GENERAL TERMS AND CONDITIONS OF SALE

1.     Applicability

These terms and conditions of sale (“Terms") are the only terms which govern the sale of all goods (“Goods”) and services (“Services") by JOHN BROOKS COMPANY LIMITED (“Seller”) to any person (“Buyer”) who places an order for products or services from Seller. 

The accompanying quotation, order acknowledgement, confirmation of sale, and/or invoice (the “Sales Confirmation”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements (including Prime Contracts), negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfilment of Buyer's order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms. For the avoidance of doubt, these terms are also primary to any subsequent and contradictory understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, unless they explicitly supersede this agreement and are agreed by both Buyer and Seller. 

Notwithstanding anything to the contrary contained in this Agreement, Seller may, from time to time change the Services without the consent of Buyer provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates outlined in the Sales Confirmation. This agreement applies to all types of transactions (standard product, service, custom build) from all divisions and subsidiaries of Seller. 

2.     Order Terms

• Quotations are valid for 30 days from the date of quotation.
• Prices quoted are in Canadian dollars unless stated otherwise.
• Our terms of payment are C.O.D or strictly following the formally agreed credit terms for account holders.
• Any claims for adjustment or expedited shipping must be made within 15 days of the date of issuance of the Sales Confirmation.
• Seller shall not be obligated to accept purchase orders for Goods or Services of less than $150.00. 

3.     Cancellation Terms

For these Terms, “Special Order" means Goods and Services that are produced, manufactured and/or delivered pursuant to specific requests of Buyer and includes, without limitation, standard and special projects. 

Subject to the below provisions, in the event of cancellation of an order, the Manufacturer’s standard cancellation policy or a fee equal to 25% of the total order value (“Purchase Price”) will apply, whichever is greater. “Manufacturer” means the party responsible for manufacturing the specific subject Goods. 

Cancellation of Service and Repairs

A cancellation fee shall be charged to cover planning, set-up, administration, site Work, removal of equipment and all preparation leading to a “Total Cost of Quotation”, should the order be cancelled or a request is made for the Goods to be returned.

Cancellation of Special Orders

Unless agreed otherwise at the time of order, the greatest applicable cancellation fees outlined below will apply:

• 10% of the total contract value if the cancellation request is made within two (2) weeks of the purchase order;
• 25% of the total contract value if drawings for approval have been issued;
• 75% of the total contract value if any of the major supplier purchase orders, made specifically for such Special Order, have been issued; and
• 100% of the total contract value if manufacturing of the Special Order has commenced. 

4.     Delivery of Goods and Performance of Services

• Seller shall not be liable for any delays, loss or damage in transit of the Goods. Risk of loss or damage shall pass to Buyer immediately upon delivery of the Goods.
• Seller shall make reasonable efforts to meet any performance dates to render the Services specified in the Sales Confirmation, and any such dates shall be estimates only. For further clarity, time will not be of the essence for purchase orders.
• The cost of shipping will be borne by Buyer unless alternative arrangements are explicitly agreed to in writing by both Buyer and Seller. Buyer shall be responsible for all loading costs and provide equipment and labour reasonably suited for receipt of the Goods at the Delivery Point. 

With respect to Services, Buyer shall (i) cooperate with Seller in all matters relating to the Services and provide such access to Buyer’s premises, and such office accommodation and other facilities as may reasonably be requested by Seller, for the purposes of performing the Services; (ii) respond promptly to any Seller request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Seller to perform the Services; (iii) provide such customer materials or information as Seller may reasonably request and Buyer considers reasonably necessary to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start. 

5.     Non-Delivery

Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered. Such remedies will only occur after a reasonable time period has passed for Seller to investigate the non-delivery. 

6.     Returns

Except as otherwise agreed by Seller, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement. In the event Seller agrees to accept the return of Goods, the following terms apply unless explicitly exempted:

• All Goods that are returned must be in saleable condition;
• All returned goods must be FCA, the Delivery Point; and
• Seller is entitled to charge a minimum restocking fee of 25% of the Purchase Price. 

7.     Shipping Terms

Seller shall make delivery FCA (Incoterms 2020) to John Brooks Company Limited, 2625 Meadowpine Blvd, Mississauga, ON LSN 7K5 unless otherwise stated in the Sales Confirmation (the “Delivery Point”). 

8.     Inspection and Rejection of Non-Conforming Goods

Buyer shall inspect the Goods within three (3) days of receipt (“Inspection Period"). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Non-Conforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Non-Conforming Goods" means only the following: (i) product shipped is different from that identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents. 

If Buyer timely notifies Seller of any Non-Conforming Goods, Seller shall, in its sole discretion, (i) replace such Non-Conforming Goods with conforming Goods, or (ii) credit or refund the price for such Non-Conforming Goods. Buyer shall ship, at its expense and risk of loss, the Non-Conforming Goods to the Delivery Point. If Seller exercises its option to replace Non-Conforming Goods; Seller shall, after receiving Buyer’s shipment of Non-Conforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point. 

Buyer shall be liable for any product deficiency identified during the returns inspection which was not noted in the documented material returns authorization. 

9.     Price

• Buyer shall purchase the Goods and Services from Seller at the prices outlined in Seller’s quotation. Buyer shall pay all applicable taxes.
• Unless otherwise agreed to by Seller in writing, no Goods or other merchandise will be accepted for credit or warranty adjustment.
• Pricing is based on the Canadian/US dollar exchange rates on the quotation date. Seller has the right to adjust prices to reflect any significant changes in the exchange rates up to the time of Sales Confirmation, such that if exchange rates vary by more than 3% at the time of the order versus that of the quotation date, then Seller reserves the right to adjust the Sales Confirmation accordingly.
• For Special Orders, Seller reserves the right to levy additional charges for additional parts/work if the scope of work is materially greater than understood at the time the order was made, in the sole discretion of Seller. In this instance, Seller shall provide revised pricing and a supporting inspection report.
• All quoted/acknowledged amounts are subject to an increase in pricing commensurate with any increase in the cost of goods arising from any tariffs imposed that were not incorporated into the original pricing. 

10. Documentation

The Manufacturer’s standard Quality Assurance/Quality Control programs, testing and documentation will be provided on request. If any special testing or documentation is required there will be an additional charge. 

11. Payment Terms

• Buyer shall pay all invoiced amounts due to Seller within thirty (30) days from the date of Seller’s invoice.
• Buyer shall pay interest on all late payments at the lesser of the rate of eighteen percent (18%) per annum or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
• For Special Orders, unless otherwise agreed upon, Buyer agrees to pay Seller and Seller is entitled to receive payment in installments as follows:
  • 10% of the Purchase Price payable upon data submittal for approval;
  • 20% of the Purchase Price payable upon the purchase by Seller of Major Equipment;
  • 60% of the Purchase Price payable upon readiness to ship to Jobsite (i.e. Ex. Works), based on invoiced partial shipments; and
  • 10% of the Purchase Price payable upon provision by Seller to Buyer of final documentation. 

12. Credit Terms

All sales are subject to 30-day payment terms, unless otherwise specified by Seller. Acceptance of a purchase order with alternate terms does not constitute acceptance of those terms. 

13. Warranty

For all Goods purchased from Seller, the Manufacturer’s standard warranty terms and period of warranty shall apply. An extension of the duration of the warranty may be available from the Manufacturer at an additional charge. 

For Special Orders, subject to the following sentence, Seller warrants to Buyer that the Goods shall materially conform to the description in Seller’s documentation and shall be free from defects in material and workmanship. The foregoing warranty shall not apply to any Goods that are specified or otherwise demanded by Buyer and are not manufactured or selected by Seller, as to which (i) Seller hereby assigns to Buyer, to the extent assignable, any warranties made to Seller and (ii) Seller shall have no other liability to Buyer under warranty, tort or any other legal theory. If Buyer gives Seller prompt written notice of breach of this warranty within 12 months from shipment, Seller shall, at its sole option and as Buyer’s sole remedy, repair or replace the subject Goods or refund the Purchase Price. If Seller determines that any claimed breach is not, in fact, covered by this warranty, Buyer shall pay Seller its then customary charges for any repair or replacement made by Seller. Seller's warranty is conditioned on Buyer (a) operating and maintaining the Goods in accordance with Seller’s instructions, (b) not making any unauthorized repairs or alterations, and (c) not being in default of any payment obligation to Seller. Seller’s warranty does not cover damage caused by chemical action or abrasive material, misuse or improper installation (unless installed by Seller). The warranties outlined in this section are Seller’s sole and exclusive warranties. Seller makes no other warranties of any kind, express or implied, including without limitation, any warranty of merchantability or fitness for purpose. 

For service repairs on-site, all Goods and Services shall be guaranteed free from all defects of material, workmanship and installation for twelve (12) months from date of official acceptance by Buyer in writing (not to exceed 3 months after the date of service or delivery but normally expected to be within 5 business days of the date of delivery). All costs, including freight, packing, material, labour, installation, and other related services, will be as specified in the quotation. The signing of a packing slip, startup verification, or other similar document, does not indicate acceptance. 

14. Limitation of Liability 

IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. 

IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS AND SERVICES SOLD HEREUNDER OR $1,000.00, WHICHEVER IS LESS. 

15. Force Majeure

Neither Seller nor Buyer shall have any liability for any breach, other than a breach of payment obligations, caused by, but not limited to, extreme weather or other act of God, strike or other labor shortage or disturbance, fire, accident, war or civil disturbance, delay of carriers, failure of normal sources of supply, act of government or any other cause beyond such party’s reasonable control (a “Force Majeure”). For clarity, this Force Majeure clause shall not apply to payment obligations. 

If a Force Majeure occurs, the party affected shall promptly notify the other party with evidence of the occurrence of the said event. The party claiming Force Majeure shall give prompt notice once the end of the Force Majeure situation is foreseeable. The party affected by a Force Majeure and which has given such notice shall be excused from the performance of its obligations under this Agreement only to the extent that such party's performance is prevented, hindered or delayed. Each party shall do everything reasonably possible to minimize the effects of such Force Majeure. 

If an Event of Force Majeure continues for a period exceeding ninety (90) consecutive days, either Party may, upon written notice to the other Party, terminate the affected portion of the Agreement without further liability, save and except for payment of Goods delivered and Services performed up to the date of termination. For greater clarity, the suspension of obligations due to Force Majeure shall not extend indefinitely, and termination under this Section shall be without prejudice to any rights or remedies accrued prior to such termination. 

16. Tariffs

All quoted/acknowledged amounts are subject to an increase in pricing commensurate with any increase in the cost of goods arising from any tariffs imposed that were not incorporated into the original pricing. 

17. Compliance with Laws and Liability

The Buyer shall at all times comply with all statutes, laws, ordinances, regulations, rules, codes, constitutions, treaties, common law, governmental orders, or other requirements or rules of law of any governmental authority ("Laws"). The Buyer acknowledges that the Goods and Services are subject to Canadian trade sanctions and export control laws, and agrees not to export, re-export, resell, or otherwise transfer them in violation of such laws, or engage in any other act that contravenes such laws. The Buyer is solely responsible for compliance with all Laws after delivery. The Seller shall not be liable for any claims, damages, losses, liabilities, demands, suits, judgements, penalties, fines, or expenses arising from the Buyer’s breach of any Laws after delivery, including without limitation, trade sanctions and export control laws, and the Buyer shall indemnify and hold the Seller harmless against all related claims, damages, losses, liabilities, demands, suits, judgements, penalties, fines, or expenses, and all costs and expenses arising in connection therewith. 

       18. Minimum Order Value

The Seller’s minimum order value is $150.00 CAD per purchase order, exclusive of applicable taxes, shipping, handling, and other charges. Orders submitted for less than this amount will either (i) be adjusted by the Seller to meet the minimum order value, or (ii) be subject to cancellation at the Seller’s sole discretion. For greater clarity, the Buyer agrees that the Seller shall have no obligation to accept or fulfil any order that does not meet the minimum order value. 

       19. Assignment

Neither the Buyer nor the Seller may assign or transfer this Agreement or any rights or obligations hereunder without the prior written consent of the other party. Any assignment made without such consent is void. This Agreement binds and benefits the parties and their permitted successors and assigns.