Last updated: July 7 2021
These terms and conditions govern the sale of all products, parts and components (“Products”) and the provision of all services (“Services”) by Carmanah Technologies Corporation, its divisions, subsidiaries and aﬃliates (“Seller”) to any purchaser of Products (“Buyer”). These terms and conditions (“Agreement”) take precedence over any additional, supplemental or conﬂicting terms and conditions asserted by the Buyer or otherwise, including from Buyer’s customers, to which notice of objection is hereby given. If Buyer does not agree with these terms and conditions, it shall notify Seller within one (1) working day after its receipt; otherwise, it is deemed to have accepted them. Neither Seller’s commencement of performance or delivery shall be deemed or constituted as acceptance of Buyer’s or any of its customers’ supplemental or conﬂicting terms and conditions. Buyer’s submission to Seller of an order for Products or acceptance of the Products from Seller shall be deemed to constitute conﬁrmation and 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 SELLER.
All orders placed by Buyer are subject to acceptance by Seller. All orders must include a complete description of Products being purchased and quantities required. Orders may not be canceled or altered without Seller’s written consent. Seller may in its sole discretion allocate Product among its customers. Seller may designate certain orders as non-cancelable and certain Product as non-returnable (“NCNR”). All orders containing custom terms shall be NCNR.
2. Prices, Pricing Terms and Payment
The prices and pricing terms for all Product sold by Seller are subject to any additional terms and conditions that may be set out on the Seller’s Price List, which the Seller may amend from time to time. Pricing does not include freight, transportation, insurance, taxes, duties, port handling fees or customs charges. Full payment is due promptly upon placing an order unless credit has been pre-approved by the Seller. All credit terms are subject to Seller’s credit policies then in effect. Interest shall accrue on any late payment at the rate of 5% of the unpaid amount, which will be added to the amount due. Unless otherwise provided, all purchase prices shall be paid in US dollars. Buyer hereby grants, and Seller hereby retains, a purchase money security interest in all Products and proceeds from any disposition thereof until Seller has received payment in full as provided herein.
3. Delivery and Title
Delivery of Products from Seller to Buyer shall take place at the factory or warehouse location speciﬁed by Seller to the carrier who will transport the Products to Buyer (the “Delivery Point”), and delivery shall be deemed to have occurred when the Products are loaded on to the carrier’s truck, trailer, train car or other mode of transport. Selection of the carrier and delivery route shall be made by Seller unless speciﬁed by Buyer. If the carrier is selected and hired by Seller, (1) Buyer will reimburse Seller for all transportation costs paid by Seller and (2) the Seller reserves the right to charge the Buyer for reasonable storage fees incurred if the goods are not picked up by the carrier within 72 hours of the mutually agreed on shipping date. Regardless of whether the carrier is selected and hired by Seller or Buyer, the carrier shall be Buyer’s agent, and delivery of the Product to the carrier shall constitute delivery to Buyer, and title and risk of loss shall pass to Buyer upon delivery to carrier at the Delivery Point. Notwithstanding, Seller reserves all rights to hold shipments, dispose of goods and stop goods in transit, including, without limitation for Buyer’s failure to pay on time. Buyer is responsible at its cost to insure all Products from and after delivery of the Products at the Delivery Point. Buyer acknowledges that lead times and delivery dates provided by Seller are estimates only. Seller reserves the right to ship before the delivery date if Product is available to ship. Seller shall not be liable for delays in delivery or for failure to perform due to a Force Majeure (defined below). 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 Seller to any liability or penalty. If Product is damaged, lost or stolen while in the custody of the carrier, the Seller shall be deemed to have performed its obligations in full. Delivery of a quantity, which varies from the quantity speciﬁed, shall not relieve 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. Seller reserves the right to discontinue Products without notice. If a Product is no longer in Seller’s inventory, Seller reserves the right to cancel Buyer’s orders related to such Product.
Shipments will be deemed to have been accepted by Buyer upon delivery of the said shipments to Buyer or Buyer’s agent unless rejected in accordance with this paragraph. Buyer shall perform whatever inspection or tests Buyer deems necessary as promptly as possible but in no event later than ﬁve (5) calendar days after delivery, after which time Buyer will be deemed to have irrevocably accepted the Products. Any discrepancy in shipment quantity must be reported to Seller within two (2) working days of Buyer’s receipt of the Products. In the event of an over shipment, Buyer shall have the option to return the excess Products to Seller at Seller’s expense or to retain the excess Products (subject to adjustment of the invoice) and shall notify Seller of Buyer’s election within ﬁve (5) working days after receipt of the Products, failing which Buyer will be deemed to have elected to retain and pay for the excess Products. Any Product restock returns shall be subject to compliance with Seller’s return merchandise authorization (“RMA”) policies and procedures as well as a restocking charge equivalent to 50% of the value of such Product as speciﬁed in Seller’s invoice to Buyer, provided that the restocking charge will not apply to returned excess Products. Returned Products must be in the original packaging and conform to minimum package quantity (“MPQ”) requirements. Products not eligible for return shall be returned to Buyer freight collect.
5. Product Warranty
The Seller offers a limited warranty against defects in material and workmanship on its Carmanah branded Products (“Limited Warranty”). The Limited Warranty may vary for different Products. Information on the applicable Limited Warranty terms for the Product Buyer has purchased can be obtained on Carmanah’s website, partner portal or by contacting your Carmanah representative. With the exception of the Limited Warranty, the Seller expressly excludes and disclaims any and all representations, warranties, conditions and guarantees, whether express, implied, or imposed by statute, including, without limitation, any warranty of merchantability, fitness for any particular purpose, title and non-infringement. Further exclusions and limitations are set out in the Limited Warranty terms. Products that are sold by the Seller and are not Carmanah branded (“Third Party Products”) are sold AS IS, WHERE IS, and WITH ALL FAULTS by the Seller and without any express or implied warranty from Seller, but may be accompanied by their manufacturers’ standard warranties. The Buyer acknowledges that it has reviewed Seller’s Limited Warranty terms and accepts their terms and conditions, including all limitations, exclusions, and disclaimers.
The Buyer or end-user who purchases the Product assumes all responsibility and liability for loss or damage resulting from the handling or use of the Product. Seller’s aggregate liability on any claim, whether in warranty, contract, negligence, or any other legal theory, for loss, damage or injury arising directly or indirectly from or in relation to the use of the Product shall in no event exceed the purchase price of the Product which gave rise to the claim. IN NO EVENT SHALL SELLER BE LIABLE FOR PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHETHER FORSEEABLE OR NOT, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUES, LOSS OF USE OF GOODS, OR LOSS OF BARGAIN.
6. Export Control/Use of Products
Buyer certiﬁes that it will be the recipient of Products to be delivered by Seller. Buyer acknowledges that the Products are subject to export and/or import control laws and regulations including those of Canada and, where applicable, the United States and the country in which Buyer is located. Buyer agrees that it shall, at the request of the Seller, provide end-user documentation and certiﬁcation and that it shall otherwise strictly comply with all export laws of Canada, the United States and the country in which Buyer is located and assume sole responsibility for obtaining licenses and/or permits to export, re-export or import as may be required. The Buyer agrees that it shall not directly or indirectly export any Products to any country to which such export or transmission is restricted or prohibited.
7. Technical Assistance or Advice
Technical assistance or advice offered by Seller in regards to the use of any Product or in connection with Buyer’s purchases may be given at Seller’s discretion and only as an accommodation to Buyer. The Seller reserves the right to charge for technical assistance or advice at its discretion and shall have no obligation to provide any technical assistance or advice to Buyer and if any such assistance or advice is provided, it is provided at the Buyer’s own risk, without liability or responsibility on behalf of the Seller and such fact will not obligate Seller to provide any further or additional assistance or advice. No statement made by any of Seller’s representatives in connection with the Products constitutes a representation or warranty, express or implied.
8. Limitation Period
Notwithstanding any terms and condition of sale and subject at all times to any of the limitations expressed in the Limited Warranty, no action by Buyer may be brought at any time for any reason against Seller or any Product’s manufacturer more than twelve (12) months after the facts occurred upon which the cause of action arose.
9. Governing Law and Dispute Resolution
This Agreement shall be governed exclusively by the laws of the Province of British Columbia, Canada, excluding rules of international law that would result in the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods (1980) does not apply to this Agreement. If Buyer’s principal place of business is located within Canada, the parties hereby irrevocably attorn and submit to the exclusive jurisdiction of the Supreme Court of British Columbia sitting at Victoria, British Columbia, Canada in respect of all disputes arising under or in respect of this Agreement. If Buyer’s principal place of business is located outside of Canada, then all disputes arising out of or in respect of this Agreement shall be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules. The number of arbitrators shall be one. The place of arbitration shall be Victoria, British Columbia, Victoria, Canada. The language of the arbitration shall be English. Buyer hereby waives its right to trial by jury on any claim arising against Seller.
10. Force Majeure
The Seller shall not be liable for its inability to secure suﬃcient quantities of any Product or failure to deliver due to causes beyond Seller’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, pandemics, quarantine or other governmental restrictions, acts of terrorism, delays in transportation or inability to obtain labor, materials or Products through its regular sources, each of which shall be considered as an event of “Force Majeure” excusing Seller from performance and barring remedies for non-performance. If a Force Majeure event occurs, Seller’s time for performance shall be extended for a period equal to the time lost as a consequence of the Force Majeure event without subjecting Seller to any liability or penalty. Seller may, at its option, cancel the remaining performance, without any liability or penalty, by giving notice of such cancellation to Buyer.
Buyer shall indemnify, defend and hold harmless Seller against all loss, liability, cost and expense (including, without limitation, legal fees and costs) incurred by Buyer, any customer of Buyer or any end-user of the Products in connection with any claim for personal injury, loss or damage to property arising out of any Product unless such injury, loss or damage to property is solely attributable to the gross negligence of Seller or its employees.
12. Intellectual Property
Seller owns and controls, throughout the world, all copyrights, trademarks, trade dresses, design patents, and/or all other intellectual property rights, including, but not limited to, common law, statutory, and other reserved rights, in the Products. Seller’s intellectual property is for Seller’s exclusive use, reuse, and sale at any time without restrictions.
13. Statute of Limitations
Any claim or cause of action against Seller arising under this Agreement must be commenced within one year after the claim or cause of action accrued. Any claim or cause of action which is not brought against Seller within the aforementioned time period shall be deemed irrevocably waived and forever barred, and Seller shall be forever released from liability for any loss, cost, expense, damage, and other remedy. Buyer hereby waives its right to trial by jury on any claim arising against Seller or in connection with any good or part sold or delivered by Seller to Buyer.
If any part of this Agreement is invalid, all other parts of this Agreement remain enforceable. Any failure by Seller to exercise any of its rights shall not constitute or be deemed a waiver or forfeiture of such rights. This Agreement is the entire agreement between Seller and Buyer regarding its subject matter. All prior agreements and communications with respect to this Agreement’s subject matter, whether verbal or written, are of no legal effect. This Agreement inures to the beneﬁt of and is binding upon Seller and Buyer and their respective successors and permitted assigns.