THE GASKET FACTORY Terms and Conditions of Sale 1. Application of Terms and Conditions of Sale These Terms and Conditions of Sale are made between THE GASKET FACTORY, any of its subsidiaries, affiliates, divisions, successors and assigns (collectively, "THE GASKET FACTORY") and Buyer and, unless otherwise agreed to in writing by THE GASKET FACTORY, these Terms and Conditions of Sale shall apply to all transactions between THE GASKET FACTORY and Buyer, including but not limited to, quotes, purchase orders, order acknowledgements, invoices or any other document used to place an order (“Order”), and shall exclude, and prevail over, any terms and conditions of purchase of Buyer regardless of the form of such terms and conditions or time at which such terms and conditions are presented to THE GASKET FACTORY. THE GASKET FACTORY and Buyer specifically agree that THE GASKET FACTORY’s acceptance of any Order from Buyer is strictly conditioned upon Buyer’s acceptance of these Terms and Conditions of Sale and that THE GASKET FACTORY shall not be deemed to accept any of Buyer’s terms and conditions including if THE GASKET FACTORY should fail to object to them in any communication received from Buyer or should THE GASKET FACTORY subsequently execute any of Buyer’s field tickets, forms, receipts, invoices, or terms of services. For greater certainty, any Order or other document sent by Buyer to THE GASKET FACTORY shall only be used to define the description, quantity, price and destination of goods to be sold, supplied or delivered by THE GASKET FACTORY to Buyer and shall not constitute part of the agreement between THE GASKET FACTORY and Buyer. Buyer shall be conclusively deemed to have accepted these Terms and Conditions of Sale upon any of the following by Buyer, its agents, or representatives: (i) written or electronic acknowledgement or acceptance hereof, (ii) transmission to THE GASKET FACTORY, its agents, or representatives of any Order for THE GASKET FACTORY’s goods, or (iii) acceptance of or payment for any goods covered hereby
2. Offers All quotes, proposals, or offers to sell provided by THE GASKET FACTORY to Buyer (“Offers”) are subject to modification or withdrawal without notice unless otherwise stated in writing by THE GASKET FACTORY. Any expiration date, time-framed validity, or similar statements included in any Offers are made in good faith for the convenience of Buyers and do not negate or mitigate THE GASKET FACTORY’s right to modify or withdraw Offers without notice. 3. Acceptance, Cancellation, Changes 3.1 Acceptance: All Orders are subject to acceptance in writing by THE GASKET FACTORY, which acceptance is contingent on adequate supply and, if applicable, THE GASKET FACTORY’s credit approval of Buyer and THE GASKET FACTORY may accept or reject any Order at THE GASKET FACTORY’s sole discretion. THE GASKET FACTORY's interpretation of a verbal Order shall be final and binding in the absence of a written confirmation from Buyer. 3.2 Buyer may not cancel, change or modify an Order without the written consent of THE GASKET FACTORY. THE GASKET FACTORY may cancel any unfilled Order immediately and without notice to Buyer in the event that Buyer becomes insolvent, is adjudicated bankrupt, petitions for or consents to any relief under any bankruptcy reorganization statutes, fails to pay delinquent balances due to THE GASKET FACTORY, or, in the sole judgment of THE GASKET FACTORY, is unable to timely meet its financial obligations in the normal course of business. 3.3 Changes: Any changes to an Order requested by Buyer may affect or delay the delivery and the Price and must be agreed to by THE GASKET FACTORY and the Buyer and signed by THE GASKET FACTORY. Any modifications to an Order requested by Buyer is subject to THE GASKET FACTORY’s written acceptance and, when applicable, Buyer’s written acceptance of any additional costs required to effect the modification including, without limitation, labor and materials, tooling and fixtures, shipping, and/or administration and engineering costs. This provision applies to modifications including, without limitation, quantities, delivery schedules, specifications, documentation, tooling, packaging, labeling, shipping and billing addresses, freight carriers, and any other element of Order requiring any sort of action on the part of THE GASKET FACTORY, its suppliers, or agents. 4. Price, Taxes and Payment 4.1 Price: The purchase price ("Price") is subject to change unless otherwise noted in writing by THE GASKET FACTORY and Buyer shall be invoiced at the Price in effect at the time of shipment. Unless otherwise specified by THE GASKET FACTORY in writing, the Price is to be paid in Canadian dollars. All taxes, transportation costs, duties and other charges are in addition to the Prices. The Price is payable without offset, back charge, retention, holdback or withholding of any kind. All Offers are subject to change without notice and prior to shipment. 4.2 Taxes: The Price is subject to all applicable customs duties, import duties, excise taxes, value added taxes (including HST or GST, as applicable), sales taxes and any other taxes, charges or levies levied by any governmental authority ("Taxes"). Such Taxes shall be added to the Price but shown separately on any invoice issued by THE GASKET FACTORY; however, Buyer is responsible for payment of all Taxes, and THE GASKET FACTORY's failure to charge or collect any Taxes shall not relieve Buyer of its obligation for payment of Taxes. 4.3 Payment: All invoices are due thirty (30) days after the date of THE GASKET FACTORY's invoice, with an interest charge of 1.5% per month (18% per annum) applying on past due invoices. Buyer agrees to pay and shall indemnify and hold harmless THE GASKET FACTORY in respect of such interest together with all of the costs, losses, charges, expenses and liabilities of THE GASKET FACTORY related or incidental to its collection efforts or the enforcement of any of its rights in connection with such default (including legal fees). If Buyer defaults on any payment when due or refuses to accept delivery or becomes insolvent, THE GASKET FACTORY may, at its option, without prejudice to other lawful remedies, defer deliveries or cancel the remainder of any Order. If Buyer’s financial condition is or becomes unsatisfactory to THE GASKET FACTORY, THE GASKET FACTORY reserves the right to cancel or delay the Order or shipment at any time prior to delivery without further obligation or liability on THE GASKET FACTORY’s part. Any goods held for Buyer shall be at the risk and expense of Buyer. Each shipment is a separate and independent transaction and payment must be made by Buyer accordingly. Payments are considered received on the day they are received by THE GASKET FACTORY. THE GASKET FACTORY may change payment terms upon reasonable notice to Buyer, including requiring payment prior to shipment. 4.4 Set-Off: THE GASKET FACTORY may withhold any sum due to Buyer as a set-off against Buyer's indebtedness to THE GASKET FACTORY either under the Agreement or under any other agreement between the parties. Buyer is not entitled to set-off any amounts due to THE GASKET FACTORY by any amount due by THE GASKET FACTORY to Buyer either under the Agreement or under any other agreement between the parties.
Export All licenses or other required governmental approvals shall be obtained by Buyer at its sole cost and expense. Buyer acknowledges and warrants that, as applicable, it shall comply with all Canadian export legislation including the Export and Import Act and its related regulations, Control of Dangerous Goods laws, United States legislation including Export Administration Regulations, International Traffic in Arms Regulations (ITAR), export laws and regulations of the European Union (EU) and/or any of its member states. Buyer warrants that it shall not export, re-export, resell, transfer, or disclose, directly or indirectly, any goods or technical data, or the direct product of any goods or technical data, to any proscribed person, entity, or country, or foreign national thereof, unless properly authorized by the applicable or relevant government or regulatory body. Buyer shall hold THE GASKET FACTORY harmless from any liability arising from Buyer’s failure to comply with such laws, regulations and orders, or the provisions of this section and indemnify THE GASKET FACTORY for any damages resulting to THE GASKET FACTORY from a breach of this subparagraph by Buyer. 16. Default In addition to any other rights or remedies available to THE GASKET FACTORY under these Terms and Conditions or under any applicable law, if Buyer is in default of these Terms and Conditions of Sale, THE GASKET FACTORY may, at its option, cancel any unexecuted portion of any Order to which these Terms and Conditions of Sale apply and/or exercise any right or remedy which may be available to it at law. Buyer will be in default under these Terms and Conditions of Sale if: (a) the Buyer fails to perform any covenant, term or condition contained herein or breaches any representation or warranty given by Buyer to THE GASKET FACTORY or (b) Buyer fails to give a required notice to THE GASKET FACTORY. 17. Governing Law These Terms and Conditions of Sale are governed by the laws of the province of Nova Scotia and the federal laws of Canada applicable therein without regard to conflict of law provisions and Buyer hereby irrevocably attorns to the jurisdiction of the courts of such province. All actions, regardless of form, arising out of or related to a transaction governed by these Terms and Conditions of Sale must be brought against THE GASKET FACTORY within the applicable statutory period, but in no event more than one (1) year after the date of the relevant invoice. 18. General Provisions 18.1 No Rule of Strict Construction: The language used herein shall be deemed to be the language chosen by the parties hereto to express their mutual intent and shall be construed without regard to any presumption or rule requiring construction against the party causing such instrument or any portion thereof to be drafted, or in favor of the party receiving a particular benefit under the agreement. No rule of strict construction will be applied against any person. 18.2 Non-Waiver: The failure of THE GASKET FACTORY to insist upon the strict performance of any of these Terms and Conditions of Sale will not be deemed to be a waiver of any of the rights or remedies of THE GASKET FACTORY, nor of its right to insist upon strict performance of such term or of any other term in the future. No waiver of any of these Terms and Conditions of Sale will be valid unless in writing signed by THE GASKET FACTORY. 18.3 Severability: If any of the provisions contained in these Terms and Conditions of Sale are held to be invalid, illegal or unenforceable by reason of any determination made by a court of competent jurisdiction or any governmental authority having jurisdiction in the circumstances, then such provision or part of such provision shall be severed from this contract to the extent of such invalidity or illegality and the validity, legality or enforceability of the remaining provisions of the Agreement shall not in way be affected or impaired thereby. 18.4 Assignment: Buyer may not assign or transfer or otherwise delegate any performance under, these Terms and Conditions of Sale or an Order in whole or in part without the prior written approval of THE GASKET FACTORY which may be withheld in THE GASKET FACTORY’s sole discretion. No assignment nor the granting by THE GASKET FACTORY of any approval or consent to assign shall relieve the Buyer of any of its liabilities or obligations under these Terms and Conditions of Sale. 18.5 Successors and Assigns: These terms and Conditions of Sale shall enure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. 18.6 Independent Contractors: The relationship of the Buyer to THE GASKET FACTORY will be that of an independent contractor and not an employee, partner or agent, and nothing contained herein shall be regarded or construed as creating a partnership, joint venture, agency or employer/employee relationship. 18.7 Further Action: The Buyer shall, at the reasonable request of THE GASKET FACTORY, execute and deliver any further documents and do all acts and things as reasonably required to carry out the intent of these Terms and Conditions of Sale. 18.8 United Nations Convention on Contracts: The parties expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods as well as any applicable sale of goods acts. 18.9 Subject to Section 1 of these Terms and Conditions of Sale, these Terms and Conditions of Sale constitute the final written expression of all of the agreements between the parties with respect to the subject matter herein, and supersedes all understandings and negotiations concerning the matters specified herein. 18.10 Language: The parties have requested and agreed that these Terms and Conditions of Sale be drafted in the English language. In the event any applicable contract or agreement is executed in more than one language version, the English language version shall control.
