E-ONE MOLI ENERGY (CANADA) LIMITED (“E-ONE MOLI”) TERMS AND CONDITIONS OF SALE
Download this document: Sales Terms and Conditions November 2014.pdf
EFFECTIVE FROM NOVEMBER 1, 2014
All Products (the “Products”) purchased from E-ONE MOLI by a customer (the “Customer”) following receipt of a copy of these terms and conditions of sale shall be made in accordance with these terms which, together with the quotation made by E-ONE MOLI, shall constitute an agreement between the parties unless otherwise agreed to in writing. These terms may be changed by E-ONE MOLI from time to time by delivering revised sales terms to the Customer by email; fax; or mail.
1.0 ACCEPTANCE OF CONDITIONS
1.1 Some of the terms set out in these terms may differ from those set out in the Customer’s purchase order and some may be new. EONE MOLI’s acceptance of a purchase order is conditional on the Customer’s agreement to these terms in lieu of those in the Customer’s purchase order except as specifically acknowledged in writing by E-ONE MOLI. E-ONE MOLI’s failure to object to provisions contained in any communication from the Customer shall not be deemed a waiver of the provisions contained in these terms. Any changes in these terms must specifically be agreed to in writing by an authorized signatory of E-ONE MOLI before becoming binding on either E-ONE MOLI or the Customer. All orders or contracts must be approved and accepted by E-ONE MOLI.
2.0 PRICE AND TERMS OF PAYMENT
2.1 All prices quoted are in United States Dollars net of all taxes and may change without notice (the “Quotation”).
2.2 The purchase price for the Products (the “Purchase Price”) shall be as set forth on E-ONE MOLI’s Quotation. Unless specified differently on the Quotation, the Customer shall pay the Purchase Price for all the Products within thirty (30) days of the date of the invoice therefore. Overdue accounts shall bear interest at a rate of 2% per month (25.2348% per annum) until paid in full.
2.3 Each shipment shall be invoiced separately.
2.4 Products shall be delivered Exworks E-ONE MOLI’s plant located at 20000 Stewart Crescent, Maple Ridge, B.C., Canada V2X 9E7 (the “Plant”).
2.5 The Customer shall be responsible for transporting the Products from E-ONE MOLI’s Plant. Title to the Products and the risk of loss of the Products shall pass to the Customer from the point of shipment from the E-ONE MOLI Plant.
2.6 Notwithstanding that E-ONE MOLI may arrange for shipment, E-ONE MOLI shall not be responsible for any delays, losses, damage or contamination incurred during shipping regardless of any provisions for payment of freight or insurance or the form of shipping documents. The Customer should arrange for its own insurance and should notify the shipping company of its required delivery dates. Transportation will be collect or, if prepaid, will be subsequently billed to the Customer. Notwithstanding any instruction from the Customer, E-ONE MOLI shall have no obligation to ship via a carrier which does not comply with applicable laws.
3.1 All shipping dates and quantities are approximate. E-ONE MOLI will use reasonable efforts to fill all orders according to the agreed schedule and quantity.
3.2 Neither party shall be held liable or responsible to the other party for failure or delay in fulfilling or performing any obligations of these terms other than for payments on amounts already due hereto due to, but not limited to, acts of God, strikes or other labour disputes, governmental regulations or actions, inability to obtain materials or supplies, labour, equipment or transportation, or any other condition beyond the reasonable control of the affected party (a “Force Majeure Condition”). A lack of funds or general insolvency shall not under any circumstances be a Force Majeure Condition.
4.1 E-ONE MOLI warrants to the Customer that:
(a) Products shipped by E-ONE MOLI will be free from defects in materials and workmanship under normal use and service, and
(b) If the Products shipped by E-ONE MOLI are transported, stored and handled properly and, used only in accordance with the Product specification, such Products will perform to the Products specification.
4.2 The Warranty provided for herein shall be void upon:
(a) the improper use, storage, handling or transportation of the Products; and
(b) any alteration or modification of the Products.
4.3 The Warranty provided herein is valid for a period of twelve (12) months from the date of shipment of the Products by E-ONE MOLI and is in lieu of any and all other warranties expressed, implied or statutory, including, but not limited to, any implied warranties of merchantability or fitness for a particular purpose durability for a reasonable period of time, and, any other Warranty implied at law or in equity.
5.0 INSPECTION OF PRODUCTS, NOTICE OF DEFECTS OR DEFICIENCIES CLAIMS PROCEDURES
5.1 Forthwith upon receipt of a shipment, the Customer shall inspect the shipment and confirm the correct quantities have been received. No claims shall be made against E-ONE MOLI for shortages occurring before delivery to a carrier unless made within ten (10) days after delivery of the shipment to the Customer.
5.2 The Customer shall inspect each shipment of Products within a reasonable time after arrival at its destination and in any event within thirty (30) days. If the Customer discovers damage or a defect in the Products, it shall forthwith provide a reasonably detailed written description of the damage or defect to E-ONE MOLI. Failure of the Customer to make a claim in writing against E-ONE MOLI within thirty (30) days after arrival of any Products shall constitute an irrevocable acceptance of the Products free from any patent defect or damage.
5.3 The Customer shall not use or forward Products without inspecting them for apparent damage and defects.
5.4 The Customer shall not use any Products which appear defective or to have been damaged unless it has received written confirmation from E- ONE MOLI that it is acceptable to do so.
5.5 Provided the claim is one to which E-ONE MOLI is liable pursuant to its Warranty herein, it shall, at its option, either replace or repair the Products or refund the Purchase Price paid for the Products.
5.6 Warranty claims will not be considered by E-ONE MOLI unless the Products are returned by the Customer in a condition which allows for suitable testing by E-ONE MOLI.
5.7 E-ONE MOLI shall not be liable for any defective Products if examination discloses that the defective condition of such Products was caused by misuse, abuse, improper installation or application, improper maintenance or repair, assembly by other than E-ONE MOLI, alteration, accident or negligence in use, storage, transportation or handling.
5.8 If Products alleged by the Customer to be damaged or defective are returned to E-ONE MOLI for repair as provided in this section and are:
(a) not under Warranty; or
(b) determined not to be defective; or
(c) defective or damaged due to any cause or condition not covered under the Warranty provided herein, the Customer shall reimburse E-ONE MOLI for all reasonable expenses incurred by E-ONE MOLI for travelling to and/or the shipping, handling, and inspection of such Products.
6.0 LIMITATION OF LIABILITY
6.1 The liability of E-ONE MOLI, including any of its employees, representatives or agents, for breach of the Warranty, is limited at the option of E-ONE MOLI, either to the repair or replace of the Products or refund of the Purchase Price paid for the Products. The Customer agrees that its sole remedy arising from a breach of the Warranty is in the nature of liquidated damages and is in substitution for damages or losses to which the Customer might otherwise be entitled to recover at law or at equity and, in particular, the Customer acknowledges that in lieu of any action for fundamental breach of contract or breach of a fundamental term of the contract, the Customer will rely upon the provisions contained in these terms and conditions.
6.2 Except as expressly provided for herein, E-ONE MOLI, its employees, representatives or agents, shall not be liable for any damage resulting from defective Products or Products failing to meet the Products specification including, property damage, loss, for personal injury (including death) to any person, or for any other loss or damage, either direct, indirect, or consequential (including loss of profits), whether or not consented by the negligence or default of E-ONE MOLI, its employees, representatives or agents.
7.0 CUSTOMER TO INDEMNIFY E-ONE MOLI AGAINST CLAIMS
7.1 The Customer assumes all responsibility and liability for, and agrees to defend and indemnify E-ONE MOLI against, all claims, losses or damages resulting from the Customer’s (or any third party who has acquired Products, directly or indirectly from the Customer) carrier’s improper transportation, storage, handling or use of the Products, or their use in conjunction with any other product; or any other alteration or modification of the Products.
8.0 PRODUCTS RETURNED
8.1 In the event the Customer wishes to return the Products to E-ONE MOLI, the Customer shall contact E-ONE MOLI and seek written agreement which sets forth the cancellation charges to be paid by the Customer in the event of such return. E-ONE MOLI shall not be obligated to accept the return of Products except in the case of Products which do not conform with the Warranty set out herein.
9.1 All Products specification and Quotations made by E-ONE MOLI are to be strictly confidential and shall not be disclosed by the Customer to any other person.
10.0 TAXES AND CHARGES
10.1 Any tax or other governmental charges upon the sale and shipment of the Products imposed by federal, provincial, state or municipal authorities shall be the responsibility of and be paid by the Customer.
11.1 The Customer shall not assign any right or obligation under this agreement without the prior written consent of E-ONE MOLI and, any purported assignment without such consent shall be of no force or effect.
12.1 Either party’s waiver or any breach or failure to enforce its rights pursuant to this agreement at any time shall not in any way affect, limit or waive such party’s right thereafter to enforce and compel strict compliance with every term and condition hereof.
13.0 GOVERNING LAW – ARBITRATION
13.1 If a dispute, claim, disagreement or controversy of any kind arises between E-ONE MOLI and the Customer, both parties shall meet to attempt to resolve such disagreement. If the disagreement cannot be resolved by the parties, the parties shall in good faith attempt to resolve the dispute through assisted mediation.
13.2 Failing resolution of the matter in dispute through mediation, the matter in dispute shall be referred to a binding arbitration by a single arbitrator appointed pursuant to the provisions of the British Columbia Commercial Arbitration Act. The rules of the arbitration shall be agreed upon by the parties prior to the arbitration and, failing agreement, the rules shall be established by the British Columbia International Commercial Arbitration Centre at Vancouver, British Columbia. The arbitrator shall have the authority to award such damages as the arbitrator shall determine, exclusive of punitive damages, which the parties agree cannot be the subject to any award.
13.3 Except as mediated as aforesaid, all disagreements or controversies of any kind whether claimed in tort, contract or otherwise either concerning this agreement or any other matter whatsoever arising out of the relationship or dealings between the parties, shall be determined by arbitration to the exclusion of the courts in accordance with the provisions of this part and must be brought within one (1) year after the cause of action or disagreement arose. The language used in any arbitration proceeding shall be English.
13.4 This agreement shall be governed and construed in accordance with the laws of the Province of British Columbia. If for any reason a party should allege that an arbitrator does not have jurisdiction with respect to any dispute or claim arising pursuant to the agreement between the parties or the manufacture or sale of any Products by E-ONE MOLI, the Courts of the Province of British Columbia shall have exclusive jurisdiction to determine any such dispute or claim. The parties irrevocably attorn to the sole jurisdiction of the Courts of British Columbia regardless of the conflicts of laws and rules of any other jurisdiction.
Sale of products or any part thereof does not convey to Buyer any license, express or by implication, estoppel or otherwise, under any patent or patent claim with respect to which Seller can grant licenses covering completed equipment, or any assembly, circuit, combination, method or process in which any such products are used as components (notwithstanding the fact that such products may have been designed for use in or may only be useful in such patented equipment, assembly circuit, combination, method or process and that such products may have been purchased and sold for such use). Seller expressly reserves all rights under such patent or patent claim.
15.0 ADDITIONAL PROVISIONS FOR SPECIFIC CELL MODELS
15.1 Subject to section 15.3 below, the Customer shall not use or distribute any Products with cell model numbers ICR18650M, INR18650A, IHR18650C, ICP103450DA or any future E-ONE MOLI cell models (the “Restricted Products”) for use in land mobile two-way radio devices (“LMTWR”) (a “Prohibited Use”). Excluded from the definition of LMTWR are specialized tactical military radios that use defense-specific waveforms and that are subject to the International Traffic in Arms Regulations. Defence-specific waveforms include but are not limited to SINGCARS, EPLRS, HPW, SATCOM, MUOS, Link-16, HAVE QUICK II, WNW, SRW. For clarification purposes, present worldwide standards and protocols for LMTWR are: (i) clear or digital encrypted ASTRO®25 Trunked Operation; SmartZone®;SmartZone Omnilink and SmartNet® operation as well as conventional system configurations including Analog MDC-1200 and Digital APCO P25; Tetra ETSI standard ETS 300-392; TETRAPOL; Long Term Evolution (LTE) broadband technology for Public Safety band; Analog Conventional; Private Mobile Radio (PMR); Logic Trunked Radio (LTR); MPT 1327 / MPS 1327; Selcall (5-Tone); NXDN; Digital Mobile Radio (DMR); Digital Private Mobile Radio (dPMR); Police Digital Trunking (PDT); Integrated Digital Enhanced Network (iDEN); Global Open Trunked Architecture (GoTa); ARIB standards T-98 and T-102 (also known as DCR for Japan); China specific protocol (PDMS/CDMR); Enhanced Digital Access Communication System (EDACS); OpenSky and GSM-R (Railway variant of GSM for Two-Way Radio). Future protocols or standards will be derivatives of the above standards not defined yet as well as draft documents of Project 25 Conventional TDMA and China specific protocols (PDMR-T; PDMR-F).
15.2 The Customer shall use commercially reasonable efforts to notify its direct and indirect customers that the Restricted Products may not be used for a Prohibited Use.
15.3 If the Customer has, on or before October 15, 2016, purchased and accepted shipment of greater than 20000 cells (the “Sales Threshold”) of cell models ICR18650M, IHR18650C or ICP103450DA, individually for each cell model and not in aggreg