FloNergia Terms and Conditions of Sale
These terms and conditions govern the sale of products ("Products") and the provision of services ("Services") by FloNergia Inc. and its divisions, subsidiaries and affiliates ("FloNergia"). These terms and conditions ("Agreement") take precedence over Buyer’s supplemental or conflicting terms and conditions to which notice of objection is hereby given. Acceptance by the Buyer is limited to and conditioned upon the Buyer’s assent to these terms and conditions. Neither FloNergia’s commencement of performance or delivery shall be deemed or constituted as acceptance of Buyer’s supplemental or conflicting terms and conditions. Buyer’s acceptance of the Products and/or Services from FloNergia shall be deemed to constitute acceptance of the terms and conditions contained herein. THESE TERMS AND CONDITIONS MAY ONLY BE WAIVED OR MODIFIED IN A WRITTEN AGREEMENT SIGNED BY AN AUTHORIZED REPRESENTATIVE OF FLONERGIA.
- Orders All orders placed by the Buyer are subject to acceptance by FloNergia. Orders may not be cancelled or rescheduled without FloNergia’s written consent. All orders must include delivery dates, quantities and complete description of Products being purchased. FloNergia may in its sole discretion allocate Product among its Customers.
- The prices of the Products are those specified on the front of FloNergia’s invoice. Pricing for undelivered Product may be increased in the event of any increase in FloNergia’s cost, change in market conditions or any other causes beyond FloNergia’s reasonable control. Price quotations, unless otherwise stated, shall automatically expire fifteen (15) calendar days from the date issued and may be cancelled or amended within that period upon notice to Buyer.
- Unless otherwise agreed to in writing by FloNergia, all prices quoted Ex Works at FloNergia’s warehouse and are exclusive of transportation and shipping insurance costs, and all taxes including, but not limited to, federal and provincial sales, excise, goods and services taxes and any other taxes. Buyer agrees to pay these taxes as required by the jurisdiction of Buyer’s place of business and any jurisdiction to which Products are to be directly shipped hereunder, or unless the sale is otherwise exempt from these taxes. Buyer agrees to indemnify and hold FloNergia harmless for any liability for tax in connection with the sale, as well as the collection or withholding thereof, including penalties and interest thereon. When applicable, transportation and taxes shall appear as separate items on FloNergia’s invoice.
- Full payment using VISA, MasterCard, American Express, C.O.D., cash, electronic wire transfer or certified company cheque is due promptly upon placing an order with FloNergia. FloNergia may invoice each shipment separately and each shipment shall be considered a separate and individual contract. Buyer agrees to pay such invoice pursuant to its terms without the benefit of setoff or deduction.
- All late payments shall be charged interest computed on a daily basis from the due date until paid in full. A late charge of one and one-half percent (1 1/2%) per month or the maximum rate permitted by applicable law, whichever is less, will be imposed on all past due accounts. Buyer shall be liable for costs of collection, including reasonable attorneys’ fees and court costs, in any action to collect past due amounts.
- Transportation charges, including transportation insurance, from FloNergia’s facility to Buyer’s facility shall be paid by the Buyer to FloNergia, in addition to the purchase price of the Product, unless otherwise agreed to in writing by FloNergia. FloNergia will select the carrier in the absence of specific instructions by the Buyer.
- FloNergia reserves the right to establish and/or change credit and payment terms extended to the Buyer when, in FloNergia’s sole opinion, Buyer’s financial condition or previous payment record warrants such action. Further, on delinquent accounts, FloNergia shall not be obligated to continue performance under any agreement with Buyer.
- If FloNergia believes in good faith that the Buyer's ability to make payments may be impaired or if Buyer shall fail to pay any invoice when due, FloNergia may suspend delivery of any order or any remaining balance thereof until such payment is made or cancel any order or any remaining balance thereof, and Buyer shall remain liable to pay for any Products already shipped.
- FloNergia retains a purchase money security interest in the Products delivered to the Buyer, and in their accessories, replacements, accessions, proceeds and Products, including accounts receivable (collectively, the "Collateral") to secure payment of all amounts due under this Agreement. Buyer’s failure to pay all amounts hereunder in full when and as due shall constitute a default hereof and shall give FloNergia all rights of a secured party. If the Buyer fails to pay any amount when due, FloNergia shall have the right to repossess and remove all or any part of the Collateral from the Buyer. Any repossession or removal shall be without prejudice to any other remedy of FloNergia hereunder, at law or in equity. Buyer agrees, from time to time, to take any act and execute and deliver any document (including, without limitation, financing statements) reasonably requested by FloNergia to transfer, create, perfect, preserve, protect and enforce this security interest.
- Any payment received from the Buyer may be applied by FloNergia against any obligation owing from Buyer to FloNergia, regardless of any statement appearing on or referring to such payment, without discharging the Buyer's liability for any additional amounts owing from the Buyer to FloNergia, and the acceptance by FloNergia of such payment shall not constitute a waiver of FloNergia's right to pursue the collection of any remaining balance.
- Delivery and Title All deliveries will be made Ex Works FloNergia’s warehouse facility. Subject to FloNergia's right of stoppage in transit, delivery of the Products to the carrier shall constitute delivery to Buyer and title and risk of loss shall thereupon pass to the Buyer. Selection of the carrier and delivery route shall be made by Buyer unless prearranged with FloNergia. Buyer acknowledges that delivery dates provided by FloNergia are estimates only and FloNergia shall not be liable for delays in delivery or for failure to perform due to causes beyond the reasonable control of FloNergia nor shall the carrier be deemed an agent of FloNergia. In the event of delay caused by such event, the date of delivery shall be extended for a period equal to the time lost as a consequence of the delay in delivery without subjecting FloNergia to any liability or penalty. If the Products perished while in the custody of the carrier, the FloNergia shall be deemed to have performed its obligations in full. Delivery of a quantity, which varies from the quantity specified, shall not relieve the Buyer of the obligation to accept delivery and pay for the Products delivered. Delay in delivery of one installment shall not entitle Buyer to cancel other installments.
- Limited Warranty and Limitation of Liability
- If the product fails during the first year of purchase, FloNergia will replace it, as long as it has been used in a reasonable manner. If the product has been used and properly maintained for the applications for which FloNergia has specified, it will be deemed to have been used reasonably. Similarly, if the product has been used and properly maintained in accordance with operating conditions for which it has been rated by FloNergia, it will be deemed to have been used reasonably. All other risks are borne by the purchaser, including but not limited to loss and/or damage associated with non-performance of the products.
- FloNergia’s exclusive obligations with respect to a non-conforming Product shall be, at FloNergia’s option, to replace the Product, if it is determined to be defective. Notwithstanding anything herein to the contrary, the liability of FloNergia under this Section 6(b) for all claims shall not exceed the sum of Buyer’s payments for the Products or Services, which are the subject of the dispute, and the foregoing is Buyer’s sole and exclusive remedy for all claims under this Section 6(b). THE FOREGOING WARRANTIES ARE THE SOLE WARRANTIES, EXPRESS OR IMPLIED, GIVEN BY FLONERGIA IN CONNECTION WITH THE PRODUCTS, AND FLONERGIA DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS AND WARRANTIES AGAINST LATENT DEFECTS.
- Replacement Products shall be warranted as set forth in Section 6(a) above. Any Products repaired or serviced by FloNergia shall be warranted as provided in this Section 6(b) for the remainder of the warranty period.
- No warranty shall apply to any Product that has been subject to misuse, improper testing, assembly, mishandling, or which has been operated contrary to current instructions relating to installation, maintenance or operation, or contrary to industry standards.
- FloNergia disclaims, and shall have no liability for any trademark, trade dress, trade secret, copyright, design or patent infringement, or any other intellectual property right, which may occur, as a result of the sale of Products to Buyer. The only remedy or recourse for trademark, trade dress, trade secret, copyright, design or patent infringement, or any other intellectual property right, shall be against the manufacturer of the Products, which is explicitly subject to the limited warranty of the Product. There shall be no remedy or recourse against FloNergia to the extent the infringement arises from or is otherwise based upon (i) FloNergia’s compliance with the particular requirements of Buyer that differ from FloNergia's standard specifications for the Product; (ii) modifications or alterations of the product other than by FloNergia; or (iii) a combination of the Product with other items not furnished or manufactured by FloNergia.
- BUYER SHALL NOT IN ANY EVENT BE ENTITLED TO, AND FLONERGIA SHALL NOT BE LIABLE FOR, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, WITHOUT LIMITATION, BUSINESS INTERRUPTION COSTS, REMOVAL AND/OR REINSTALLATION COSTS, REPROCUREMENT COSTS, LOSS OF PROFIT OR REVENUE, LOSS OF DATA, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEAD, INJURY TO REPUTATION OR LOSS OF CUSTOMERS, EVEN IF FLONERGIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BUYER'S RECOVERY FROM FLONERGIA FOR ANY CLAIM SHALL NOT EXCEED BUYER'S PURCHASE PRICE FOR THE PRODUCT GIVING RISE TO SUCH CLAIM IRRESPECTIVE OF THE NATURE OF THE CLAIM, WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE, FLONERGIA SHALL NOT BE LIABLE FOR AND BUYER SHALL INDEMNIFY, DEFEND AND HOLD FLONERGIA HARMLESS FROM ANY CLAIMS BASED ON FLONERGIA'S COMPLIANCE WITH BUYER'S DESIGNS, SPECIFICATIONS OR INSTRUCTIONS, OR MODIFICATION OF ANY PRODUCTS BY PARTIES OTHER THAN FloNergia, OR USE IN COMBINATION WITH OTHER PRODUCTS. IF, FOR ANY REASON, THE FOREGOING LIMITATIONS ARE FOUND BY AN ARBITRATION PANEL OR COURT OF COMPETENT JURISDICTION TO BE INVALID OR INAPPLICABLE UNDER ANY APPLICABLE STATE OR PROVINCIAL LAW, BUYER AGREES THAT FLONERGIA’S TOTAL LIABILITY FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION OF ANY KIND OR NATURE SHALL BE LIMITED TO ACTUAL DAMAGES WITHOUT REGARD TO ANY PUNITIVE OR EXEMPLARY DAMAGES PROVIDED BY ANY SUCH APPLICABLE LAW.
- Buyer acknowledges that this Agreement was entered into at arm’s length and that it was not fraudulently induced to enter into this Agreement, in whole or any part, and Buyer explicitly disclaims and waives any claim with respect thereto.
- Intellectual Property If any Product includes intellectual property, such intellectual property is provided by FloNergia to the Buyer subject to the copyright and user license, if any, for such Products, the terms and conditions of which are set forth in the license agreement accompanying such intellectual property. Nothing herein shall be construed to grant any rights or license to use any intellectual property in any manner or for any purpose not expressly permitted by such license agreement. Buyer acknowledges and understands that FloNergia is not the manufacturer of any Products ordered or to be supplied to Buyer and is not liable to Buyer or any third party for any copyright, design or patent issue, right or claim that may arise in relation to any Product.
- Export Control/Use of Products Buyer certifies that it will be the recipient of Products to be delivered by FloNergia. Buyer acknowledges that the Products may be subject to the export and/or import control laws and regulations of various countries. Buyer agrees to comply with all export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required and acknowledges that it shall not directly or indirectly export any Products to any country to which such export or transmission is restricted or prohibited. Products sold by FloNergia are not designed, intended or authorized for use in life support, life sustaining, nuclear, or other applications in which the failure of such Products could reasonably be expected to result in personal injury, loss of life or catastrophic property damage. If Buyer uses or sells the Products for use in any such applications: (1) Buyer acknowledges that such use or sale is at the Buyer's sole risk; (2) Buyer agrees that FloNergia is not liable, in whole or in part, for any claim or damage arising from such use; and (3) Buyer agrees to indemnify, defend and hold FloNergia and the manufacturer of the Products harmless from and against any and all claims, damages, losses, costs, expenses and liabilities arising out of or in connection with such use or sale.
- Technical Assistance or Advice Any technical assistance or advice offered by FloNergia in regard to the use of any Product or provided in connection with Buyer’s purchases is given free of charge and only as an accommodation to the Buyer. FloNergia shall have no obligation to provide any technical assistance or advice to the Buyer and if any such assistance or advice is provided, such fact will not obligate FloNergia to provide any further or additional assistance or advice. FloNergia shall not be held liable for the content or the Buyer’s use of such technical assistance or advice, nor shall any statement made by any of FloNergia’s representatives in connection with the Products or Services constitute a representation or warranty, express or implied.
- Limitation Period Subject to any of the limitations expressed in the applicable manufacturer’s warranty, no action by the Buyer may be brought at any time for any reason against FloNergia more than twelve (12) months after the facts occurred upon which the cause of action arose.
- Dispute Resolution The validity, interpretation and performance of this Agreement for all Products delivered to or in Canada, and all Services performed in Canada, shall be governed by, and construed in accordance with the laws of Ontario, without giving effect to conflict of laws principles. Both parties agree that any action, demand, claim or counterclaim relating to the terms and provisions of this Agreement, or to any claimed breach, shall be commenced in a court of competent jurisdiction in the judicial district of Burlington, Ontario, and both parties expressly acknowledge that personal jurisdiction and venue shall lie exclusively and is properly in Burlington, Ontario. With respect to all disputes, the provisions of the United Nations Convention on Contracts for the International Sale of Goods 1980 (as amended, replaced or codified from time to time) shall not apply.
- Force Majeure FloNergia shall not be liable for its inability to secure sufficient quantities of any Product or failure to deliver due to causes beyond FloNergia’s reasonable control including, but not limited to, acts of God, natural or artificial disaster, riot, war, strike, delay by carrier, shortage of Product, acts or omissions of other parties, acts or omissions of civil or military authority, Government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, quarantine restrictions, acts of terrorism, delays in transportation or inability to obtain labor, materials or Products through its regular sources, which shall be considered as an event of force majeure excusing FloNergia from performance and barring remedies for non-performance. In an event of force majeure condition, the FloNergia’s time for performance shall be extended for a period equal to the time lost as a consequence of the force majeure condition without subjecting FloNergia to any liability or penalty. FloNergia may, at its option, cancel the remaining performance, without any liability or penalty, by giving notice of such cancellation to Buyer.
- Non-Waiver No course of dealing or failure of either party to strictly enforce any term, right or condition of this Agreement shall be construed as a waiver of that term, right or condition nor shall FloNergia’s acceptance of a purchase order be deemed as an acceptance of any terms and conditions therein.
- Entire Agreement This Agreement (together with any agreements, policies or terms incorporated by reference) shall constitute the complete, final and exclusive statement of the terms of the Agreement between the parties with respect to the subject matter of this Agreement and the transactions between the parties and shall not be modified or rescinded, except by a writing signed by FloNergia and the Buyer. The provisions of this Agreement supersede all prior oral and written quotations, communications, agreements, and understandings of the parties with respect to the subject matter of this Agreement. Products furnished and services rendered by FloNergia are done so only in accordance with these terms and conditions. If any provisions of this Agreement are found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these terms and conditions, which shall remain in full force and effect.
- General As used herein, terms appearing in the singular shall include the plural and terms appearing in the plural shall include the singular. No rights, duties, agreements or obligations hereunder may be assigned or transferred by the Buyer, by operation of law, merger or otherwise, without the prior written consent of FloNergia. Any attempted or purported assignment shall be void. FloNergia's obligations under these terms and conditions may be performed by divisions, subsidiaries or affiliates of FloNergia. The obligations, rights, terms and conditions hereof shall be binding on the parties hereto and their respective successors and assigns. The waiver of any provision hereof or of any breach or default hereunder shall not be deemed a waiver of any other provision hereof or breach or default hereunder. Any provision hereof which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof in that jurisdiction or affecting the validity or enforceability of such provision in any other jurisdiction.