Unless otherwise agreed in writing, the following standard conditions of sale shall be read together with any invoice, quote or any other agreement between the Customer and Gemini Machine Works Inc. (“Seller”). By accepting delivery of the products described by the Seller’s quote or invoice, the Customer agrees to be bound by and accepts these conditions of sale.
- Standard Items, means products manufactured sold by the Seller as listed in its catalogue of products;
- Non-Standard Items, means special order products manufactured and delivered by the Seller pursuant to the order and specifications of the Customer;
- Mating Equipment means any equipment used to connect the Standard Items or Non- Standard Items sold by the Seller to other equipment owned or used by the Customer and manufactured by third
- Extended Meanings: Words importing the singular include the plural and vice versa and words importing gender include all
- Governing Law: This contract shall be construed and governed in accordance with the laws of Alberta, Canada and the parties attorn to the exclusive jurisdiction of the Alberta Courts in connection with any
- Severability: The invalidity or unenforceability of any provision of this agreement shall not affect the validity or enforceability of any other provision
- Assignment: The delegation or assignment by the Customer of any or all of its duties or rights within these terms and conditions is prohibited without the Seller’s prior written consent; which may be withheld by the Seller in its absolute discretion.
2. Prices and Payment
- Unless otherwise stated by Seller and agreed by Seller and Customer, prices are in Canadian
- GST, other taxes, permits and other government authorization of any kind are not included in the quoted The parties shall assist each other in every manner commercially reasonable in securing such authorizations as may be required. The Seller shall not be responsible if any authorization is delayed, denied, revoked, restricted or not renewed and the Customer shall not be relieved of its obligation to pay the Seller for the products.
- Seller Invoices are due for payment upon receipt. A Customer credit account application will be considered at Seller’s discretion. Non-credit account clients shall pay the full invoice at time of delivery. Credit account balances remaining unpaid past thirty (30) days after date of invoice shall bear interest at 1½% per month (18% per annum).
- The Seller, at its option, may retain possession of equipment repaired, modified inspected, tested, maintained or serviced under this contract or any other contract until its charges for such services are The Customer acknowledges that if such charges remain unpaid after ninety
(90) days following the completion of the work and the invoicing of the Customer, the Seller may, upon at least fourteen (14) days notice by registered mail to the Customer at the Customer’s last known address, sell the equipment at public or private sale and apply the net proceeds to the Customer’s charges. Proceeds in excess of the billed amount will be to the Customer; less any overdue interest owed.
- All deliveries are “EX-WORKS” unless otherwise stated. The Seller will make all reasonable commercial efforts to make delivery within the times quoted but does not guarantee delivery time and will not be liable for any damages, loss, claim or expenses caused by any delay in
- The Seller and the Customer may agree to designate select orders as rush orders; which will be subject to overtime and expediting
- Any arrangement as to insurance, carriage or shipment of the products shall be made by the Customer and shall be at the sole cost and expense of the Customer and such arrangements shall not alter the delivery terms applicable to the
- The products shall be at the sole risk of the Customer from the time of receipt at the Seller’s facility to the Customer or to his agent or to any carrier acting on behalf of the Customer; including any such agent of carrier instructed by the Seller and acting on behalf of the Customer. The Seller will provide the Customer reasonable assistance in connection with any Customer claim for loss of or damage to Customer
4. Force Majeure
The Seller shall not be liable for delay in or non-performance of the contract or any part thereof, resulting directly or indirectly from earthquakes; epidemics; act of any governmental authority, domestic or foreign, including but not limited to war, declared or undeclared, priorities, quarantines, embargoes, licensing controls or production or distribution restrictions; accidents and disruptions including but not limited to fires, explosions, breakdowns of essential machinery or equipment and power shortages; labor difficulties including but not limited to strikes, slowdowns, lockouts, sabotage and labor shortages; failure or delay in its source of supply; acts or omissions of the Customer, including but not limited to the provision of any required equipment, material, evidence or information; or any cause beyond its reasonable control whether similar or dissimilar to those above mentioned.
Dates of delivery shall be extended for a period equal to the time lost by reason of any cause set
forth above even though such cause may occur after Seller’s performance has been delayed for
other causes. If any such delay lasts for more than ninety (90) days, the parties shall
immediately consult with one another for the purpose of agreeing on the basis upon which Seller
shall resume production at the end of the delay. If they do not agree upon a solution of the
problems involved, including adjustment of the price, within 150 days from the beginning of
such delay, then notwithstanding any other provision of this agreement, either party may, by
written notice, cancel that portion of the order which is delayed and in such event the purchaser
shall pay to Seller reasonable and proper cancellation charges. All of the provisions of this
paragraph shall apply, all other provisions notwithstanding, whether the disrupting cause is total
or partial in its effect upon the ability of Seller to perform.
- Purchased Standard Items may be returned to the Seller up to fifteen (15) days after the date of invoice for a refund of the purchase price if already Returned Standard items are subject to a restocking fee of 25%.
- Custom built or Non-Standard Items cannot be
6. Changes or Cancellation
- The Seller may agree to the Customer’s request to change the specifications of its order, and reserves the right to charge the Customer for any increase in the costs of material, labor or administration resulting from the
- Cancelled Customer orders are subject to commercial charges by Seller for all material, labor, and administrative costs incurred by Seller, including 3rd party cancellation fees, plus a reasonable profit. The minimum cancellation charge for orders already started shall be 10%. Where no work has been started and no materials have been ordered; the cancellation charge shall be zero.
7. Price Adjustments
- Any price quoted by the Seller is subject to adjustment in the event of substantial rises in the
price of materials due to any cause not in the Seller’s control or not avoidable by reasonable diligence. The Seller shall notify the Customer within (7) days of realization; any actual change in the Seller’s cost of any material that would result in an adjustment. Any such adjustment will require seven (7) days written notice to the Customer. If requested by the Customer, the Seller shall provide written substantiation of any material cost increases resulting in the price adjustment.
- The Seller warrants that any equipment or part manufactured by Seller will be free of defect in material and workmanship under normal use and proper installation and service for a period of twelve (12) months from the date of delivery. In order to commence a warranty claim, the Customer must return the equipment or part in question to the Seller or to an authorized distributor of the Seller within twelve (12) months of the delivery of the equipment to the Customer. If the Seller’s examination discloses a defect, the Seller shall at its option either repair or replace the defective equipment or part. The warranty does not cover transportation, installation, labor or other costs which shall be the sole responsibility of the All replaced equipment or parts shall become the property of the Seller.
- The above warranty does not apply to products normally consumed in operation or which have a normal life inherently shorter than the said twelve (12) month warranty period, nor does the above warranty apply to any service or repair work carried out by
- The Seller does not warrant any product not manufactured by itself, but agrees to pass on to the Customer whatever benefit of any warranty the Seller received from the supplier (the “Supplier”) of the product and takes no further responsibility for such equipment or products other than to be the Customer’s primary contact with respect to all warranty claims against the
- For the purposes of its limited warranty, the Seller will not deem as defective any equipment or part damaged or impaired by reason of reasonable wear and tear or the Customer’s failure to properly install, store, maintain, service or operate the equipment or any Mating
- Unless specifically consented to in writing, the Seller shall not be liable for the cost of any repair, replacement, adjustment, servicing or maintenance of the equipment or part by the Customer or by a third party at the Customer’s request and shall not warrant any defect of equipment or parts which it considers in its discretion to have been repaired, altered, neglected, or used in any such way as to affect the product adversely. Without limiting the generality of the foregoing, this warranty does not apply to any equipment or part used in a manner for which it was not
- The Customer shall not use, operate or install any part or equipment that it knows to be defective and shall bear the sole risk and liability for any such use, operation or
- THIS WARRANTY IS GIVEN EXPRESSLY IN PLACE OF AND EXCLUDES ALL OTHER WARRANTIES AND CONDITIONS EXPRESSED OR IMPLIED, WHETHER UNDER COMMON LAW, STATUTE OR OTHERWISE, AND THERE IS EXPRESSLY EXCLUDED EVERY FORM OF LIABILITY FOR LOSS OR DAMAGE, DIRECT OR CONSEQUENTIAL, RESULTING FROM DEFECTIVE MATERIAL, FAULTY WORKMANSHIP OR
9. Limitation of Liability
Notwithstanding anything to the contrary contained herein, the Customer and Seller further agree as follows:
- The Seller shall have no liability whatsoever on any claim, whether in contract, tort (including negligence) or otherwise, for any loss or damage arising out of, connected with, or resulting from the manufacture, sale, delivery, resale, repair, replacement or use of any product, part or equipment, except as specifically provided in the warranty provisions In no event shall the Seller be liable for special indirect or consequential damages.
- The Seller shall in no event be liable to the customer or to any other party for lost profits or revenue, loss of business, loss of goodwill, loss by reason of shutdown or non-operation, increased expenses of operation, damage to Mating Equipment or other equipment, or any other loss or damage relating in any way to products or services, whether direct or consequential, special, indirect or punitive, even if advised of the possibility of such losses or damages, or for any claim by any third 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.