Terms and Conditions



Terms and Conditions of Sale.

These Terms and Conditions apply to every sale of Products by Black Diamond Engineered Products Inc. (Seller) to any person purchasing Products (Buyer) from Seller.

1. Definitions. The following defined terms have the following meanings herein:

Applicable Laws means all applicable statutes, regulations, codes, orders, and other legally binding requirements of governmental authorities in place from time to time;

Improvements means any improvements, additions, customizations, or other changes made by Seller to a Product originally manufactured by third party original manufacturer, whether such Improvements are initiated and offered by Seller or made at the request of Buyer;

Products means the parts, components, devices or materials identified in the Sales Order;

Quotation means Seller's standard form written Quotation which provides an estimate of the cost of the Products contemplated for sale, and in the absence of the written document includes the amount quoted by Seller to Buyer by telephone or email with respect to a specific quantity of a Product; and

Sales Order means Seller's standard form Sales Order/Confirmation provided by Seller to Buyer, or any email or other electronic sales order confirmation between Seller and Buyer containing comparable details to those otherwise set out in the standard form.

2. Terms and Conditions Apply and Prevail. By placing an order for Products pursuant to a Sales Order, Buyer acknowledges and agrees that these Terms and Conditions apply and prevail over any terms or conditions of Buyer or any other written requests, variations, or requirements of Buyer. To the extent of any inconsistency or conflict with any Buyer imposed or proposed terms and conditions set out in a purchaser order or otherwise, or the terms of any Quotation or Sales Order, these Terms and Conditions prevail. The Sales Order and these Terms and Conditions constitute the entire agreement and there are no understandings, agreements, or representations, express or implied, other than what is contained in these documents. These Terms and Conditions may only be modified in writing signed by authorized representatives of Seller and Buyer.

3. Confirmations. All estimates and orders are subject to confirmation by Seller. Seller may provide estimates by issuing a Quotation to Buyer. Seller will confirm orders by issuing a completed Sales Order to Buyer. Orders may not be cancelled, rescheduled, changed or substituted without Seller's consent in writing, in which case a new Sales Order will be issued to Buyer. Buyer requests for cancellation of an order must be in writing, and shall be determined at the sole discretion of Seller, and may be subject to a re-stocking fee and any reasonable costs incurred by Seller (which includes administrative costs). Seller agrees to use commercially reasonable efforts to accommodate any order cancellation request. Notwithstanding anything else contained herein, Products identified as "Non-Cancellable-Non-Returnable" or "NCNR" or similar language in the Sales Order shall not be cancelled or returned in any circumstances.

4. Pricing. Unless Seller otherwise specifies in writing, the Quotation price will remain in effect until the earlier of 30 days from the date of the Quotation, or the depletion of Seller's inventory of that Product which was in stock at date of the Quotation. If a Sales Order for the same or substantially the same Products quoted in the Quotation is dated within 30 days of the Quotation, and if such inventory is not depleted sooner, the Sales Order price will be the same as the Quotation price and will be the price due and payable. All Products will be charged to Buyer at, and Buyer agrees to pay, the price set out in the Sales Order. Unless specifically indicated in the Sales Order, prices set out in the Quotation and the Sales Order do not include harmonized sales tax (HST), any other goods or services tax, sales tax, or value added tax, storage, insurance, transportation, shipping, handling, demurrage, installation, start-up, operation or maintenance costs, customs broker fees, duties, or import fees associated with Products delivered outside Canada. Prices set out in the Quotation and the Sales Order are conditional on the timing and Product quantity set out in such documents, and are subject to change if Buyer subsequently requires different timing or a different type or quantity of Product. To the extent a Product was originally manufactured outside Canada, Seller is responsible for, and the price includes, all import into Canada fees paid by Seller.

5. Currency. All prices set out in the Quotation and/or Sales Order are in the currency indicated therein. CDN means Canadian dollars and USD means United States of America dollars.

6. Payment Terms. Buyer is required to pay Seller the net amount on the Sales Order without set-off or deduction, in accordance with the terms of the Sales Order. Payment may be made by cheque made out to Black Diamond Engineered Products Inc. as payee, money order, bank draft, credit card, wire transfer or other method confirmed by Seller to be appropriate, provided that any fees in connection with a method of payment shall be the responsibility of Buyer. All overdue payments bear interest, starting on the day the payment is due, at a rate of 2% per month (24% per annum). Any failure by Buyer to make payment when due, which is uncured for a period of five (5) business days following notice from Seller to Buyer, shall be an event of default hereunder entitling Seller to change its credit or payment requirements, suspend or cancel performance of any of Seller's obligations to Buyer, including cancelling or suspending shipment of any Products. If an event of default by Buyer is not cured within 90 days, Buyer shall be responsible to pay Seller's reasonable expenses, including but not limited to reasonable legal fees, to collect such amounts. Seller may at any time request financial information regarding Buyer, a deposit, or a guarantee from a suitable guarantor, in order to satisfy Seller's credit and risk management requirements.

7. Shipment and Delivery Risk. The "Due Date" indicated on the Sales Order is an approximate date on or about which Buyer has requested delivery of the Product to the "Ship To" location and which Seller agrees, conditional on Buyer having provided all necessary information, to use reasonable efforts to meet. Seller cannot guarantee that the Product will be delivered on such date. Unless other arrangements have been agreed to by Buyer and Seller, Buyer agrees to accept delivery when the Products are ready to ship. All Products are provided on the basis of FOB Bath or Burnsville from Seller's shipping dock located at Bath, Ontario, Canada or Burnsville, Minnesota, USA (the "Dock"). Buyer or its carrier shall take delivery from the Dock and shall accept all responsibility and liability, including shipping charges and delivery risk, with respect to the Products from the Dock. All rights, title and interest to and in the Product and all risk of loss and damage associated with the Products will transfer to Buyer at the Dock upon shipment. Seller shall have no responsibility or liability whatsoever for the Product after it leaves the Dock, and it is Buyer's responsibility to insure Products from the Dock. Unless otherwise indicated on the Sales Order or agreed in writing between the parties, shipping arrangements will be made by Buyer at the sole cost of Buyer.

8. Seller Representations and Limited Warranty. Seller represents and warrants that it is a corporation validly incorporated and existing under the laws of the Province of Ontario, and has the corporate power and authority to enter into this transaction to provide the Products on the terms and conditions set out herein. Seller represents and warrants that Improvements shall be free from defects in materials and workmanship when used under proper and normal conditions. Seller shall have no liability for Improvements or Products which have been the subject of damage (including accidental damage), misuse, improper installation, use of unauthorized parts or components, unauthorized conditions or power sources, neglect, corrosion, or inadequate or improper maintenance (which includes preventative maintenance) or technology. Buyer acknowledges and agrees that, unless indicated otherwise in writing by Seller, Seller is not the original manufacturer of the Products and, subject to section 13, this warranty does not apply to the Products, materials, parts or components thereof, to the extent manufactured by any person other than Seller. Seller expressly disclaims and makes no representation, warranty, or guarantee and shall have no liability with respect to defects in materials or workmanship of, or intellectual property rights associated with, any Product by or from an original manufacturer, or the suitability or performance of a Product for the use promoted by the original manufacturer. For Products with an original manufacturer's warranty, Seller will provide such manufacturer's warranty to Buyer if such warranty has been provided to Seller, and will use commercially reasonable efforts to assist with any claim by Buyer pursuant to the manufacturer's warranty. Notwithstanding that Seller (or entities or representations with whom Seller may have a business relationship) may have discussions with Buyer with respect to use or application or installation of the Product, Seller does not warrant and shall have no liability for Products installed or used in actual operating conditions which differ from the manufacturers' specified or recommended conditions.

9. Exclusive Remedy and Limitation on Liability. If Seller breaches a warranty hereunder Buyer's remedy is limited to, at Seller's option: (i) repair of Improvement or Product; (ii) replacement of Improvement or Product; or credit to Buyer's account for purchase price paid for Product. Buyer must provide notice of breach of warranty within 30 days of when Buyer discovered or ought to have discovered such breach, and acknowledges that time is of the essence. Buyer's failure to provide notice to Seller in accordance with this section shall release Seller from any obligation or liability with respect to such breach. Seller's liability for any reason, including any breach or default hereunder, shall not in any case exceed the price paid by Buyer for the Products. In no case shall any Seller Party be liable for any consequential, indirect, or punitive damages, including without limitation, economic loss, loss of business, loss of other equipment or products, incidental loss, anticipated profits, revenue or use, or costs or claims of any third person any nature. In no case shall Seller be liable to any person seeking to enforce a warranty through a Buyer. The warranties and remedies set out herein are exclusive and exhaustive, and there are no other representations or warranties of any kind, express or implied, statutory, by operation of law, or otherwise, to the fullest extent permitted by Applicable Law, as to merchantability, suitability or fitness for a particular purpose, or any other matter with respect to any Product, including against latent defects, made or given herein or elsewhere by Seller.

10. Indemnity. Buyer agrees to indemnify and hold harmless Seller and its shareholders, directors, officer, employees, agents and representatives for and against any claims, actions, proceedings, complaints, investigations, losses, damages, fines, penalties (including reasonable legal fees) brought against or incurred by a Seller as a direct or indirect result of any breach or default of Buyer's obligations hereunder, including any non-compliance with Applicable Laws, and any failure to meet all tax liability, including penalties and interest thereon.

11. Force Majeure. Seller will be relieved of its obligations hereunder to the extent that its performance is delayed or prevented by any cause beyond the reasonable control of Seller (an event of "Force Majeure"), including without limitation, an act of God, war, riot, insurrection, terrorism, civil disobedience, fire, explosion, accident, natural disaster, labour unrest, inability to obtain materials or components, orders or requests or investigations of any governmental authority, change of law or regulation, or interruption of technical or telecommunication systems. If any event of Force Majeure continues for a period of more than 10 continuous days, or exists for more than 20 days in any month, Buyer may revise the shipping date or may cancel the order if the Product is not identified as "NCNR".

12. Notice. Any notice required to be provided to Seller shall be sent to the General Manager by email at Sales@BDproduct.ca or by mail to 112 William Henderson Drive Unit 1, Bath, ON, Canada, K0H 1G0, or by fax to 613-544-2003.

13. Export and Import Laws. Buyer is solely responsible for compliance with all applicable laws governing the purchase and shipment of Products from Canada to other jurisdictions.

14. Intellectual Property and Confidentiality. All Improvements, designs, drawings, plans, specifications, systems, and business, proprietary, marketing, or financial information of Seller ("Confidential Information") shall remain the property of Seller and shall not be used for any purpose or disclosed by Buyer without the prior written consent of Seller. All intellectual property including any potential patent rights, in any Improvements shall at all times remain exclusively with Seller and no intellectual property rights in any Improvements shall vest with Buyer in connection with the purchase.

15. Assignment. Buyer shall not assign its rights or obligations under any Quotation or Sales Order or other agreement to purchase Products from Seller, without the prior written consent of Seller.

16. Dispute Resolution. Buyer and Seller agree to use commercially reasonable efforts to resolve any disputes arising hereunder. A party seeking resolution of a dispute shall provide notice in writing to the other party, which notice shall (i) identify a senior official from the notifying party, (ii) set out the facts giving rise to the dispute, and (iii) request that a senior official from the other party to resolve such dispute. Such senior officials shall use good faith efforts to reach a mutually agreeable resolution within 20 days failing which the parties agree that the dispute shall be resolved by binding arbitration by a single arbitrator mutually appointed, and if such appointment is not mutually agreed, appointed in accordance with the (Ontario) Arbitration Act, 1991, S.O. 1991, C-17, as may be amended or replaced from time to time. Except to the extent otherwise specified herein, the arbitration procedure shall be that set out in the Arbitration Act. Every award and determination by the arbitrator shall be final and binding and there shall be no appeal therefrom. Responsibility for the costs of arbitration shall be determined by the arbitrator based upon the nature of the issues raised and the relative success of each party.

17. Jurisdiction. This Agreement shall be construed and performed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. Any suit, action, claim or other proceeding arising out of or in any way connected with these Terms and Conditions or any other arrangement between Seller and Buyer shall be brought in a court in Ontario.

18. Disclaimer. Seller does not employ or control EMT Engineering Sales Ltd. ("EMT") or any employees, contractors, representatives or agent of EMT (each a "EMT Representative"), and hereby expressly disclaims any legal responsibility or liability for any representations, warranties, covenants, guarantees, or other comments or advice provided by any EMT Representative with respect to the Products.

General Terms and Conditions of Sale Rev 1 2005

General Terms and Conditions of Purchase.

These Terms and Conditions (the “Terms”) apply to every purchase of Products by Black Diamond Engineered Products Inc. (“Buyer”) from any vendor, supplier or other person providing Products or services (“Vendor”) to Buyer, whether or not pursuant to a Buyer or Vendor purchase order (PO) or sales order (SO) and irrespective of any language to the contrary in any PO or SO. In these Terms, “Products” means the parts, components, devices or materials identified in the Order, and “Order” means any PO or SO pursuant to which the Buyer is purchasing Products from the Vendor.
Terms Apply and Prevail. By accepting the Order from Vendor, Vendor acknowledges and agrees that these Terms automatically and without further signatures being required apply to the Order and take precedence over any terms or conditions of Vendor or any other written or verbal requests or requirements of Vendor, and that these Terms, together with the Order, constitute the entire agreement of the parties with respect to the Order. These Terms may only be modified by mutual agreement of the Buyer and the Vendor in writing signed by both parties. These Terms apply to any substituted, replaced, or repaired Products provided by Vendor hereunder. If Vendor notifies the Buyer in writing that Vendor does not accept these Terms, Buyer reserves the right to cancel the Order by notice in writing to the Vendor, and in the event of such cancellation notice the Order will be null and void without any liability to Buyer. If, despite this paragraph, any different specific terms or conditions of Vendor (“Vendor Terms”) are found at law to constitute all or part of the agreement between Buyer and Vendor related to the Order, the parties expressly agree that to the extent not expressly contrary to such applicable Vendor Terms these Terms shall remain applicable.
Delivery Date and Location. Vendor shall deliver the Products in the quantities and on the required delivery Date set out in the “Expected” field of the Buyer’s PO (the "Delivery Date"). If Vendor fails to deliver the Products in full on Delivery Date the Buyer may terminate the Order immediately by providing written notice to Vendor, in which event Vendor shall indemnify Buyer against any direct costs and expenses directly attributable to Vendor’s failure to deliver the Products on the Delivery Date. All Products shall be delivered to the Buyer’s address specified in the Order (the "Delivery Location") during normal business hours or as otherwise instructed by Buyer.
Shipping Terms. Vendor shall organize and arrange for shipping and delivery FOB to the Delivery Location in accordance with shipping terms specified in the Order. Without limiting the foregoing, Vendor shall be solely and exclusively responsible and liable for all costs, duties, taxes, import or export costs, and delivery charges until the Products arrive at the Delivery Location. Vendor shall give written notice of shipment to Buyer when the Products are delivered to the carrier for shipping/transportation. Se Vendor shall provide Buyer all shipping documents, including the commercial invoice, packing list, air waybill or bill of lading, and any other documents necessary to release the Products to Buyer on the same business day (or as soon as reasonable possible the following business day) after Vendor delivers the Products to the carrier. The Order number must appear on all shipping documents, shipping labels, air waybills or bills of lading, invoices, correspondence and any other documents pertaining to the Order. All goods shall be packed for shipment in a manner sufficient to ensure that the Products are delivered in undamaged condition and in accordance with applicable law and industry standards.
Title and Risk of Loss. Title and risk of loss passes to Buyer only upon arrival of the Products at the Delivery Location and signed acceptance by the Buyer. Vendor bears all risk of loss or damage to the Products until complete delivery of the Products to, and acceptance of the Products by Buyer at, the Delivery Location. Without limiting the foregoing, Vendor shall ship to Buyer replacement Products where the Products are lost or damaged at any time before delivery to, and acceptance by Buyer at, the Delivery Location, at Vendor’s expense and the shipment of such replacement Products shall be on the same terms as provided herein with no further cost, loss, or liability to Buyer. Vendor covenants and agrees to select and arrange for a carrier and insurance to deliver the Products in accordance with the Order and good industry standards, and to indemnify Buyer for any losses incurred as a result of the failure of carrier to deliver in accordance with the Order. If this indemnification is triggered, Vendor shall have the right to subrogate to any related claims of Buyer against carrier upon indemnifying Buyer in full.
Inspection and Rejection of Non-Conforming Products. Notwithstanding any signed delivery acceptance, the Buyer has the right to inspect the Products on or after the Delivery Date for quantity and quality assurance and compliance with the PO and any applicable specifications. Buyer, at its sole option, may inspect all or a sample of the Products, and may reject all or any portion of the Products if it determines the Products are non-conforming or defective. If Buyer rejects any portion of the Products, Buyer has the right, effective upon written notice to Vendor, to: (a) rescind the Order in its entirety entitling Buyer to a full refund; (b) accept the Products at a reasonably reduced price mutually agreed; or (c) reject the Products and require replacement of the rejected Products. If Buyer requires replacement of the Products, Vendor shall, at its expense, promptly replace the non-conforming Products and pay for all related costs, including, but not limited to, transportation charges for the return of the defective Products and the delivery of replacement Products on the shipping terms provided herein.
Information for External Providers (Vendors). The processes, products, and services to be provided including the identification of relevant technical data (e.g., specifications, drawings, process requirements, work instructions), will be indicated as required on the Purchase Order. All products and services will be approved as per the specifications indicated on the purchase order and conformance to those specifications. The approved methods, processes, and equipment used to provide the products or services on the purchase order shall be as per the external provider’s standards unless otherwise indicated on the purchase order. The approved process for release of products and services by the external provider shall be as per the external provider’s standards, unless otherwise specified on the purchase order. External providers shall ensure all employees have the required competency to complete and comply with the external provider’s processes for any and all work in relation to fulfilling this purchase order. Any additional required competency will be communicated by Black Diamond on the purchase order. The external provider’s interactions with Black Diamond shall be in English, and through communication methods such as email, in person, or through telecommunications as required. The external provider’s performance will be controlled and monitored by Black Diamond and be evaluated at least annually. Types of evaluation will include at a minimum, non-conformance and on time delivery performance. Any verification or validation activities that Black Diamond, or its customer, intends to perform at the external providers’ premises will be communicated on the purchase order. Testing, inspection, and verification of the products or services provided by the external provider shall be conducted as per the external provider’s standard processes unless otherwise specified on the purchase order. Unless otherwise specified on the purchase order, statistical techniques for product acceptance such as a sampling plan may be used as long as the sampling plan accepts on 0 defects, and rejects the lot on one or more defects. All external providers must have a quality management system approved by Black Diamond. For certain products and services, a certified QMS (i.e, ISO 9001, AS9100, AS9120, IATF16949) will be required as determined by Black Diamond or its customers, and will be communicated to the external provider as required. Requirements for the use of Black Diamond customer-designated or approved external providers, including process sources (e.g., special processes) will be communicated on the purchase order. External providers will notify Black Diamond of nonconforming processes, products, or services and obtain approval from Black Diamond for their disposition. For Aerospace Designated Products external providers shall prevent the use of suspected unapproved, unapproved, and counterfeit parts using a documented method in compliance with FAA AC 0056 and FAA AC 0029. For Aerospace Designated Products, external providers shall notify Black Diamond of changes to processes, products, or services, including changes of their external providers or location of manufacture. External providers flow down to their external providers applicable requirements including Black Diamond requirements in these terms, or on the purchase order. External providers shall provide a certificate of conformity, test reports, or authorized release certificate, as applicable and/or as indicated on the purchase order. For Aerospace Designated Products, external providers shall retain all documents related to the order for a period of 10 years minimum, for all other products they will be retained for 4 years or as otherwise indicated on the purchase order. Documents related to any Black Diamond order may be dispositioned, after the specified retention periods, as per the external provider’s standard process unless otherwise requested by Black Diamond. Black Diamond, its customer, or regulatory authorities as applicable, shall have the right of access to the applicable areas of the external provider’s facilities and to applicable documented information at any level of the supply chain in relation to this purchase order. External providers shall ensure that their employees and all sub-tier employees are aware of their contribution to product or service conformity, their contribution to product safety, and the importance of ethical behavior.
Price. The price of the Products is the price stated in the Order (the "Price"). Unless otherwise specified in the Order, the Price includes all packaging, transportation and other shipping costs to the Delivery Location, insurance, customs duties and fees and applicable taxes, including, but not limited to, all, harmonized sales tax, goods and services tax, provincial sales tax, value added tax, use or excise taxes. No increase in the Price or additional charge is effective, whether due to increased material, labour or transportation costs or otherwise, without the prior written consent of Buyer.
Payment Terms. To the extent not prepaid or otherwise set out in the Order, Vendor shall issue an invoice to Buyer on or any time after the completion of delivery of the Products and only in accordance with the Terms. Buyer shall pay, in the currency identified in the Order, all properly invoiced amounts due to Vendor within sixty (60) days after Buyer's receipt of such invoice, except for any amounts disputed by Buyer in good faith. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Vendor against any amount payable by Buyer to Vendor. Any dispute amount shall be sent out in writing with particulars.
Conditions and Warranties. Vendor warrants to Buyer that for a period of six (6) months from the Delivery Date, all Products will: (a) be free from any defects in workmanship, material and design; (b) conform to applicable specifications, drawings, designs, samples and other requirements specified by Buyer; (c) be fit for their intended purpose and operate as intended; (d) be merchantable; (e) be free and clear of all liens, security interests or other encumbrances; and (f) not infringe or misappropriate any third party's patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance or payment of or for the Products by Buyer. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer's discovery of the non-compliance of the Products with the foregoing warranties. If Buyer gives Vendor notice of non-compliance with such warranties, Vendor shall, at its own cost and expense, within ten (10) days (or a period otherwise mutually agreed in writing) replace or repair the defective or non-conforming Products and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or non-conforming Products to Vendor and the delivery of repaired or replacement Products to Buyer.
General Indemnification. Vendor shall defend, indemnify and hold harmless Buyer, its subsidiaries, affiliates, successors or assigns and all their respective directors, officers, shareholders and employees, and Buyer's customers (collectively, "Indemnitees") against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable legal and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, "Losses") relating to, arising out of or occurring directly or indirectly as a result of Vendor’s negligence, willful misconduct, or failure to comply with these Terms or failure to comply with any applicable laws.
Insurance. Vendor shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than two million dollars ($2,000,000.00) with financially sound and reputable insurers. Upon Buyer's request, Vendor shall provide Buyer with a certificate of insurance from Vendor's insurer evidencing the insurance coverage specified in this Order.
Compliance with Law. Vendor is in compliance with and shall comply with all applicable laws, regulations and ordinances. Vendor has and shall maintain in effect all the licences, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Order. Vendor is solely responsible for compliance with all applicable laws governing the sale and shipment of Products to the Delivery Location, including any import or export laws.
Termination. Without limiting any other rights of Buyer under these Terms or other applicable law, unless specifically identifies as non-cancellable / non-refundable (NCNF) in the Order, Buyer shall have the right to terminate the Order in whole or in part at any time (prior to the Order being shipped) upon two business days’ notice in writing to Vendor, provided however that Buyer will reimburse Vendor for Vendor’s reasonable and demonstrable out of pocket costs directly attributable to the termination by Buyer, which in no case shall exceed 10% of the value of the order terminated. Other than as expressly provided in the preceding sentence, if Buyer terminates the Order for any reason, Vendor’s sole and exclusive remedy is payment for the Products received and accepted by Buyer prior to termination. Upon receipt of a termination notice, Vendor shall stop all work on the Order and shall not ship the Order.
Limitation of Liability. Buyer’s maximum liability to Vendor relating to the Order shall not, under any circumstances, exceed the aggregate amount actually paid or payable to Vendor under the Order.
Confidential Information. All non-public, confidential or proprietary information of the Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," in connection with the Order is confidential, solely for the use of completing the Order and may not be disclosed, used, or copied unless authorized by Buyer in writing.
Force Majeure. A party will be relieved of its obligations hereunder to the extent that its performance is delayed or prevented by any cause beyond the reasonable control of such party which could not have been prevented or avoided by the commercially reasonable efforts of such party (an event of "Force Majeure"), including without limitation, an act of God, war, riot, insurrection, terrorism, civil disobedience, fire, explosion, accident, natural disaster, labour unrest, closure or shutdown or regulatory restrictions directly due to quarantine or pandemic measures specifically impacting the party, orders or requests or investigations of any governmental authority, change of law or regulation, or interruption of technical or telecommunication systems, provided that the party claiming Force Majeure shall use commercially reasonable efforts to mitigate or end the event of Force Majeure and the period of Force Majeure shall only be valid to the extent it cannot be mitigated by such party If any event of Force Majeure continues for a period of more than 10 business days, Buyer may revise the Delivery Date or may cancel the Order at the option of the Buyer.
Assignment. Vendor shall not assign, transfer, delegate or subcontract any of its rights or obligations under the Order to any person without the prior written consent of Buyer. Buyer may at any time assign or transfer its purchase obligations under the Order to any affiliate or to any person acquiring all or substantially all of Buyer's assets.
Governing Law. All matters arising out of or relating to this Order shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein,. Any suit, action, claim or other proceeding arising out of or in any way connected with these Terms, the Order, or any other arrangement between Vendor and Buyer shall be brought in a court in Ontario . The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to the Order.
Cumulative Remedies. The rights and remedies under these Terms are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
Notices. Any notice required to be provided to Buyer shall be sent to the General Manager by email at Sales@BDproduct.ca or by mail to the address provided for on the Order. Any notice required to be provided to Vendor shall be sent to the email address used by Buyer to communicate with Vendor with respect to the Order, or by mail to the address provided for on the Order. Any notice sent by mail shall be deemed delivered on the day it is actually received if during business hours. Any notice sent by email, other electronic means shall be deemed delivered on the day of transmission if prior to 4pm EST, or the next business day where the day of transmission is not a business day or if after business hours.
General. If any term or provision of this Order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. No waiver by Buyer of any of the provisions of these Terms or the Order shall be effective unless explicitly set forth in writing and signed by Buyer. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Order shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. Provisions of this Order which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order.
General Terms and Conditions of Purchase Rev 1 15-Dec-2021