1109 - 4416 64 th Ave SE Calgary AB T2C 2B3
403-236-7575
1109 - 4416 64 th Ave SE Calgary AB T2C 2B3
403-236-7575
These General Terms and Conditions of Sale, including without limitation, any appendixes, exhibits or schedules attached hereto (collectively, the “Terms”) shall govern the provision by Metro Machine Works Ltd (the “Supplier”) to the customer (the “Buyer”), of goods and/or services (the “Work”) (collectively, the “Transaction”). The Buyer’s issuance of a purchase order or any other document which indicates its willingness to proceed with the Transaction shall be conclusive evidence of the Buyer’s acceptance of these Terms, whether or not the Buyer submits its own terms and conditions as part of such acceptance or otherwise as part of the Transaction (such purchase order or such other document which indicates its willingness to proceed with the Transaction is hereinafter defined as “Order”). The Supplier shall not be obligated to accept any Order issued by the Buyer.
Quoted pricing is valid for 30 days after initial issuance. Notwithstanding the foregoing, if Buyer is subject to a metal surcharge or any variation in raw material costs, Supplier shall be entitled to vary any agreed upon pricing, at any time during the term of an Order. Other operations, such as, but not limited to, heat treating and sandblasting are not included in the quoted, unless specifically stated otherwise in the Order.
All changes made to the original specifications are subject to price adjustment.
Shipping dates are estimates based on factory conditions at time of quotation and are subject to change at any time during the term of an Order.
In no case will the Supplier be liable for any damages on account of any delay in delivery, whether or not excused hereby. Any delays caused by the Buyer (e.g. revisions, drawing release delays, etc.) will impact the completion of the Work, and may cause changes to the previously agreed upon pricing or delivery dates. The Supplier will not be liable for any delay in performance due to any cause beyond the reasonable control of the Supplier, including, but not limited to, pandemics, war (or consequences thereof), embargoes, riots, fires, floods, accidents, mill conditions, strikes, differences with workmen, accidents, endemics, explosions, windstorms, hurricanes, ice storms, earthquakes, tornados, perils of sea, civil commotion, restriction of requisitions, bankruptcy of Supplier or its suppliers/manufacturers, insolvency of Supplier or its suppliers/manufacturers, suspension of shipping facilities, act of default of carriers, failure of manufacturers and suppliers to deliver, shortage of supplies, transportation, fuel, labor or materials (including raw materials), acts of God, border shutdowns/lockouts, labour difficulties, inability to secure labour (for whatever reason) or acts of governmental authorities.
Any taxes under any applicable law, including, without limitation, any tariffs, whether existing or enacted upon time of delivery, applicable to the Transaction, whether upon or with respect to the sale, purchase, delivery, storage, processing, use, consumption or transportation of the Work, including taxes upon or measured by the receipts from the sale thereof, shall be for the Buyer's account, who shall promptly pay the amount thereof to the Supplier.
If the Supplier is required to pay any such taxes, the Buyer shall reimburse the Supplier the full amount of such taxes.
Any changes made to an Order, including, without limitation, to scope of supply, delivery date and price, must be mutually agreed upon between the Buyer and the Supplier in the form of a written change order (“Change Order”). The Supplier shall not be obligated to proceed with any changes to an Order until completion of such Change Order.
The Supplier warrants to the Buyer only that the Work shall conform to the specifications set out in the Order and be free from defects in workmanship under normal use and service, excluding normal wear and tear.
In the event of a breach of the foregoing warranty, (subject to and upon inspection by the Supplier of any such alleged defective Work and confirmation by the Supplier that such defect exists and is the responsibility of the Supplier to remedy hereunder) the only remedy available to Buyer and Supplier’s sole obligation shall be to either, as determined in the sole discretion of the Supplier:
Regardless of the aforementioned remedy selected by Supplier, Buyer shall return any such defective Work to the Supplier’s premises (or such other point of delivery as mutually agreed upon by the Parties) and all costs of shipping, removal and reinstallation are to be borne by Buyer. The foregoing warranty shall last for twelve (12) months from the Supplier’s initial date of shipment of the Work to the Buyer.
Performance issue(s) or defect(s) caused by Buyer’s failure to follow (i) the Supplier’s oral or written instructions, if any; or (ii) reasonable care processes, as to the installation, configuration, verification, storage, commissioning, use or maintenance (as applicable) of the Work or repairs to, alterations of, or work done on any Work warranted hereunder without the Supplier’s prior written authorization shall void all warranties applicable thereto. The Supplier expressly excludes and disclaims all other warranties, whether express or implied, with respect to the Work, by operation of law, course of dealing, course of performance, usage of trade or otherwise, including, but not limited to, any warranty of merchantability or fitness of the Work for a particular purpose. No Work may be returned without the Supplier’s written consent, which may be given in its sole discretion.
All Work is Ex-Works Supplier, unless noted otherwise on the applicable quotation. The Supplier disclaims all liability associated with the Buyer’s presence on the Supplier’s property, including but not limited to, if the Buyer (or its designated transporter) is on the Supplier property in order to pick up any Work. Title to the Work shall not pass to the Buyer until all the amounts due and owing to Supplier have been paid.
Notwithstanding anything to the contrary contained in these Terms or any other document whatsoever, the Supplier shall not be liable for any indirect, consequential, incidental, special, punitive, exemplary or liquidated damages, or loss of profit and the aggregate liability of the Supplier and its insurers however arising in connection with these Terms, whether arising in contract, tort (including negligence), strict liability, warranty, indemnity or otherwise, shall be limited to the purchase price paid by the Buyer to the Supplier for the items giving rise to the claims. Buyer agrees to indemnify and hold the Supplier harmless from any and all claims, losses, damages or liabilities arising from the Transaction and these Terms (including, without limitation, any quotation or Order related thereto).
Net cash payment is due within 30 days from date of invoice. Progress payments or deposits may be required and will be identified in writing at the quote stage or subsequently in the Order. The Supplier retains all rights to charge back Buyer any/all costs associated with collection of delinquent accounts. All late payments shall bear interest at the lesser of the rate of fifteen percent (15%) per annum or the highest rate permissible under applicable law, calculated daily and compounded monthly. Should any invoice not be paid in accordance within the agreed upon payment terms, Supplier may immediately cease work under any outstanding Order between Buyer and Supplier and Supplier shall not be liable for any damages suffered by Buyer resulting from such delay. In the event any payment owed by Buyer to Supplier is delayed more than twenty (20) days beyond the agreed upon payment terms, Supplier may terminate any outstanding Order at that time and Buyer shall be required to immediately pay Supplier all amounts due and owing and the full value of any such Order canceled by Supplier.
Acceptance of an Order, performance of Work, and subsequent shipment of Work shall at all times be subject to the Supplier’s review of the Buyer’s credit risk.
These Terms, the quotation and any Order may not be amended or cancelled by Buyer, except by written agreement signed by an authorized signatory of the Supplier. If an Order is terminated, the Buyer is liable for the full amount of such Order, plus other costs attributable to termination.
All right, title and interest in and to the intellectual property of the Supplier, including, without limitation, the inventions, trade secrets, copyright, general knowledge, know-how, prior designs, prior drawings, and technology, including electronic data, in existence prior the effective date of this Order shall remain with the Supplier. All intellectual property rights, including copyrights, patents, inventions (whether patentable or not), trademarks, trade secrets, know-how, confidential information and all other rights (collectively, “Intellectual Property Rights”) in and to all Work delivered to the Buyer shall be owned by the Supplier. The Supplier hereby grants the Buyer a license to use all Intellectual Property Rights on a nonexclusive, non-transferable, royalty-free and perpetual basis only to the extent necessary to enable the Buyer to make reasonable use of the Work.
Waiver by the Supplier of any of these Terms shall not constitute a waiver of any other of these Terms. If any provision of these Terms is held to be void or unenforceable such provision shall be severed here from and the remainder of these Terms shall remain operative and binding on the parties.
The Buyer shall not assign any agreement with the Supplier without the Supplier’s prior written consent.
The Transaction and these Terms shall be governed by the laws of the Province of Alberta, Canada.