Terms & Conditions
The following terms and conditions shall apply to the purchase and sale of any Product(s), materials, parts or other Product(s) (collectively, “Product(s)”) from KEYSTONE PUMPS LTD (“the Supplier”) and the performance of any installation, repair, advisory, consulting or other services (collectively, the “Services”) by KEYSTONE PUMPS LTD (“the Supplier”):
1. Purchase Order
The Buyer shall order the Product(s) through the issuance of a written purchase order signed by an authorized representative of the Buyer. Each purchase order shall identify the Product(s) the Buyer desires to purchase from the Supplier including the price of each Product, total purchase price, shipping instructions, a requested shipping date, “bill-to” and “ship-to” addresses, tax exempt certificates, if any, and any special instructions. The Buyer shall provide any additional information required to complete the purchase order upon request from the Supplier. Purchase orders may be submitted by email, facsimile, courier or hand delivery. The terms and conditions of this Agreement shall govern all purchase orders, except that purchase orders may include other terms and conditions which are consistent with the terms and conditions of this Agreement or which are mutually agreed to in writing by the Buyer and the Supplier.
The Supplier shall promptly acknowledge the receipt of purchase orders issued by the Buyer in accordance with this Agreement, and shall endeavor to accept or reject any purchase order (or any portion thereof) within five business days of receipt. If the Supplier rejects any purchase order or any part thereof, it shall notify the Buyer of the commercial reasons for the rejection. The Supplier shall not be liable to the Buyer or to any other person for the rejection in whole or part of any purchase order. If the Supplier accepts a purchase order or part thereof, the Supplier shall provide the Buyer with an estimated shipping date for the accepted Product(s). No purchase order will be considered accepted by the Supplier until written communication of acceptance is delivered by the Supplier to the Buyer.
In the event of any conflict or inconsistency between the terms and conditions of sale herein and the terms and conditions contained in the Buyer’s order or in any other form issued by the Buyer, whether or not any such form has been acknowledged or accepted by the Supplier, the Supplier’s terms and conditions herein shall prevail. No waiver, alteration or modification of these terms and conditions shall be binding upon The Supplier unless made in writing and signed by a duly authorized representative of the Supplier.
2. Materials and Compatibility with Buyer’s System or Process
Quotations, and equipment recommendations including, but not limited to, materials of construction, equipment sizing and compatibility of the Product(s) with the Buyer’s electrical system, piping system and processes are based on information supplied by the Buyer. The Buyer is responsible for final confirmation of the pump size, pump materials of construction and compatibility of the Product(s) with the Buyer’s systems or process. By placing an order further to a quotation, the Buyer acknowledges and agrees that it has confirmed the pumps metallurgical suitability, electrical compatibility and the overall compatibility of the Buyer’s system and process with the Product(s).
The Supplier expressly disclaims any warranty that the Product(s) will be compatible with the Buyer’s operating system or process, and that the construction materials are suitable for the Buyer’s purposes. In the event that the Product(s) are not compatible with the Buyer’s operating system or process, and/or that the construction materials are not suitable, the Buyer shall be responsible for the cost of all changes in the Product(s), and if the Buyer’s order is cancelled, the Supplier shall be reimbursed for all costs and expenses incurred and reasonable profit for performance executed prior to the date of such termination.
Amounts payable to the Supplier under this Agreement are exclusive of all taxes, duties and levies of any kind whatsoever. Without limiting the generality of the foregoing, the Buyer shall be solely responsible for the payment of any and all import or customs duties, value-added taxes, withholding taxes, income tax and any other tax of any kind levied by any governmental, regional, local or other authorities in connection with any payments made by the Buyer to the Supplier hereunder, other than taxes imposed on the Supplier income. Should any such taxes be applicable, they shall be paid by the Buyer in addition to the purchase price for the Product(s) and any other amounts payable to the Supplier under this Agreement, in accordance with applicable laws and regulations. If the Supplier effects payment of any such taxes, duties or levies, the Buyer shall reimburse the Supplier therefor within 30 days of the date of invoice. If any such payment or reimbursement is not enforceable in the country in which the payment is due, or if the Buyer is required to withhold amounts for submission to foreign authorities, the Supplier shall have the right to increase the total price owing by the Buyer by the amount of the tax, duty or levy.
Payment Terms will be negotiated at the time of order.
Interest will accrue at the annual rate of 24% per annum to be compounded monthly on the balance due and owing but will not exceed the maximum permitted by law.
Should the Buyer for any reason default in payments due under this Agreement, the Buyer agrees to pay all collection costs and indemnify the Supplier for all solicitor’s fees arising from the default in payment.
Unless shipping instructions accompany each order and are accepted by the Supplier, the manner of shipping is at the discretion of the Supplier. The Supplier’s responsibility for the Product(s) ceases when they pass into the hands of the carrier, at which time the Buyer assumes the risk for the Product(s).
6. Damaged Product(s)
The Supplier’s Product(s) are carefully inspected and checked prior to shipment for any damage. The Buyer assumes all responsibility for risk relating to loss or damage of Product(s) once the Product(s) pass into the hands of the carrier.
The Supplier warrants its Product(s) will be free from defects in workmanship and materials such warranties to extend for a period commencing on the date of the original shipment from the Supplier to the Buyer and ending on the earlier of: (i) eighteen (18) months following the date of shipment from the Suppler to the Buyer; and (ii) twelve (12) months following the date of installation of the Product(s) by the Customer.
No claim will be allowed for expenses incurred in installation or use. No other express or implied warranties shall apply to the Product(s). The Supplier is not responsible for delayed shipments, other loss beyond the Supplier’s control, or incidental or consequential damages of any kind, including, but not limited to, lost profits, loss of use of production facilities or equipment, expenses or damages incurred in reliance on the Product’s performance or lost Production, arising in connection with the use of the Products, whether incurred by the Buyer, the Customer or any other person. The Supplier is not responsible for any costs, expenses, damages, losses or any other liability incurred by the Buyer or the Customer in excess of the purchase price paid for the Product(s) and the Supplier will not be responsible for any failure of a part of a Product(s) to fit properly due to deterioration of or modification to the Buyer’s or Customer’s equipment for which such parts are furnished. The Supplier makes no warranty that the Product(s) will comply with the performance of the Buyer’s or Customer’s existing equipment, process or system. The Supplier reserves the right to furnish substitutes for material not available or whose use is restricted. All warranties provided by the Supplier hereunder shall be void if the Buyer or the Customer: (a) uses any non-OEM components with the Product(s); (b) uses any non-OEM pump spare parts with the Product(s); (c) makes any non-approved modifications to the Product(s); or (d) fails to install a moisture detection relay with respect to the Product(s); or (e) fails to connect the thermal overload protection wiring.
During the warranty period, the Supplier will, at its option, adjust, replace, repair defective part(s) contained in the Product(s) on the return of such defective part(s) and after inspection by and to the satisfaction of the Supplier.
All costs and expenses for the removal of a Product(s) to be repaired or replaced and its delivery to the Supplier or the repair facility designated by the Supplier shall be borne by the Buyer. All costs and expenses of returning the repaired or replaced Product(s) to the Buyer, including, but not limited to, the installation of such Product(s), shall be borne by the Buyer. This warranty does not apply to Product(s) that have been physically or environmentally abused or Product(s) that have not been stored, installed, maintained or operated in accordance with good engineering practices and the instructions contained in the installation, operation and maintenance manual. THIS WARRANTY IS INVALID FOR ANY PRODUCT(S) THAT ARE TRANSPORTED OUTSIDE THE TERRITORY OTHER THAN FOR THE PURPOSE OF SHIPMENT FROM THE SUPPLIER’S SHIPPING POINT TO THE BUYER’S DELIVERY ADDRESS INSIDE THE TERRITORY.
EXCEPT AS EXPRESSLY PROVIDED HEREIN THERE ARE NO WARRANTIES, CONDITIONS OR REPRESENTATIONS, EXPRESS OR IMPLIED BY STATUTE, USAGE, CUSTOM OF THE TRADE OR OTHERWISE WITH RESPECT TO THE PRODUCT(S) PROVIDED BY THE SUPPLIER HEREUNDER, INCLUDING BUT NOT LIMITED TO, WARRANTIES OR REPRESENTATIONS OF WORKMANSHIP, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR DURABILITY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE SUPPLIER DOES NOT WARRANT THAT THE PRODUCT(S) WILL MEET ALL OF THE BUYER’S OR A CUSTOMER’S NEEDS. BOTH PARTIES ACKNOWLEDGE THAT DUE TO THE NATURE OF THE PRODUCT(S), THE OPERATION OF THE PRODUCT(S) IS NOT WARRANTED TO BE ERROR FREE. IN NO EVENT WILL THE THE SUPPPLIER BE LIABLE IN CONTRACT, TORT, OR FOR ANY OTHER REASON AS A RESULT OF THE LOSS OF USE, FAILURE OR INTERRUPTION IN THE OPERATION OF THE PRODUCT(S), OR FOR LOST PROFITS.
The Supplier reserves the right to change the design, construction or material of any part of the Product(s) without incurring any obligation to install such changes to Product(s) previously delivered to the Buyer.
8. Exclusivity of Warranties
The Supplier shall incur no liability under this warranty if:
- the allegedly defective Product(s) are not returned prepaid to the Supplier or a repair facility designated by the Supplier within 30 days of the discovery of the alleged defect; or
- the tests of the Supplier or the repair facility designated by the Supplier disclose that the alleged defect is not due to defects in materials or workmanship caused by the Supplier Without limiting the generality of the foregoing, the Supplier shall have no liability in respect of any Product(s) malfunction resulting from: (i) a Force Majeure Event; (ii) misuse of the Product(s) by the Buyer or any third party; (iii) use or attempted use of the Product(s) under improper environmental conditions; (iv) unauthorized modifications or repairs; or (v) use of the Product(s) with hardware or software not approved by the Supplier.
9. Limitation of Liability
IN NO EVENT WHATSOEVER, REGARDLESS OF THE FORM OR CAUSE OF ACTION WHETHER IN CONTRACT OR TORT OR THE NUMBER OF CLAIMS ASSERTED, AND WHETHER IN RESPECT OF A BREACH OR DEFAULT IN THE NATURE OF A BREACH OF CONDITION OR FUNDAMENTAL TERM, OR OF A FUNDAMENTAL BREACH, OR AS A RESULT OF NEGLIGENCE, SHALL THE SUPPLIER, ITS EMPLOYEES’, DIRECTORS’, OFFICERS’ AND AGENTS’ TOTAL COLLECTIVE LIABILITY FOR ALL CLAIMS ARISING UNDER OR IN RELATION TO THIS AGREEMENT, OR THE USE OR INABILITY TO USE THE PRODUCT(S), EXCEED, IN THE AGGREGATE, AN AMOUNT EQUAL TO THE PRICE ACTUALLY PAID BY OR AGREED TO BE PAID BY THE BUYER TO THE SUPPLIER FOR THE PRODUCT(S)(S) GIVING RISE TO THE CLAIM.
TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER THE SUPPLIER NOR ITS EMPLOYEES, OFFICERS, DIRECTORS OR AGENTS SHALL IN ANY CASE BE LIABLE, AND HEREBY EXPRESSLY EXCLUDE ANY INDIRECT, SPECIAL, ECONOMIC, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE, BUSINESS, OR DATA, COSTS OF COVER, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCT(S), OR EQUIPMENT DOWNTIME ARISING FROM OR RELATING TO THIS AGREEMENT (INCLUDING THE PROVISION OF SUPPORT AND MAINTENANCE SERVICES) OR THE USE OR INABILITY TO USE THE PRODUCT(S) OR OTHER DELIVERABLES, REGARDLESS OF THE FORM OF ACTION, AND EVEN IF THE SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THIS DISCLAIMER OF LIABILITY WILL NOT BE AFFECTED IF ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
ANY PROVISIONS IN THIS AGREEMENT LIMITING THE LIABILITY OF THE SUPPLIER’S EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS SHALL BE DEEMED TO BE TRUST PROVISIONS FOR THE BENEFIT OF SUCH EMPLOYEES, OFFICERS, DIRECTORS AND AGENTS, AND SHALL BE ENFORCEABLE BY SUCH AS TRUST BENEFICIARIES.
10. Cancellation or Modification
The Buyer may cancel or modify a shipment of any part thereof only upon the Supplier receiving written notice from the Buyer, the Supplier approving the cancelation or modification(s) and upon agreement and payment to the Supplier for reasonable and proper cancellation or modification charges based upon expenses already incurred and commitments made by the Supplier, including, without limitation, any labor completed, material(s) purchased, service(s) performed and also including the Supplier’s usual overhead and reasonable profit and cancellation charges from the Supplier’s Subcontractors and Vendors.
11. Return of Product(s)
No credit or refund will be permitted for Product(s) returned unless the Supplier’s prior written permission has been obtained. If accepted, returned Product(s) may be subject to a handling or restocking charge.
12. Back Orders
The Buyer agrees that if it has ordered items which are unavailable at the time of the placement of the order, the Supplier will ship them as soon as they are available or at a later time.
If there is any disagreement, dispute or controversy (a “Dispute”) between the parties with respect to any matter arising under this Agreement or the construction of this Agreement, then the Dispute shall be referred to and finally resolved by arbitration under the rules of the Arbitration Act, R.S.B.C. 1996, c. 55 by a sole arbitrator. The award of the arbitrator shall be final and binding upon each of the parties and shall not be subject to appeal or judicial review.
14. Governing Law
This Agreement, and all transactions contemplated hereby, shall be exclusively governed by, construed and enforced in accordance with the laws of the Province of British Columbia, including the federal laws of Canada applicable thereto. The parties hereto agree to submit to the personal jurisdiction and venue of a court of subject matter jurisdiction located in British Columbia.
15. Intellectual Property
For the purposes of this Agreement, “Intellectual Property” shall include all hardware, software, processes, designs, manuals, technology, patents, copyrighted material, trade secrets, trademarks, service marks, trade names, and other proprietary information and materials, and all applications and registrations therefore, provided or made available by the Supplier under or in connection with this Agreement. The Buyer hereby acknowledges that the Supplier is the exclusive owner or authorized licensee of all rights, title and interest in and to the Intellectual Property in the Product(s), and that the Buyer shall acquire no rights whatsoever in or to any of the Intellectual Property in the Product(s). The Buyer shall not, and shall not permit any other party to, take any action that may adversely affect or impair the Supplier’s rights, title or interest in or to its Intellectual Property. Without limiting the generality of the foregoing, the Buyer shall not copy, modify, translate, reverse engineer, decompile or create derivative works of any Product(s) or other Intellectual Property, and shall not alter, deface or add to any patent notice, copyright notice, trademark, trade name, serial number, model or brand name which the Supplier may include in, attach or affix to the Product(s) or related materials.
If any provision of this Agreement is determined to be invalid, void or unenforceable, in whole or in part, such invalidity, voidance or unenforceability shall attach only to such provision or part thereof, and the remaining part of such provision and all other provisions thereof shall continue in full force and effect.
This Agreement applies only to this order. Prospective orders may be subject to revised terms and conditions. It is the Buyer’s responsibility to request and review the Supplier’s current terms and conditions in respect of prospective orders.
18. Entire Agreement Clause
This Agreement constitutes the entire agreement between the parties, and is subject to no other oral or written proposals, agreements, implied terms, agreements through course of conduct, conditions precedent or understandings whatsoever.
End of General Terms & Conditions of Sale