Napier-Reid Standard Terms & Conditions

1. Offer, Governing Provisions and Cancellation. This document is an offer or counter-offer by Napier-Reid (“Seller”) to sell the goods and/or services described in it in accordance with these terms and conditions, is not an acceptance of any offer made by buyer, and is expressly conditioned upon buyer’s assent to these Terms and Conditions of Sale. Seller objects to any additional or different terms contained in any request for proposal, purchase order, acknowledgement or other communication previously or hereafter provided by buyer to Seller. 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 Seller and buyer on the subject of the transaction described herein; there are no conditions to that agreement that are not so contained or incorporated. THIS OFFER AND THAT AGREEMENT WILL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAWS OF THE STATE OR PROVINCE IN WHICH THE OFFICE OF THE SELLER THAT ISSUED THIS OFFER IS LOCATED (WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS). THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER WILL NOT BE GOVERNED BY THE 1980 U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.

No accepted offer may be cancelled or altered by buyer except upon terms and conditions accepted by Seller in writing, and no changes to this document will be binding unless set forth in writing and manually signed by Seller. This offer may be revoked by Seller at any time before it is accepted by buyer, and will automatically expire 30 calendar days after its date if buyer has not accepted it before then. Neither buyer’s acceptance of this offer nor any conduct by Seller (including but not limited to shipment of goods) will oblige Seller to sell to buyer any quantity of goods in excess of the quantity that buyer has committed to purchase from Seller at the time of such acceptance or conduct.

2. Credit Approval; Payment Terms; Storage. All payment terms set forth in this document are subject to Seller’s approval of buyer’s credit, in Seller’s discretion; if such approval is withheld, payment will be due in advance of Seller’s performance. Except as otherwise provided in our proposal/quotation or in the preceding sentence, payment is due Net 30 days from date of invoice. Interest will be charged at the lesser of (i) 18% per year, or (ii) the highest rate permitted by applicable law, on accounts more than 30 calendar days past due. Company reserves the right, among other remedies, to delay or suspend further shipments or require full or partial cash payment in advance until all sums due have been paid. Purchaser shall be liable for all costs and expenses incurred by Company in collecting any overdue amounts, including without limitation reasonable attorneys’ fees. Any pro-rata payments required hereunder shall be made as shipments are made

3. Delivery, Claims and Force Majeure. Unless otherwise provided on the face of this document, goods shall be delivered to buyer F.O.B. Seller’s loading dock or, for ultimate destinations outside of the U.S., EXW Seller’s loading dock (as the latter shipping term is defined in Incoterms 2010). Delivery of products to the carrier will constitute delivery to buyer, and regardless of shipping terms or freight payment, buyer will bear all risk of loss or damage in transit. Seller 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 will not relieve buyer of its obligations to accept remaining deliveries.

Claims for shortages or other errors in delivery must be made in writing to Seller within 10 calendar days after receipt of shipment, and failure to give such notice will constitute unqualified acceptance and a waiver of all such claims for such shortages or delivery errors by buyer. Claims for loss of or damage to goods in transit must be made to the carrier, and not to Seller.

All delivery dates are approximate. Seller will not be liable for any losses or damages as a result of any delay or failure to deliver due to any cause beyond Seller’s reasonable control, including but not limited to any act of God, act of buyer, embargo or other governmental act, regulation or request, fire, accident, strike, slowdown, war, act of terrorism, riot, delay in transportation, or inability to obtain necessary labor, materials or manufacturing facilities. In the event of any such delay, the date of delivery will be extended for a period equal to the time lost because of the delay. Buyer’s exclusive remedy for other delays, and for Seller’s inability to deliver for any reason, will be rescission of its agreement to purchase.

4. Warranties. Seller warrants any goods provided hereunder to be free from nonconformity to any attached specifications, and free of defects in materials and workmanship, appearing within twelve (12) months after substantial completion or eighteen (18) months after delivery, whichever occurs first.. If within such period any such goods shall be proved to Seller’s satisfaction to be defective, the affected part will be repaired or replaced free of charge, F.O.B. Seller’s loading dock or, for customers outside of the U.S., EXW Seller’s loading dock (as the latter shipping term is defined in Incoterms 2010, for purposes of which definition buyer will have the responsibilities of the “seller”), or Seller will refund the purchase price of the affected part. Such repair, replacement or refund (whichever Seller determines, in its discretion, to provide) will be Seller’s sole obligation and buyer’s exclusive remedy for any deficiency in goods furnished hereunder, and will be conditioned upon buyer’s return of such goods to Seller, F.O.B. Seller’s loading dock or, for customers outside of the U.S., DDP Seller’s loading dock (as the latter shipping term is defined in Incoterms 2010, for purposes of which definition buyer will have the responsibilities of the “seller”). Any parts repaired or replaced under this warranty are warranted only for the balance of the warranty period on the part that was repaired or replaced.

Seller has no liability for products that are not installed or operated according to the manufacturer’s recommended installation, commissioning, start-up and operating procedures.

Seller warrants that any services it provides hereunder will be performed in a manner consistent with customary practice in its industry. Should a failure to conform to this warranty appear within thirty 30 calendar days after completion of any services, Seller will, if promptly notified thereof in writing, either perform the services again, properly and without charge, or refund the price charged for such services. Such reperformance or refund (whichever Seller determines, in its discretion, to provide) will be the buyer’s exclusive remedy and the Seller’s sole liability with respect to any deficiency in services furnished hereunder.

THE ABOVE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED. SELLER EXPRESSLY DISCLAIMS AND EXCLUDES ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.

Any description of the products, whether in writing or made orally by Seller or its agents, specifications, samples, models, bulletins, drawings, diagrams, engineering sheets or similar materials used in connection with Buyer’s order are for the sole purpose of identifying the products and shall not be construed as an express warranty. Any suggestions by Seller or Seller’s agents regarding use, application or suitability of the products shall not be construed as an express warranty unless confirmed to be such in writing by Seller.

5. Patents, Trademarks and Copyrights. To the extent that any goods or services that Seller furnishes to buyer are manufactured in accordance with drawings, designs or specifications proposed or furnished by buyer, Seller will not be liable, and buyer will indemnify and hold harmless Seller from and against any and all losses, liabilities, damages, claims and expenses (including but not limited to Seller’s reasonable attorneys’ fees and other costs of defense) incurred by Seller as a result of any claim of patent, trademark, copyright or trade secret infringement, or infringement or any other proprietary rights of third parties.

6. Consequential Damages and Other Liability. Seller’s liability with respect to the goods or services sold hereunder will be limited to the remedy and indemnity provided in sections 4 and 5 of these Terms and Conditions of Sale and, with respect to any other breaches of its contract with buyer, will be limited to the contract price of the affected goods. SELLER WILL 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 SELLER, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO. Without limiting the generality of the foregoing, Seller specifically disclaims any liability for property damages, penalties, special or punitive damages, damages for lost profits or revenues, down-time, lost good will, cost of capital, cost of substitute goods or services, or for any other types of economic loss, or for claims of buyer’s customers or any third party for any such damages, costs or losses. SELLER WILL NOT BE LIABLE FOR, AND DISCLAIMS, ALL CONSEQUENTIAL, INCIDENTAL, INDIRECT AND CONTINGENT DAMAGES WHATSOEVER.

7. Buyer’s Indemnity. BUYER WILL INDEMNIFY AND HOLD HARMLESS SELLER FROM AND AGAINST ANY AND ALL LOSSES, LIABILITIES, DAMAGES AND EXPENSES (INCLUDING BUT NOT LIMITED TO ATTORNEYS FEES AND OTHER COSTS OF DEFENSE) THAT SELLER MAY INCUR AS A RESULT OF ANY CLAIM, OTHER THAN A CLAIM FOR THE REMEDIES PROVIDED IN SECTIONS 4 AND 5 OF THESE TERMS AND CONDITIONS OF SALE, BY BUYER OR BUYER’S CUSTOMERS OR BY ANY THIRD PARTY ARISING OUT OF OR RELATING TO THE GOODS OR SERVICES SOLD HEREUNDER, INCLUDING BUT NOT LIMITED TO ANY SUCH CLAIM BASED UPON THE NEGLIGENCE OF SELLER 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 SELLER.

8. Taxes and Other Charges. Any 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 Seller and buyer will be paid by buyer in addition to the prices quoted or invoiced. In the event Seller is required to pay any such taxes or other charges, buyer will reimburse Seller therefor on demand.

9. Changes. Seller may at any time make such changes in design and construction of products, components or parts as Seller deems appropriate, without notice to buyer. Seller may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by governmental authority, or non-availability of materials from suppliers.

10. Technical Information. Any sketches, models or samples submitted by Seller will remain the property of Seller and will be treated as confidential information unless Seller has in writing indicated a contrary intent. No use or disclosure of such sketches, models or samples, or any design or production techniques revealed thereby, will be made without the express, prior written consent of Seller.

11. Designs and Tools. Any design work performed by Seller, and any dies, molds, jigs or other tools that Seller manufactures or acquires, in connection with its performance hereunder will be and remain the sole property of Seller, notwithstanding any charges to buyer therefor. Any such charges convey to buyer the right to have the designs, dies, molds, jigs and/or other tools used by Seller for performance hereunder, but do not convey title or right of possession or any other right.

12. Permits. The Buyer shall have full responsibility for securing the requisite permits and compliance with all health and sanitation laws, ordinances and regulations pertaining to the installation of the products involved in a sewage treatment plant or other products sold by Seller.

13. Right to escalate due to supply chain. Once the Project is awarded, the Company and Purchaser will agree and finalize a revised/applicable Project schedule with payment milestones. If the approval to proceed to each milestone is not given within 14 days of the issuance of the required submittal or notification from the Company to the Purchaser, the Company reserves the right to adjust the sell price of this Purchase Order or add a surcharge based on actual increases incurred from its Suppliers due to the delay in the Project schedule.

14. 11. Arbitration. Any controversy or claim arising out of or relating to this contract/order or breach thereof will be finally settled by arbitration in accordance with the Rules of Commercial Arbitration of the Canadian Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction over the controversy or claim in the Province of Ontario. Arbitration proceedings shall occur in the province of Ontario.

15. Bankruptcy, Receivership, Or Insolvency Proceedings. Should bankruptcy, receivership or insolvency proceedings be instituted by or against the Buyer or should the Buyer make an assignment in favor of creditors, the unpaid balance of the purchase price shall immediately become due and payable at the option of the Company. Notwithstanding other arrangements to the contrary, the Company shall be free to enter premises where equipment for which the Company has not been fully paid may be located and remove said equipment as its property without prejudice to any further claims on amounts of damage which the Company may suffer from any cause.