent contractors only.