Terms and Conditions

General

For purposes of this document, K&D Pratt Group Inc will be identified as “SELLER”. These terms and conditions together with any additional or different terms contained in the SELLER’s Proposal, if any, submitted to BUYER, constitute the entire agreement between the parties with respect to the individual order and supersede all prior communications and agreements regarding the order. Additional or different terms contained in the SELLER’s Proposal shall supersede and control over any conflicting terms. These terms and conditions may not be changed or superseded by any different or additional terms and conditions proposed by BUYER.

SELLER acceptance of the order, or BUYER’s acceptance of SELLER’s Proposal, is limited to and conditioned upon BUYER’s acceptance of these terms and conditions.

In the event of any conflict between these Terms and Conditions and the SELLER’s Proposal or Quote, the SELLER’s Proposal or Quote shall prevail to the extent of such conflict.

SELLER may subcontract any portion of the Equipment or Services. All limitations of liability and protections afforded to SELLER under these Terms shall extend to its subcontractors and suppliers.

The term “Equipment” means all of the equipment, parts, accessories sold, and all software and software documentation licensed to BUYER by SELLER under the order.

The term “Services” means all labor, supervisory, technical and engineering, installation, repair, consulting or other services provided by SELLER under the order.

The term “BUYER” shall include the initial end user of the Equipment and/or services.

Price

All Proposals are guaranteed until the quotation expiration date unless otherwise specified in writing. Unless otherwise stated herein:

The price excludes federal, provincial / state, or local property, license, privilege, sales, use, excise, gross receipts, or other like taxes which may now or hereafter be applicable. BUYER agrees to pay or reimburse any such taxes which SELLER or its suppliers are required to pay or collect. If BUYER is exempt from the payment of any tax or holds a direct payment permit, BUYER shall, upon order placement, provide SELLER a copy, acceptable to the relevant governmental authorities of any such certificate or permit.

The price excludes customs duties and other importation or exportation fees, if any. If SELLER pays such customs duties and other importation or exportation fees on BUYER’s behalf, BUYER shall reimburse SELLER for an amount equal to the amount of such fees paid by the SELLER.

SELLER reserves the right to adjust pricing where (i) delivery is scheduled more than six (6) months from the date of order, (ii) specifications or scope of work differ from those originally quoted, or (iii) SELLER’s costs increase due to supplier price increases, material cost increases, transportation cost increases, or changes in applicable laws or regulations.

Payment

All orders are subject to prior credit approval.

Unless specified to the contrary in writing by SELLER, payment terms are net cash, payable without offset, in Canadian Dollars, 30 days from date of invoice.

If delivery is delayed by BUYER, payment shall be due on the date SELLER is prepared to make delivery. Delays in delivery or nonconformities in any installments delivered shall not relieve BUYER of its obligation to accept and pay for remaining installments. Overdue amounts shall bear interest at the rate of two percent (2%) per month (24% per annum) or the maximum rate permitted by law, whichever is less. BUYER shall be responsible for all costs of collection, including legal fees on a solicitor-client basis.

SELLER may suspend performance or withhold delivery in the event of non-payment or material breach by BUYER without liability.

Specifications

BUYER is responsible for providing SELLER with complete and unambiguous requirements. Regardless of end-user intentions, SELLER performance will be measured against project requirements provided by BUYER.

All requirements must be conveyed from BUYER to SELLER in writing.

Requirements shall be binding only if expressly accepted in writing by SELLER.

Changes

SELLER is not responsible for any changes requested by BUYER affecting the ordered scope of work unless such changes and resulting adjustments to affected provisions, including price, schedule, and guarantees are accepted by SELLER in writing prior to implementation of the changes.

In the event, that a purchase order received by the Seller does not match the quote, Seller reserves the right to re-quote.

SELLER may, at its expense, make such changes in the Equipment or Services as it deems necessary, in its sole discretion, to conform the Equipment or Services to the applicable specifications. SELLER must notify BUYER of all such changes.

If BUYER objects to any such changes, SELLER shall be relieved of its obligation to conform to the applicable specifications to the extent that conformance may be affected by such objection.

Delivery

All Equipment is delivered Ex-WORKS SELLER’s  facility unless otherwise stated.

If the scheduled delivery of Equipment is delayed by BUYER or by Force Majeure, SELLER may move the Equipment to storage for the account of and at the risk of BUYER whereupon it shall be deemed to be delivered. In the event the BUYER does not accept delivery on the agreed upon delivery date, a storage fee of 1% of the undelivered invoice amount will be assessed monthly, pro-rated weekly.

Shipping and delivery dates are contingent upon BUYER’s timely approvals and delivery by BUYER of any documentation required for SELLER’s performance hereunder.

Claims for shortages or other errors in delivery must be made in writing to SELLER within ten days of delivery. Equipment may not be returned except with the prior written consent of and subject to terms specified by SELLER. Claims for damage after delivery shall be made directly by BUYER with the common carrier.

Title & Risk of Loss

Notwithstanding any agreement with respect to delivery terms or payment of transportation charges, risk of loss or damage shall pass to BUYER upon delivery, regardless of title rights or ownership.

Inspection, Testing and Acceptance

Any inspection by BUYER of Equipment on SELLER’s premises shall be scheduled in advance to be performed during normal working hours.

In lieu of inspection by BUYER of Equipment on SELLER’s premises, BUYER may choose, with prior written consent of SELLER, to witness such inspection via streaming video.  BUYER agrees to pay SELLER an additional fee of $2,500 for such video-based inspection.

If the order provides for factory acceptance testing, SELLER shall notify BUYER at least fourteen (14) days prior to conducting such testing. Unless BUYER states specific objections in writing within ten (10) days after completion of factory acceptance testing, completion of the acceptance test constitutes BUYER’s factory acceptance of the Equipment and its authorization for shipment.

If the order provides for site acceptance testing, such testing will be performed by SELLER to verify that the Equipment has arrived at the shipment delivery site complete and in good operating condition. Completion of site acceptance testing constitutes full and final acceptance of the Equipment. If, through no fault of SELLER, acceptance testing is not completed within thirty (30) days after arrival of the Equipment at the shipment delivery site, the site acceptance test shall be deemed completed and the Equipment shall be deemed accepted.

Equipment and Services shall be deemed accepted unless BUYER provides written notice of specific defects within ten (10) days of delivery or completion.

Warranty

SELLER warrants that Equipment supplied shall be free from defects in material and workmanship for a period of twelve (12) months from delivery or installation, whichever occurs first. SELLER’s sole obligation under this warranty shall be, at its option, to repair or replace defective Equipment or re-perform defective Services. This warranty does not apply to damage resulting from misuse, improper installation, unauthorized modification, normal wear and tear, or failure to follow operating instructions.

Except as expressly provided herein, seller disclaims all other warranties, express or implied, including any implied warranties of merchantability or fitness for a particular purpose.

Limitation of Liability

In no event shall SELLER, its suppliers or subcontractors be liable for special, indirect, incidental or consequential damages, whether in contract, warranty, tort, negligence, strict liability or otherwise, including, but not limited to, loss of profits or revenue, loss of use of the Equipment or any associated equipment, cost of capital, cost of substitute equipment, facilities or services, downtime costs, delays, and claims of customers of the BUYER or other third parties for any damages. SELLER’s liability for any claim whether in contract, warranty, tort, negligence, strict liability, or otherwise for any loss or damage arising out of, connected with, or resulting from this Agreement or the performance or breach thereof, or from the design, manufacture, sale, delivery, resale, repair, replacement, installation, technical direction of installation, inspection, operation or use of any equipment covered by or furnished under this Agreement, or from any services rendered in connection therewith, shall in no case exceed one-half (1/2) of the purchase price allocable to the Equipment or part thereof or Services which gives rise to the claim.

All causes of action against SELLER arising out of or relating to this Agreement or the performance or breach hereof shall expire unless brought within one year of the time of accrual thereof.

In no event, regardless of cause, shall SELLER be liable for penalties or penalty clauses of any description or for indemnification of BUYER or others for costs, damages, or expenses arising out of or related to the Equipment and/or Services.

Laws and Regulations

SELLER does not assume any responsibility for compliance with federal, provincial or local laws and regulations, except as expressly set forth herein, and compliance with any laws and regulations relating to the operation or use of the Equipment or Software is the sole responsibility of the BUYER. All laws and regulations referenced herein shall be those in effect as of the Proposal date. In the event of any subsequent revisions or changes thereto, SELLER assumes no responsibility for compliance therewith. If BUYER desires a modification as a result of any such change or revision, it shall be treated as a change per Article 5.

Nothing contained herein shall be construed as imposing responsibility or liability upon SELLER for obtaining any permits, licenses, or approvals from any agency required in connection with the supply, installation, or operation of the Equipment.

This Agreement shall be governed by the laws of the Province of Newfoundland and Labrador, Canada.

BUYER agrees that all causes of action against SELLER under this Agreement shall be brought in the Province of Newfoundland and Labrador, Canada. If any provision hereof, partly or completely, shall be held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision or portion hereof and these terms shall be construed as if such invalid or unenforceable provision or portion thereof had never existed.

Software License

SELLER owns all rights in or has the right to sublicense all of the Software, if any, to be delivered to BUYER under this Agreement. As part of the sale made hereunder BUYER hereby obtains a limited license to use the Software, subject to the following: (i) The Software may be used only in conjunction with equipment specified by SELLER; (ii) The Software shall be kept strictly confidential; (iii) The Software shall not be copied, reverse engineered, or modified; (iv) The BUYER’s right to use the Software shall terminate immediately when the specified equipment is no longer used by the BUYER or when otherwise terminated, e.g. for breach, hereunder; and (v) the rights to use the Software are non-exclusive and non- transferable, except with SELLER’s prior written consent. Nothing in this Agreement shall be deemed to convey to BUYER any title to or ownership in the Software or the intellectual property contained therein in whole or in part, nor to designate the Software a “work made for hire” under the Copyright Act, nor to confer upon any person who is not a named party to this Agreement any right or remedy under or by reason of this Agreement.

BUYER agrees to all licensing terms and conditions provided by or related to purchased or third-party components including, but not limited to, Programmable Logic Controllers (PLC), control devices, communication devices, user interface devices, and testing or diagnostic equipment.

Inventions and Information

Unless otherwise agreed in writing by SELLER and BUYER, all right, title and interest in any inventions, developments, improvements or modifications of or for Equipment and Services shall remain with SELLER. Any design, manufacturing drawings or other information submitted to the BUYER remains the exclusive property of SELLER.

BUYER shall not, without SELLER’s prior written consent, copy or disclose such information to a third party. Such information shall be used solely for the operation or maintenance of the Equipment and not for any other purpose, including the duplication thereof in whole or in part.

Force Majeure

SELLER shall neither be liable for loss, damage, detention or delay nor be deemed to be in default for failure to perform when prevented from doing so by causes beyond its reasonable control including but not limited to acts of war (declared or undeclared), Acts of God, fire, strike, labor difficulties, acts or omissions of any governmental authority or of BUYER, compliance with government regulations, insurrection or riot, embargo, delays or shortages in transportation or inability to obtain necessary labor, materials, or manufacturing facilities from usual sources or from defects or delays in the performance of its suppliers or subcontractors due to any of the foregoing enumerated causes.

In the event of delay due to any such cause, the date of delivery will be extended by period equal to the delay plus a reasonable time to resume production, and the price will be adjusted to compensate SELLER for such delay.

Cancellation

BUYER may cancel an order only with SELLER’s prior written consent. In the event of cancellation, BUYER shall pay: (i) all costs incurred by SELLER to the date of cancellation; (ii) all committed costs and non-cancellable supplier charges; and (iii) a cancellation fee equal to twenty-five percent (25%) of the total order price.

Termination

No termination by BUYER for contractual default shall be effective unless SELLER shall have failed to initiate and pursue, with reasonable due diligence, correction of such specified default within fifteen (15) days after receipt by SELLER of BUYER’s written notice specifying such default.

SELLER may terminate this Agreement upon written notice if BUYER fails to make payment when due, becomes insolvent, or materially breaches these Terms and fails to cure such breach within fifteen (15) days of notice.

Assignment

Any assignment of this Agreement or of any rights or obligations under the Agreement without prior written consent of SELLER shall be void.

Resale

If BUYER resells any of the Equipment, the sale terms shall limit SELLER’s liability to the buyer to the same extent that SELLER’s liability to BUYER is limited hereunder.

Entire Agreement

This Agreement constitutes the entire agreement between SELLER and BUYER. There are no agreements, understandings, restrictions, warranties, or representations between SELLER and BUYER other than those set forth herein or herein provided.