Delivery dates are estimates and not guarantees and are based on conditions at the time of this Agreement. Econo will use its best effort in the ordinary course of its business to affect deliveries as specified, but in no event shall Econo be liable for any damage, consequential or otherwise, arising from any failure of Econo to meet any delivery date. Buyer shall not be entitled to terminate this agreement in the event of a late delivery of the drawings or Equipment.
RISK OF LOSS:
Risk of loss with respect to the Equipment furnished under this Agreement shall pass to the Buyer at the time of delivery of the products to the carrier for shipment. F.O.B. points shall be the Econo factory otherwise specified
Prior to commencing the manufacture of the Equipment, Econo shall invoice Buyer for the purchase price of the Equipment pursuant to this Agreement (which invoice may also reflect charges for freight, handling, taxes and other amounts payable to Econo hereunder). All amounts specified in any such invoice shall be paid by Buyer to Econo at the times and in accordance with this Agreement. Buyer shall provide the deposit(s) noted on the reverse on the dates noted therein. All deposits are non-refundable. Any amount due hereunder from Buyer and not paid by the due date hereon shall bear interest at the rate of two percent (2%) per month (24% per annum). Such interest shall be in addition to and without limitation of any other right or remedies which Econo may have under this Agreement or at law or in equity. Buyer agrees to pay any legal fees and costs incurred by Econo in the collection of any delinquent amounts due to under this Agreement. Buyer shall be responsible for all taxes arising out of or related to the provisions of products and services under this Agreement, including but not limited to sales excise taxes. Such taxes shall be in addition to the purchase price unless otherwise specified. Should any government or governmental body, board or agency impose or increase any applicable sales, excise or other taxes beyond those in effect at the date of this contract, Econo reserves the right to increase prices to the Buyer by an amount sufficient to cover such additional taxes. Econo will review the Buyer’s credit worthiness prior to Econo’s acceptance of this agreement.
MANUFACTURE, DRAWINGS AND SPECIFICATIONS:
The Equipment shall be constructed and manufactured in a good and workmanlike manner in accordance with drawings that have been prepared by Econo in reliance on specifications supplied by Buyer (the “Drawings”), within a reasonable time after acceptance and execution of this agreement by Buyer. Manufacture of Equipment by Econo shall only commence after Drawings have been jointly approved by Econo and the Buyer. Manufacturing services performed hereunder by Econo shall not be interpreted as approval of design of function by the Buyer. Econo assumes no liability whatsoever with regard to the Buyer's compliance or fulfilment of its obligations with respect to any statute, regulation or by-law prevailing at any of the surveyed locations, or the Buyer's failure to so comply with or fulfill its obligations. Manufacture of Equipment shall be made in accord with the specifications and materials noted herein and on the Drawings. No agreement or other understanding in any way changing or adding to any matters specified on the approved Drawings herein shall be binding on Econo or confer any rights on the Buyer unless attached hereto and by reference herein made a part of this agreement or made in writing signed by an authorized representative of Econo. Any cost incurred by Econo in making alterations necessitated by the furnishing by the Buyer of incorrect data and specifications will be charged to the Buyer. Buyer shall be responsible for all costs and expenses incurred from any changes to the approved Drawings or the specifications noted therein. The Buyer agrees to have an authorized member of the Buyer approve all drawings and specifications submitted by the Econo with respect to the Equipment within 10 days from date received from Econo. Failure to approve shall be considered an event of default. Buyer’s is solely liable and responsibility for ensuring that the drawings and specifications for the Equipment are consistent with and meet the Buyer’s requirements. Econo makes no representations regarding validity, soundness, strength, accuracy or adequacy of the specifications provided by Buyer and does not assume any liability or responsibility for the validity, soundness, strength, accuracy or adequacy of the specifications provided by the Buyer with respect to the Equipment not specifically set out in this Agreement. Econo will not be responsible for the performance of the Equipment where the Equipment is manufactured to the Buyer's own specifications. Buyer shall provide drawings, drafts and sketches, including the approved Drawings forthwith upon demand of Econo. The Buyer shall hold the Econo harmless against any expense or loss resulting from infringement of patents, trade marks or any other intellectual property rights arising from compliance with the Buyer's designs, specifications or instructions. All plans, drawings, designs or specifications supplied by one party to the other shall remain the property of, and shall be returned to, the first party on request or at termination or expiry of this agreement and shall not be copied and no information relating to the Equipment or special tooling shall be disclosed to any third party except for the purpose of this agreement. No photographs of a party’s equipment, installations or property shall be taken without that party's prior written consent. Each party shall keep secret and shall not divulge to any third party any information received from the other party in connection with this agreement or which becomes known to the first party through its performance of this agreement or use the information other than for the purpose of fulfilling the terms of this agreement. All drawings, including without limitation, the approved Drawing shall be protectable by patent or other legal proprietary protection made or conceived during the term of this agreement and shall be the sole property of Econo. All Equipment will be furnished subject to commercial variations in material and production operations incident to the processes employed in manufacturing unless otherwise specified.
ACCEPTANCE BY BUYER:
The Equipment shall be deemed accepted by Buyer of the date of receipt of the Equipment by Buyer. The Buyer shall have fifteen (15) days after such date to give Econo written notice that the Equipment does not conform to the drawings and specifications and to specify in detail the reasons therefore. Econo may then, at its sole election, proceed to make any necessary corrections. Under no circumstances shall Buyer be entitled to revoke acceptance of the Equipment subsequent to acceptance thereof.
TITLE TO THE EQUIPMENT:
SEQ CHAPTER \h \r 1Title to, property in and ownership of the Equipment shall remain in the Econo's name until payment in full of the purchase price has been made. The Equipment shall not be removed from the premises of the Buyer without the written consent of Econo even in the ordinary course of business.
The Buyer hereby grants to the Econo a purchase money security interest in the Equipment, SEQ CHAPTER \h \r 1all personal property in any form derived from any dealing with the Equipment and the proceeds therefrom and all other assets of the Buyer including insurance proceeds and any other payment representing indemnity or compensation for loss together with all personal property and proceeds therefrom, until payment in full of the purchase price has been made, and agrees to do all things and to execute all documents necessary to protect such security interest. The Buyer appoints the Econo as its attorney to execute any documents or other instruments necessary to perfect and enforce the Econo's security interest. In the event of non-payment by the Buyer of any part of the purchase price, the Econo retains the right to remove the Equipment without notice, and any additional charges for removal or disassembly, as the case may be, shall be to the account of the Buyer.
Econo warrants to the original Buyer only, that the Equipment will be free from defects in material or workmanship for a period of 12 months after shipment from its factory, unless otherwise specified. Econo shall, at its option, repair or replace free of charge within the warranty period any components or assemblies supplied by Econo which prove to be defective in workmanship or materials, subject to the following: (a) The warranty period for all welded, structural, mechanical, pneumatic and hydraulic components and lead acid batteries shall be 12 months from the shipment date; (b) The warranty period for all electrical components shall be 6 months from the shipment date, or such other period specified by the manufacturer(s) of said electrical components; (c) Items supplied by Econo, but not of its manufacture, carry the original manufacturer’s warranty which is passed on to the Buyer who will be required to deal directly with the manufacturer of such items on any warranty issues pertaining thereto. This warranty does not apply to damage or loss due to accident, improper use (including, without limitation, overloading), negligence, improper maintenance or modification of any part of the Equipment by the Buyer, it’s agents, employees, invitees and any person for whom it is in law responsible. This warranty is non-transferable and extended only to the original Buyer of the Equipment. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NOT SPECIFIED HEREIN RESPECTING THIS AGREEMENT, EQUIPMENT, SOFTWARE, PRODUCTS, DOCUMENTATION OR SERVICES PROVIDED. Econo assumes no liability for damages arising from the use of the Equipment by the Buyer or any third party. By purchasing Econo Equipment, the Buyer assumes all liability for any damages of any kind which may result from its use or misuse by the Buyer, Buyer's employees, agents, contractors or any other third party unknown to Econo or the Buyer, including damages due to failure of the Equipment.
WARRANTY CLAIM PROCEDURE:
A warranty authorization number must be issued by Econo to Buyer before any parts are returned or service is performed. The warranty authorization number and a detailed explanation of the warranty claim must accompany the Equipment or parts returned for service. Econo reserves the right to request prepaid returns of such defective parts to its factory for inspection and evaluation. Warranty work will be done at Econo’s facilities unless otherwise authorized. Replacement parts will be shipped F.O.B. from Econo’s factory. Econo reserves the right of final determination on the validity of all warranty claims.
If the Buyer is in default under this agreement and this default continues for five days after written notice of the default by Econo, then Econo may terminate the agreement with respect to the affected equipment, products or service. Econo has the right to declare the entire amount of the unpaid balance and any other charges to be immediately due and payable and to exercise any other remedy existing at law or in equity, including taking possession of the equipment, products and related documentation without notice or demand, and the sale, lease or other disposition of the equipment. The Buyer shall pay the Supplier all costs and expenses including legal fees (on a substantial indemnity basis) incurred in exercising its rights or remedies. In the event of default by the Buyer, Econo may require the Buyer to assemble the equipment and products provided under this agreement and make them available at a time and place reasonably convenient to Econo. No delay or failure of the Supplier to exercise any rights or remedy operates as a waiver of such rights or remedy. Buyer default includes (a) Non-payment of any account when due or non-performance of any obligation under this agreement or breach by the Buyer of any warranty or representation contained in this agreement (b) Dissolution, insolvency, receivership, assignment for the benefit of creditors or the commencement of any proceeding under any bankruptcy or insolvency laws by or against the Customer or any guarantor or surety of the Customer; and (c) Sale, encumbrance, seizure or attachment of any unit of the equipment prior to the passing of title to Customer;
Econo, its officers, directors, agents and servants and its affiliates and their respective officers, directors, agents and servants shall not be liable to the Buyer nor to any other party for any liability, including without limitation, strict liability, including liability for loss or damages due directly or indirectly to occurrences or consequences which Econo’s design and manufacturing services are designed to identify, any losses or damages, including without limitation economic and consequential losses, or direct or indirect, incidental, exemplary and punitive damages whether in contract, tort or otherwise or any other claims or expenses in any manner resulting, including without limitation liability, losses or damages directly or indirectly from, or connected with, the supply of the Equipment or the drawings or the manufacturing services whether or not supplied pursuant to this agreement, or from the discovery or elimination of any and all hazards, or from the failure to so discover or eliminate, or from the failure to provide the drawings, Equipment or manufacturing services or by reason of any action, omission, active negligence, passive negligence, including gross negligence or any error or omission in the drawings, Equipment or manufacturing services or any use or application thereof, misrepresentation, misstatement, imprudence, lack of skill or error of judgment of or by Econo or its officers, directors, agents and servants or its affiliates and their respective officers, directors, agents and servants. Notwithstanding anything in this Agreement to the contrary, Econo shall have no liability whatsoever whether arising in contract, tort, or otherwise, for loss of capital, loss of product, loss of profit, loss of use, loss of power, power outages, cost of replacement power, or any indirect, special, incidental or consequential damages.
GOVERNING LAW & COMPLIANCE:
This Agreement shall be construed, interpreted and enforced in accordance with, and the respective rights and obligations of the parties shall be governed by, the laws of the Province of Ontario and the federal laws of Canada applicable therein, and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of such province and all courts competent to hear appeals therefrom.
SEVERABILITY OF PROVISIONS:
If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such determination shall not impair or affect the validity, legality or enforceability of the remaining provisions hereof, and each provision is hereby declared to be separate, severable and distinct.
Econo’s obligations under this contract are and shall be subject to acts of God, war, invasion, insurrection, riot, the order of any civil authority, breakdowns, strikes, lockouts, labour disputes, accidents, fire, inclement weather, delays in transportation or delivery of Equipment or any other cause or causes, whether or not similar to any of the foregoing, beyond Econo’s reasonable control, and Econo shall not be liable for any loss or damages of any kind or nature whatsoever, whether direct, indirect or consequential, suffered by any person as a result of any such causes or any delay resulting therefrom. Econo reserves the right to terminate this contract should fulfilment hereof in whole or in part be delayed or rendered impossible by any of the foregoing causes. In the event of such termination, Econo’s liability and obligations under or arising out of this contract shall cease except with respect to any Equipment shipped hereunder prior to such termination and the Buyer shall remain liable to accept and pay for Equipment so shipped.
If Buyer is declared or adjudicated bankrupt or makes a general assignment for the benefit of creditors or a proposal or arrangement under the Bankruptcy and Insolvency Act or any successor legislation thereto, commits an act of bankruptcy or proposes a compromise or arrangement or institutes proceedings or admits in writing an inability to pay debts generally as they become due, or a petition is filed against a party under the Bankruptcy Act, or a liquidator, trustee in bankruptcy, custodian, receiver, receiver and manager or any other officer with similar powers is appointed for the party, Econo may elect to terminate this agreement and discontinue all further manufacture, design or delivery.
STANDARD TERMS AND CONDITIONS (effective 11/01/05)