Standard Terms and Conditions of Urban Machinery Corporation
Effective as of January 22, 2018
Effective as of January 22, 2018
SECTION 1: SCOPE.
These terms and conditions, apply to and form part of any Acknowledgment/Invoice, and together with any additional or different terms and/or conditions contained in any acceptance or acknowledgment which have been expressly agreed to in writing by Urban, shall constitute Buyer’s order (the “Order”) for the goods and/or services described in the Acknowledgment/Invoice (the “Goods”).
SECTION 2: ENTIRE AGREEMENT
The Order shall constitute the entire agreement between Urban and the Buyer. All representations, conditions, understandings, and warranties regarding the subject matter of the Order, whether past or contemporaneous, are merged herein or superseded hereby. Unless expressly agreed to in writing by designated representatives of both Urban and the Buyer, no contrary or additional terms and conditions in any form whatsoever shall apply to the Order, notwithstanding any oral or written statement made or provided by either Urban or Buyer, including, but not limited to, any statement, invoice, sales order, purchase order, or other document or record.
SECTION 3: PRICE.
The purchase price of the Goods is the price stated on the face of the Acknowledgment/Invoice (the “Purchase Price”). Unless the Acknowledgment/Invoice expressly so provides, the Purchase Price does not include the cost of packaging, insurance, customs duty, assembly, bank charges, or any sales, use, or other taxes relating to or imposed on the transaction contemplated by the Order. These costs and taxes shall be paid by Buyer.
SECTION 4: PAYMENT.
Buyer shall pay the Purchase Price in accordance with the payment terms stated in the Acknowledgment/Invoice. If no currency is referenced in the Acknowledgement/Invoice, payment shall be made in Canadian Dollars. If the Acknowledgment/Invoice does not include terms for the payment of the Purchase Price, payment shall be made in cash or by wire transfer to an account designated by Urban in the Acknowledgment/Invoice, within 14 days of the date of Urban’s invoice. Urban shall be entitled to issue its invoice for the Purchase Price upon shipment, or upon notice to Buyer that Urban is ready to ship, whichever is earlier. If the Goods are to be delivered outside the continental United States or Canada, or in other appropriate circumstances as requested by Urban in any quotation, Buyer shall establish an irrevocable letter of credit with an issuer and in a form and an amount all satisfactory to Urban, in its sole discretion.
SECTION 5: ACCEPTANCE AND INSPECTION.
If the Acknowledgment/Invoice does not include specific terms for their acceptance and inspection, all Goods that:
(a) according to the terms of the Acknowledgment/Invoice will not be installed by Urban or its authorized representative, shall be finally inspected and accepted by Buyer within 10 days after delivery; and,
(b) according to the terms of the Acknowledgment/Invoice will be installed by Urban or its authorized representative, shall be finally inspected and accepted by Buyer within 10 days after installation of the Goods has been completed, as such completion is determined by Urban’s delivery to Buyer of Urban’s notice of completion.
Buyer shall make all claims (including claims for shortages), excepting only those provided for under Section 10 contained herein, in writing within such 10-day period or such claims shall be deemed waived and the Goods will be deemed to have been accepted. Buyer may not revoke its acceptance of the Goods after such 10-day period. Buyer may reject the Goods during such 10-day period only for defects that substantially impair their value, and Buyer’s remedy for lesser defects shall be in accordance with the warranty of Section 10.
SECTION 6: TITLE AND RISK OF LOSS.
Urban shall deliver the Goods to Buyer at the location stated in the Acknowledgment/Invoice. Full risk of loss (including transportation delays and losses) and title shall pass to Buyer upon delivery as indicated on Acknowledgment/Invoice. If the Acknowledgment/Invoice does not state a location of delivery for the Goods, delivery shall be F.O.B. Urban’s plant in Cambridge, Ontario. Loss or destruction of the Goods or injury or damage to the Goods that occurs while the risk of such loss or damage is borne by Buyer does not relieve Buyer of its obligation to pay Urban for the Goods.
SECTION 7: SECURITY INTEREST.
Buyer hereby grants to Urban a purchase money security interest in the Goods and the proceeds of sale or other disposition of the Goods. The security interest shall terminate upon Buyer’s payment of all amounts due to Urban because of the Order. Buyer agrees not to sell, dispose of, attempt to convey, or remove the Goods from the place of the Good’s initial installation or delivery until Urban has been paid in full. Buyer agrees to execute, and/or agrees that Urban shall be entitled as attorney and agent for Urban to execute, all instruments or documents reasonably required by Urban to evidence, perfect, and/or continue Urban’s security interest. Provided the Goods are not fully paid on delivery, Buyer shall provide Urban on delivery with proof of insurance coverage showing Urban’s interest as unpaid vendor.
SECTION 8: CANCELLATION OR TERMINATION.
If Buyer cancels all or a portion of the Order, Buyer shall provide notice to Urban in writing. Buyer shall pay Urban a handling charge of 15% of that portion of the Purchase Price allocable to the canceled portion of the Order. In addition, Buyer shall pay Urban for material and labor costs incurred, and for engineering services supplied, by Urban with respect to the canceled items, which shall be charged to Buyer at Urban’s rates in effect at the time of cancellation. If Buyer wrongfully rejects or revokes acceptance, or otherwise breaches the Order, Urban may exercise any or all its legal or equitable rights or remedies, including the remedies provided in Part 7 of Article 2 of the Uniform Commercial Code (ORS 72.7010 et seq).
SECTION 9: DELIVERY AND DELAYS.
Urban shall use its best efforts to meet quoted delivery dates, which are estimated based on conditions known at the time of quotation. Notwithstanding the foregoing, in no circumstances shall Urban be liable for delays.
In the event of delay in performance due to an Event of Force Majeure (as defined below), the date of delivery or time for completion will be extended to reflect the length of time lost due to such delay.
SECTION 10: WARRANTY.
Urban warrants that the Goods shall be free from material defects in workmanship and/or material under normal use or service (such normal use or service being one (1) eight (8) hour shift per day, five (5) days per week) for a period of 12 months from date of initial delivery. This warranty requires that Goods have not been subjected to improper installation or storage, incorrect voltages, incompatible parts, misuse, neglect, accidental damage, damage during shipment, modifications, tampering, or abnormal working conditions (including, but not limited to an Event of Force Majeure, as defined below). The Goods must be operated and maintained in accordance with good industry practices and any specific recommendations of Urban.
This warranty is limited to non-perishable parts and major labor to replace these parts for the 12-month period. No product or component shall be deemed to be defective by reason of normal wear and tear or failure to resist chemical, electromechanical or electrical interferences. Perishable parts include, but may not be limited to, blades, cutters, knives, belts, hoses, fuses, bulbs, teflon or any other parts consumed during normal equipment operation. Major labor will include any labor to replace defective parts which is beyond the capability of the Buyer (as determined solely at the discretion of Urban).
Repairs or parts replaced under warranty shall be warranted for the remainder of the original warranty period only. Purchaser shall report any claimed defect in writing to Urban immediately upon discovery and in any event, within the warranty period.
This warranty applies only to products manufactured by Urban. With respect to other products sold by Urban, Urban’s only obligation shall be to assign to Buyer any warranty provided to Urban by the manufacturer or supplier of said product.
This warranty is only valid to the Buyer and is non-transferable or assignable to subsequent owners. Any intentional alteration or modification of the Goods from its original condition without prior written approval by Urban will void this warranty.
Intentional alteration of warranty documentation, model and/or serial number plates, or warning labels will void this warranty.
URBAN MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND WITH RESPECT TO THE GOODS OTHER THAN AS SPECIFIED HEREIN. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHINATABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED.
SECTION 11: LIMITATION OF LIABILITY AND INDEMNITY:
THE REPAIR OR REPLACEMENT OF GOODS OR SPARE OR REPLACEMENT PARTS BY URBAN SHALL CONSTITUTE URBAN’S SOLE OBLIGATION AND BUYER’S SOLE AND EXCLUSIVE REMEDY FOR ALL CLAIMS OF DEFECTS REGARDING THE GOODS. NOTWITHSTANDING THE FOREGOING, URBAN, AT ITS OPTION, MAY ELECT TO TERMINATE ALL ITS OBLIGATION AND LIABILITIES TO BUYER, INCLUDING THE OBLIGATION TO REPAIR OR REPLACE DEFECTIVE GOODS OR PARTS, BY REFUNDING TO BUYER THE PORTION OF THE PURCHASE PRICE PAID BY BUYER FOR THE DEFECTIVE GOODS OR PARTS.
URBAN SHALL NOT IN ANY EVENT, AND BUYER SHALL, BE LIABLE FOR ANY DAMAGES TO PERSONS OR PROPERTY, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES, ARISING OUT OF THE ORDER, OUT OF ANY BREACH OF ANY OF ITS OBLIGATIONS HEREUNDER OR OUT OF ANY DEFECT IN, OR FAILURE OR MALFUNCTION OF, OF THE GOODS, INCLUDING, BUT NOT LIMITED TO, CLAIMS BASED UPON LOSS OF USE, LOST PROFITS OR REVENUES, INTEREST, LOST GOODWILL, WORK STOPPAGE, IMPAIRMENT OF OTHER GOODS, ENVIRONMENTAL DAMAGE, LOSS BY REASON OF SHUTDOWN OR NON-OPERATION, OR INCREASED EXPENSES OF OPERATION, WHETHER OR NOT SUCH LOSS OR DAMAGE IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE. BUYER HEREBY AGREES TO DEFEND AND SAVE URBAN HARMLESS FROM ANY ALL CLAIMS ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE GOODS.
Notwithstanding any statutory limitation period, including but not limited to the Limitation of Actions Act, SNB 2009, c L-8.5, any action by Buyer arising out of the Order or related to the Goods, whether based on breach of contract, tort (including negligence or strict liability), or otherwise, must be commenced within one year from date it first accrues, or shall be forever barred.
SECTION 12: REASONABLENESS OF LIMITATIONS.
Buyer and Urban both agree that considering all current and foreseeable circumstances (including but not limited to the discrepancy between the Purchase Price and the size and extent in monetary terms of Buyer’s production volume), the damage limitation provisions of this Order are reasonable and provide Buyer with an adequate remedy in the event of loss or damage attributable to Urban. Buyer further acknowledges that Urban would not have entered into this Order if these damage limitation provisions were not agreed to, and that the damage limitation provisions are an essential part of the Order.
SECTION 13: GENERAL TERMS.
Forum and Governing Law. The Order shall be construed and enforced according to the laws of the Province of New Brunswick (including the Uniform Commercial Code, where applicable). The United Nations’ Convention on Contracts for the International Sale of Goods shall not govern the Order. Subject to the Section entitled “Dispute Resolution” below, any action or proceeding arising out of the Order shall be brought in the Judicial District of Fredericton, in any court having subject-matter jurisdiction.
Dispute Resolution. Any controversy, claim, or dispute between Urban and Buyer arising out of or related to the Order or any breach thereof, which cannot be settled amicably by them, shall be submitted for arbitration in accordance with the provisions contained herein and the rules of the Arbitration Act, RSNB 2014, c 100. Urban and Buyer will facilitate the arbitration by making available to one another and to the arbitrators for inspection and extraction all documents, books, records, and personnel under their control, if determined by any arbitrator to be relevant to the dispute, and by observing strictly the time periods established by the rules of the arbitrators for the submission of evidence and of briefs. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction over Urban and Buyer or their assets. The arbitrators shall determine all questions of fact and law relating to any controversy, claim, or dispute hereunder, including but not limited to whether any such controversy, claim, or dispute is subject to the arbitration provisions contained herein. All proceedings shall be held in Fredericton, New Brunswick.
Attorney Fees: In any action or proceeding arising out of the Order or the performance of the parties’ obligations hereunder, the prevailing party shall be entitled to its attorney fees and costs incurred at trial, on appeal, or in arbitration. The parties shall also be entitled to recover attorney fees and costs incurred in connection with any bankruptcy case or other insolvency proceeding commenced by or against either party, including all fees incurred in connection (a) with moving for relief from the automatic stay, to convert or dismiss the case or proceeding, or to appoint a trustee or examiner, or (b) proposing or opposing confirmation of a plan of reorganization or liquidation, in any case without regard to the identity of the prevailing party.
Force Majeure: A “Force Majeure” event includes, but is not limited to, a strike, lock-out, work stoppage or slow down or other labour dispute, popular uprising, sabotage, riot, rebellion, seizure, insurrection, act of terrorism, act of God, fire, storm, flood, war, accident, embargo, hostilities, explosion, perils of navigation, breakdown, involuntary closure or loss of use of, or damage to, or an unsafe condition involving, any facilities, machinery or equipment (for any reason whatsoever) used to manufacture, obtain, store, distribute or receive Goods, a reduced or inadequate supply of raw materials or services to Urban, an act of any government or other authority, or any other event beyond the reasonable control of Urban or Buyer (individually or collectively “Event”). However, lack of finances shall not be considered an event beyond the reasonable control of Urban or Buyer, and nothing herein shall relieve Buyer of its obligation to pay for Goods.
Neither Urban nor Buyer shall be liable, in damages or otherwise, for any non-performance, omission or delay (individually or collectively “Delay”) in performing its obligations under this Contract to the extent and for the time its Delay is directly or indirectly attributable to an Event. The party claiming Force Majeure shall notify the other party of the situation as soon as possible, shall communicate all reasonable details to the other party, and shall, as soon as possible, remedy the cause and consequences of the Event insofar as it is able to do so. However, terms of settlement of any strike, lock-out or other labour dispute (individually or collectively, “Dispute”) shall be at the discretion of the party claiming Force Majeure and such party shall not be bound to settle the Dispute merely to remedy the Event. Notwithstanding the foregoing, if an Event lasts longer than thirty (30) Days, the party who is not subject to the Event may terminate this Order upon written notice.
Authority: The persons executing the Acknowledgment/Invoice each warrant that he or she has authority to do so.
Binding Effect. The Order, when accepted, shall be binding upon and inure to the benefit of Buyer, Urban, and their respective successors and assigns.