1.Definitions. In these terms and conditions, the following terms shall have the following meanings:
a.“Agreement” shall include these terms and conditions and the terms of any invoice or other agreement to which they are attached;
b.“Buyer” means the buyer of equipment and/or services pursuant to these terms and conditions;
c.“Goods” means any goods ordered from or to be supplied by Highside pursuant to this Agreement; and
d.“Highside” means Highside Carbide Ltd.
2.No Other Documents. These terms and conditions may not be altered, supplemented or amended by Buyer’s use of a purchase order or similar document. Any attempt by Buyer to alter, supplement or amend these terms and conditions or to enter into an order from Highside that is subject to additional or altered terms and conditions will be null and void, unless otherwise agreed to in writing by both Buyer and Highside. Highside may change these terms and conditions as they relate to future sales or deliveries at any time without prior notice.
3.Independent Contractor. It is agreed and understood that each party to this Agreement is an independent contractor and is not a servant, agent, or employee of the other.
4.Invoicing and Payment. Highside shall submit one or more invoices following delivery of Goods. Highside may invoice parts of an order separately. Buyer shall, within 30 days of the date of the invoice, pay all invoiced amounts. Any past due balances shall be charged interest at a rate of 1.5% per month (18% per year). If Buyer rejects delivery of any of the Goods or fails to make timely payment as provided in the invoice, or repudiates the invoice with respect to any purchase order accepted by Highside, then with respect to any order for Goods not accepted by Buyer at any such time, Highside may, without prejudice to other remedies which Highside may have by reason thereof, withhold the delivery of such Goods, stop delivery of such Goods in possession of a carrier or other bailee and recover damages for non-acceptance or repudiation, including all handling, warehouse, re-stocking and other related costs associated with Buyer’s failure to accept such delivery or repudiation of any such purchase order.
5.Taxes. Unless otherwise stated, all prices quoted are exclusive of goods and services tax, sales tax and all other taxes, the Buyer is responsible for all taxes associated with or applicable to the order. A separate charge for taxes will be shown on Highside’s invoice.
6.Delivery. All shipments of Goods are FOB Highside’s facility. All scheduled delivery dates are estimates. Highside will use commercially reasonable efforts to ship by the dates requested, but will not be liable for any delay or failure in the estimated shipment or delivery of the Goods or for any damages suffered by reason thereof.
7.Shipping Charges. Highside reserves the right to select the means of shipment, point of shipment and routing. Separate charges for shipping and handling will be shown on Highside’s invoice(s).
8.Title and Risk of Loss. Title to and ownership of all goods shall remain with Highside at the Buyer’s risk until all amounts due to Highside from the Buyer for the goods are made, at which time absolute title shall pass to the Buyer.
9.Indemnity. The Buyer shall:
a.be liable to Highside, its directors, officers, employees, servants, and agents for all losses, costs, expenses (including legal and other professional fees and disbursements), and damages whatsoever which Highside may suffer, sustain, pay, or incur; and
b.indemnify Highside, its directors, officers, employees, servants, and agents against all actions, proceedings, claims, and demands whatsoever which may be brought or made against Highside by any third party,
by reason of or arising out of, directly or indirectly, any act or omission of the Buyer relating to Highside’s permitted entry onto premises occupied or controlled by the Buyer or premises to which Buyer directs delivery or service of any Goods, or the failure of the Buyer to observe and comply with all laws, regulations, rules, ordinances, standards, codes, or specifications of any authority, whether negligent or otherwise. All these obligations will survive the termination of this Agreement.
10.Cancellation/Failure to Accept Delivery. Buyer agrees that an order shall in no event be cancelled except with the prior written consent of Highside, and then only when Highside is fully reimbursed for work performed and materials used plus a restocking charge equal to the value of the cost of raw materials, handling, and labour costs, and, for non-standard special-order Goods, the greater of (i) 100% of the sale price of such Goods and (ii) the actual and consequential damages incurred by Highside, including without limitation Highside’s anticipated profit and expenses already incurred by Highside.
11.Shortages. Each shipment shall be presumed to be complete and in accordance with the bill of lading and packing list unless shortages are reported to Highside within ten days of receipt of Goods.
12.Limited Warranty. Highside warrants that Goods furnished under this Agreement will be free from material defects in workmanship or material for a period of six months from the date of delivery. Provided the Goods have been stored and handled in accordance with industry practice and Highside’s recommendations, Highside shall, upon written notice provided within one month of Buyer’s awareness of a failure to comply with this warranty, correct such failure by, at its option, repairing the failure or shipping a replacement product (FOB Highside’s facility). Goods repaired or replaced pursuant to this warranty shall be warranted only for the remainder of the original warranty term. The limited warranty provided herein shall not apply to issues arising out of work performed by third parties upon Goods without Highside’s express written consent, and Highside shall not be liable or responsible for any charges for such work performed by third parties. Correction of non-conformities as provided herein shall constitute the entire liability of Highside with respect to the Goods whether in contract, warranty, tort, or otherwise, and Highside disclaims all other warranties and conditions, express or implied, in respect of the Goods including, without limitation, warranties or conditions of merchantability, fitness for a particular purpose or lack of manufacturing defect.
13.Safety, Health, and Security Regulations. In its interactions with Highside, including any and all entry onto Highside’s premises or when permitting Highside’s directors, officers, employees, servants, and agents entry onto Buyer’s premises, the Buyer shall comply with the safety, health, and security rules, regulations, and policies of Highside as set out in all published policies of Highside or that may be imposed by Highside, and with the safety and health provisions of all laws, regulations, by-laws, or orders of any government or governmental body having jurisdiction. The Buyer shall be responsible for the compliance with all safety, health, and security rules and the safety and health provisions as aforesaid for all of its employees, servants, and agents, and its subcontractors’ employees, servants, and agents.
14.Limited Liability. HIGHSIDE DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH IN THIS AGREEMENT. HIGHSIDE WILL NOT BE LIABLE FOR DIRECT OR CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. THE FOREGOING LIMITATIONS APPLY REGARDLESS OF THE CAUSES OR CIRCUMSTANCES GIVING RISE TO SUCH LOSS, DAMAGE OR LIABILITY, EVEN IF SUCH LOSS, OR DAMAGE OR LIABILITY IS BASED ON NEGLIGENCE OR OTHER TORTS OR BREACH OF CONTRACT INCLUDING, WITHOUT LIMITATION, FUNDAMENTAL BREACH OR BREACH OF A FUNDAMENTAL TERM.
15.Force Majeure. Highside shall not be liable for any loss or damage resulting from delay in the prosecution or completion of work caused by labour disputes, floods, fires, riots, thefts, accidents, inability to obtain labour, materials, components, or fuel, acts of government, or any other cause which is beyond the reasonable control of Highside. Highside agrees to notify the Buyer if any of these events occur. Highside shall have the right in the event of the happening of any of the above events to cancel this Agreement or any part thereof without any resulting liability.
16.Non-Confidentiality. Unless Highside is otherwise advised in writing by the Buyer, no information disclosed to Highside in the performance of or in connection with this Agreement shall be deemed to be confidential or proprietary and any such information shall be free from restrictions.
17.Non-Waiver. No waiver of any provision of this Agreement shall be of any force unless such waiver is in writing, is expressly stated to be a waiver of a specified provision of this Agreement, and is signed by the party to be bound thereby. Either party's waiver of any breach of, or failure to enforce, any of the covenants, conditions, or other provisions of this Agreement, at any time, shall not in any way affect or limit that party's right thereafter to enforce or compel strict compliance with every covenant, condition, or other provision hereof.
18.Time of the Essence. Time is of the essence of this Agreement.
19.Severability. Should any section, subsection, term, or condition of this Agreement be or become illegal or not enforceable, such section, subsection, term, or condition shall be considered separate and severable from this Agreement.
20.Amendments. This Agreement or any part thereof may not be modified, supplemented, or amended except as otherwise herein provided or by mutual agreement expressed in writing and duly executed by the parties to this Agreement.
21.Governing Law and Jurisdiction. This Agreement and all amendments thereto shall be governed by and construed in accordance with the laws in force in Alberta, and the parties hereto irrevocably agree to the non-exclusive jurisdiction of the courts of the Province of Alberta for any matter or disputes arising relating to the sale, purchase, and delivery of Goods.
22.Successors and Assigns. This Agreement shall be binding upon and enure to the benefit of each of the parties hereto and their respective successors and permitted assigns.
23.Prior Agreements. This Agreement supersedes and replaces any and all prior representations, proposals, negotiations, letters of understanding, agreements, contracts, or amendments thereto or any other communications, verbal or written between the parties hereto relating to the subject matter of this Agreement.
24.Entire Agreement. This Agreement sets forth the entire agreement between the parties relating to the matters herein.