As of Dec. 22, 2000.
TERMS OF SALE
Set out below are the terms and conditions applicable to the sale by EMJ Data Systems Ltd. ("EMJ") of all products including those listed in the Product Catalogue and/or Price Sheets.
CONDITIONS OF SALE
I. Prices. The Purchaser agrees to pay EMJ the prices published in the EMJ Price Schedule in effect at time of shipment, less applicable discounts. Such prices are subject to change by EMJ at any time without notice.
II. Returns. EMJ may accept returned merchandise only when approved in advance and when bearing an R.M.A. (Returned Merchandise Authorization) number. The R.M.A. number is obtained from EMJ at the time of approval. Such returns must be shipped transportation-prepaid. Returned merchandise must be currently listed, in original, sealed, factory cartons and purchased within the previous 30 days. Credit will be issued at current or purchased price at EMJ's option and may be subject to a restocking charge.
III. Purchase Orders. Purchaser's purchase orders for EMJ products are subject to the terms and conditions of this policy and the ordering instructions contained in EMJ's Price Schedules published from time to time. EMJ shall not be bound by any terms, conditions or prices stated in the Purchaser's purchase orders, acceptance forms, or elsewhere which vary, limit or add to the terms, conditions or prices of this policy. Standing, general or blanket instructions will not be accepted. No order for EMJ products shall be binding upon EMJ until accepted by EMJ or by shipment. Any such order shall be subject to these standard conditions of sale and acceptance shall be conditioned on assent to these conditions.
Failure of EMJ to object to provisions contained in any purchase order or other communication from a Purchaser (including, without limitation, penalty clauses of any kind) shall not be construed as a waiver of these conditions nor an acceptance of any such provisions.
No order accepted by EMJ may be altered or modified by Purchaser unless agreed to in writing signed by an authorized official of EMJ.
1V. Duties and Taxes. Prices listed or quoted include duty at the rate in effect at the date of the proposal or quotation. Such prices are subject to increase or decrease to reflect any change in duty made prior to delivery of the product.
The Goods and Services Tax (GST) will be added to the invoice price at the rate in effect at time of shipment.
Provincial and municipal taxes, where applicable, will be added to the invoice price at the rate in effect at time of shipment when exemption documentation is not provided by the Purchaser.
DELIVERY TERMS
I. Shipping Policy - F.O.B. Point. Shipping terms are F.O.B. EMJ's warehouse. Freight may be prepaid by EMJ and billed to the Purchaser. EMJ reserves the right to select the method of transportation and the routing of shipment. A Purchaser requiring shipment by a method or routing other than that selected by EMJ will be billed the increase in transportation charges.
II. Delivery. Unless otherwise expressly agreed in writing, delivery of the product will be made F.O.B. EMJ's warehouse, and EMJ reserves the right to make delivery in instalments unless otherwise specified at the time of order.
III. Loss or Damage on Shipments F.O.B. Warehouse (Standard Conditions). EMJ shall not be responsible for any loss, damage or pilferage sustained in transit. Claims of such character should be made promptly by the Purchaser against the carrier. If EMJ is notified in writing of such claims, it will lend assistance to secure adjustment. Valuation of shipment will be at carrier's standard rates unless otherwise specified by the Purchaser at additional cost.
IV. Loss or Damage on Shipments F.O.B. Destination (Exception to Standard Conditions). If delivery is made otherwise than F.O.B. EMJ's warehouse, the Purchaser shall examine the product as soon as it is received and shall give immediate notice to EMJ and the carrier of any loss or damage sustained during transit, and further in the case of any damage, the Purchaser shall request an inspection of the loss or damage by a representative of the carrier and a copy of the carrier's Inspection Report shall be sent to EMJ. If such notice to EMJ or to the carrier is not given, the product shall be deemed to have been delivered in satisfactory condition and the price shall become due and payable in full as agreed between EMJ and the Purchaser.
V. Title. Delivery of goods to a carrier shall constitute delivery to the Purchaser and, regardless of freight payment, and method, all risk of loss or damage in transit shall pass to the Purchaser at that time. Title to goods shall pass from EMJ to the Purchaser when EMJ has been paid in full. All goods shall continue to be personalty notwithstanding their mode of attachment to realty or other property. If default is made in any of the payments herein, EMJ may retain any partial payments which have been made, as liquidated damages, and EMJ shall be entitled to the immediate possession of the goods and shall be free to enter the premises where the goods may be located, and remove them as EMJ's property, without prejudice to EMJ's right to recover any further expenses or damages EMJ may suffer by reason of such non-payment.
VI. Governing Law. All contracts for the sale of EMJ products shall be governed and construed according to the laws of the Province of Ontario.
TERMS OF PAYMENT
I. Terms: All prices quoted and all payments shall be in Canadian dollars unless otherwise specified. All payments are due in accordance with invoice terms from the date of EMJ's invoice to the Purchaser. In case partial shipments are made at different times, pro-rated payments shall be made.
The Purchaser agrees that should any payments not be made when due, then interest on such overdue payments shall be paid by the Purchaser at the rate of two percent (2%) per month (twenty-six point eighty two percent (26.82%) per annum) until the price, including service charges, has been fully paid but this shall not be construed as obligating EMJ to grant any extension of time in the terms of payment.
If legal action or any proceeding or demand is brought or made by EMJ for recovery of possession of EMJ Products or for the collection of any purchase price or other sums payable to EMJ by the Purchaser or because of the breach of any other terms or conditions herein contained on the part of the Purchaser to be kept or performed, the Purchaser shall pay to EMJ all expenses incurred therefore, including all reasonable solicitors' fees in respect thereof on a solicitor and client basis.
II. Credit. EMJ reserves the right to reject any orders placed by the Purchaser and refuse to ship any accepted orders on hand or request payment in advance if at any time the Purchaser's credit standing becomes impaired or unsatisfactory to EMJ.
GENERAL PROVISIONS
I. Limitation of Liability. Notwithstanding any other provision herein or any applicable statutory provisions, neither EMJ nor the Purchaser shall be liable to the other for special or consequential damages or damages for loss of use arising directly or indirectly from any breach of contract, fundamental or otherwise or from any tortious acts or omissions of their respective employees or agents and in no event shall the liability of EMJ exceed the unit price of the defective product or of the product subject to late delivery.
II. Warranty. The products sold by EMJ are not manufactured by EMJ. All products are covered by the manufacturer's warranty direct from the manufacturer. EMJ may (at our option) assist in offering warranty repair. Where EMJ has not been paid in full for products, the warranty will not be honoured. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, AND EMJ EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS WARRANTY EXCLUDES CERTIFICATIONS OR THE LIKE FOR EQUIPMENT PERFORMANCE, USE OR DESIGN WITH RESPECT TO ANY EQUIPMENT PERFORMANCE, USE OR DESIGN WITH RESPECT TO ANY STANDARD, REGULATION OR THE LIKE (UNLESS AND TO THE EXTENT INDEPENDENTLY APPROVED IN WRITING BY AN OFFICER OF EMJ) AND EXTENDS ONLY TO THE PURCHASER OR TO A CUSTOMER PURCHASING FROM THE PURCHASER.
III. Force Majeure. EMJ shall not be liable for loss or damages or delay due to causes beyond its control including but not limited to, acts of God, acts of the Purchaser, fire, strikes, lockouts or other labour disruptions, flood, epidemics, civil or military restrictions, embargoes, car shortages, wrecks, delays in transportation or inability to obtain necessary labour. In the event of any such delay the delivery shall be extended for a period equal to the time lost by reason of the delay.
IV. Severability. Invalidity of any provision of this Sales Policy shall not affect the validity of any other provision hereof and any such invalid provision shall be severed herefrom.
V. Non-Waiver. No failure by EMJ to exercise any right accruing to it under any contract of sale entered into with the Purchaser shall operate as a waiver thereof nor preclude the exercise of any other right or privilege by EMJ.
VI. Notice. Any notice required or contemplated hereunder shall be in writing and shall be delivered personally or sent by fax or other form of telecommunication or by prepaid registered mail. Any notice sent by fax or other form of telecommunication shall be deemed to have been received when transmitted and any notice sent by registered mail shall be deemed to have been received when signed for.
SPECIAL CONDITIONS
I. Order Cancellation. An order may be terminated by the Purchaser only upon reimbursement to EMJ of expenses already incurred and commitments made by EMJ with respect to the order.
II. Packing. Prices quoted include EMJ's standard domestic packing only. Where special packing is required, refer to EMJ.
III. Shortages. EMJ reserves the right to reject orders placed by the Purchaser or to refuse to ship orders accepted in circumstances of actual or anticipated shortages of any product. EMJ reserves the right to allocate available products among its customers in such circumstances and in such manner as EMJ may determine.
IV. Year 2000 (a.k.a. Y2K) Compliance. EMJ makes no representation to Year 2000 compliance of product.