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(i) In these Terms and Conditions of Sale (hereafter “Conditions”), “Conviron” means Controlled Environments Limited, Controlled Environments Inc., Conviron Europe Ltd., Conviron Germany GmbH, Conviron Science and Technology (Shanghai) Co. Ltd., Conviron Asia Pacific PTY Ltd., or any of them. “Purchaser” means the company, firm, individual or other party with whom Conviron contracts.
(ii) The acceptance of any order or specification, and terms of payment relating to same, is subject to approval by Conviron's head office. All sales contracts shall be effective only when approved and acknowledged, in writing, by Conviron's head office. Changes to orders that have already been accepted by Conviron must also be confirmed in writing and accepted by Conviron, and where the changes result in an increase in the original cost, the additional costs shall be paid to Conviron by the Purchaser.
(iii) All contracts entered into between Conviron and the Purchaser shall always be subject to these Conditions. In the event that the Purchaser has not received a copy of these Conditions in relation to a specific order, these Conditions shall nevertheless apply to the contract provided they had previously been made available to the Purchaser.
(iv) Any description contained in Conviron’s catalogues, datasheets, website, price lists or other promotional or informational material is intended to present a general description of Conviron’s products only. Specifications are subject to change without notice. Only that description as contained in the final written contract between Conviron and the Purchaser shall be considered final and actual.
(v) All prices quoted are exclusive of taxes, freight and duties, unless specifically stated otherwise. Taxes, freight and duties are payable by the Purchaser.
DELIVERY AND COMPLETION
(i) Shipping dates are approximate and based on prompt receipt of all necessary information by Conviron, including but not limited to signed approval drawings where appropriate. Shipping dates are provided in good faith, and Conviron shall make its best efforts to see that delivery is made within the time estimated, subject, however, to delays caused directly or indirectly by matters beyond its control, including but not limited to failure or delay in source of supply, acts of governmental authorities, transportation delays, acts of God, and accidents and disruptions such as fires, explosions, breakdowns of equipment and power shortages. In no event shall the failure to effect shipment in the time estimated give rise to damages or be considered cause for cancellation of the order where the delay is the result of circumstances beyond Conviron's control, or unless the delay is excessive.
(ii) Conviron shall deliver the goods to the address provided by the Purchaser or his agent (hereafter the “Address”).
(iii) Unless otherwise agreed to in writing, the risk in the goods that Conviron agrees to supply shall pass to the Purchaser as soon as delivery to the Address has been effected. Risk for the goods rests with the Purchaser during the installation and commissioning phase.
Unless otherwise agreed to in writing by Conviron:
(i) The Purchaser shall make payment to Conviron in accordance with the payment terms as defined in the quote document or order acknowledgment.
(ii) If neither the Quote nor the Order Acknowledgment speak to payment terms, and the matter of payment terms has not been agreed to otherwise in writing by Conviron, payment shall be made by the Purchaser to Conviron within thirty (30) days of delivery of the goods to the Address.
(iii) Conviron shall have a right of action against the Purchaser for the price of the goods whenever the payment of the price becomes due, whether or not the goods have been received by the Purchaser. Even though risk has passed to the Purchaser when delivery of the goods is made to the Address, ownership in the goods shall not pass to the Purchaser until such time as total payment has been received by Conviron.
(iv) In addition to any other rights of Conviron, interest is payable on all overdue accounts at the rate of 1.5% per month, or 18% per year.
(v) Where the Purchaser defaults under the contract or any contract with Conviron in respect of payment on the due date of any sum due to Conviron, Conviron, without liability, may postpone any further shipments or may cancel the contract or any other contract between Conviron and the Purchaser, including any warranty obligations, but without prejudice to any right which Conviron may have against the Purchaser in respect of the Purchaser’s default.
Unless otherwise agreed to by Conviron, once accepted by Conviron, orders shall not be subject to cancellation by the Purchaser, unless the Purchaser fully compensates Conviron for all costs incurred, either directly or indirectly, to the extent that they are recoverable at law.
If, after goods have been ordered by the Purchaser, the Purchaser seeks a postponement of delivery of those goods, Conviron shall invoice, and the Purchaser shall pay to Conviron the price of the goods according to the original schedule and terms of payment, as if delivery had been effected at the time originally agreed to. Further, the Purchaser shall be responsible for any extra costs resulting from the handling and storage of the goods, including insurance premiums. Prices quoted do not include extra costs of handling, warehousing and insuring goods.
INSTALLATION AND TESTING
If requested by the Purchaser, and subject to the availability of personnel and equipment, accessibility to the site and the state of the site conditions, Conviron shall perform the installation and testing of the goods. The installation, commissioning and testing costs, along with the responsibilities of the parties, shall be set out in the detailed quote.
When Conviron is contracted to perform product installation, the Purchaser shall advise Conviron, in writing, of the date on which the site will be ready for the installation of the goods. In the event that the site is not in a condition such that the installation can be completed on the specified date, the Purchaser shall compensate Conviron for any direct or indirect costs incurred as a result of the delay, to the extent that they are recoverable at law.
Similarly, when Conviron is contracted to test equipment, the Purchaser shall advise Conviron, in writing, of the date on which the site and goods will be ready for testing. In the event that the site is not in a condition such that the testing can be completed on the specified date, the Purchaser shall compensate Conviron for any direct or indirect costs incurred as a result of the delay, to the extent that they are recoverable at law.
Any technical information furnished by Conviron to the Purchaser relating to or as a result of an order shall be considered confidential unless otherwise indicated by Conviron, in writing, or unless required to be disclosed by governmental authority. Where the Purchaser is a general contractor, such information may be disclosed to the ultimate owner and/or user(s). In any event, such information shall not be reproduced, used or disclosed to others without Conviron's prior written consent, and shall be returned to Conviron upon request. Any information supplied by Conviron pertaining to a particular contract or job is to be used only in relation to that contract or job, and may not be used in other applications or for other jobs. All controller software is the property of Conviron, and is licensed for use by the Purchaser pursuant to the terms of the “Conviron License and Warranties for Central Software and Hardware”.
WARRANTY, LIABILITY AND THE LIMITATION THEREOF
All warranties, guarantees and conditions in respect of the goods, other than those expressly stated in Conviron’s standard warranty, are expressly excluded, including the implied warranties of merchantability and fitness for a particular purpose. Conviron (including its directors, officers, employees and agents) assumes no liability for indirect, incidental or consequential damages of any kind, including but not limited to lost profits, business interruption, or loss or damage arising out of the existence of any fungi or any spores, mycotoxins, allergens, odors, or any other substances, products or bi-products produced by, released by, or arising out of the current or past presence of fungi, mold or mildew. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the foregoing limitation or exclusion may not apply. In no event shall the liability of Conviron exceed the purchase price of the specific good giving rise to the alleged loss.
CONSTRUCTION AND SEVERABILITY
All Conditions in this document shall prevail over and supersede any contrary or inconsistent terms or conditions or other documents issued by the Purchaser, whether they have been communicated in the past or are communicated in the future. In the event that any provision of these Conditions is determined to be invalid or unenforceable, the remainder of the Conditions shall remain valid and enforceable to the maximum extent so as to achieve, as closely as possible, the original intentions.
The laws of the Province of Manitoba, in Canada, shall govern if any dispute arises hereunder, with the courts of the Province of Manitoba having exclusive jurisdiction.
Spec. # SPEC-TERM | Rev.10165_26 | 31-May-2017