Terms and conditions
1.1 These Terms and Conditions of Sale (the “Terms”) and the corresponding sales order (an “Order”) govern the purchase and sale of products and services (the “Products”) by Innosys Power Inc. and/or its subsidiaries and affiliates (“Supplier”) to you (“Buyer”). The Terms and Order (the “Agreement”) constitute the entire agreement between Supplier and Buyer with respect to the purchase and sale of Products, and the Agreement supersedes all other understandings, agreements and communications (including bids and quotations) between the parties regarding the purchase and sale of Products.
1.2 Purchase orders provided by Buyer are not accepted by Supplier if and until an Order is generated by Supplier. Supplier expressly objects to and rejects any terms and conditions that are additional to these Terms and provided by Buyer to Supplier, unless any such additional terms and conditions are expressly agreed upon in writing by the parties. No amendment, modification or supplement to the Agreement shall be binding unless it is in writing and expressly agreed to by both parties hereto.
1.3 In the event of any conflict between the provisions of these Terms and the Order, the Order shall govern. In the event of any conflict between the provisions of this Agreement and any other applicable agreements between the parties, this Agreement shall govern unless any such other applicable agreement expressly and unequivocally states that all or a part of such other applicable agreement takes precedence over this Agreement, and then such other applicable agreement shall only govern to the extent of such express and unequivocal statement.
2. Prices; PAYMENT TERMS
2.1 Distributor’s standard list prices are subject to change without notice. Prices listed in Supplier quotations expire and become invalid if not accepted within 90 days of the date of issuance, unless otherwise noted by Supplier in writing.
2.2 All prices are stated in Canadian dollars. Applicable taxes shall be included in Supplier’s invoice and be payable by Buyer in accordance with applicable law.
2.3 Unless otherwise agreed upon in writing by the parties, payment terms are net 30 days from the date of the invoice. Notwithstanding the foregoing, all Orders are subject to Supplier’s continuing approval of Buyer’s credit. If Buyer’s credit is not approved or becomes unsatisfactory to Supplier, then Supplier, in its sole and absolute discretion, may suspend or cancel performance, or require different payment terms, including but not limited to cash on delivery or in advance of shipment. In addition, Supplier may in its sole and absolute discretion require an advance deposit of up to 100% of Supplier’s selling price for any specially manufactured goods ordered by Buyer hereunder. Supplier may, in its sole and absolute discretion, apply Buyer’s payment against any open charges.
2.4 Past due accounts bear interest at the lesser of 2.5% per month or the maximum rate permitted by applicable law.
2.5 If Buyer fails to comply with these Terms (including by failing to make timely payment), Supplier may terminate or restrict any Order immediately upon notice to Buyer. Buyer certifies that it is solvent and that it will advise Supplier immediately if it becomes insolvent. Buyer’s failure to make timely payment to Supplier shall be deemed an event of material default. In addition to the right of termination, Supplier reserves all rights at law and equity in the event of a default, including but not limited to charging interest during any period of nonpayment or late payment, and the exercise of any lien rights or security interest provided by applicable law. It is the clear and express intention of the parties that no purported unconditional waiver or release of lien rights or security interests shall be valid, and all such lien and security waivers or releases shall be deemed to be null and void, prior to receipt of the full amount due to Supplier.
3. ORDER CANCELLATION
3.1 Cancellation of Orders by Buyer must be made in writing and received by Supplier prior to shipment of Order (“Acceptable Cancellations”). Buyer may not cancel the Order after shipment, and verbal cancellations will not be accepted. Buyer shall be charged a restock fee for any Acceptable Cancellations.
3.2 Supplier reserves the right to cancel, without liability, any Orders that are not scheduled for delivery by Buyer within 9 months of the Order date. Supplier may also cancel any Orders on  days’ written notice to Buyer, without liability and at any time, if Supplier, in its sole and exclusive discretion, determines that the fulfillment of such Order would be commercially unfeasible.
4. Delivery; SHIPMENT; PASSING OF RISK
4.1 Unless otherwise agreed upon by the parties, delivery shall be FOB Origin, Freight Collect. Title and risk of loss will pass to Buyer at the FOB point. All responsibility and costs of shipping and delivery beyond the applicable FOB point will be borne by Buyer.
4.2 Partial shipments are permitted at Supplier’s sole and absolute discretion.
4.3 Should an order be held or stored beyond the agreed-upon delivery date at Buyer’s request, Supplier may, at its option, require Buyer to reimburse Supplier for any and all expenses and costs incident to such delay.
4.4 If Buyer fails to accept delivery of any Products from a carrier, Buyer shall be responsible for any expenses incurred by Supplier in connection with such failure.
4.5 Supplier will not be held responsible for damaged goods delivered in good condition to the carrier. Buyer shall make all claims for loss and damage to the common carrier.
4.6 No agreement to any delivery date or period shall be valid, and Supplier shall not be deemed to have agreed to any delivery date or period, unless in each case Supplier has expressly agreed to the delivery date or period in writing. In all cases, delivery by Supplier shall be deemed to occur upon delivery of the Products to a carrier for shipment to Buyer or on notification to Buyer of readiness to ship if shipment of the Products cannot occur through no fault of Supplier. Any agreed upon delivery date or period shall be automatically extended by any period of time during which Buyer fails to comply with these Terms.
5. RETURNS; DEFECTS; SHORTAGE OF PRODUCTS
5.1 No Products may be returned to Supplier without Supplier’s prior written authorization. This written authorization will be issued at the discretion of Supplier and must be requested by Buyer within 90 days of the original delivery date (“Return Authorization”). Non-defective materials must be in sealed original carton. In no cases will Supplier provide Return Authorization for any Products that have already been installed by Supplier.
5.2 All returns will be subject to a minimum 25% handling and factory inspection charge, except on Products considered by the manufacturer to be defective in workmanship and materials. Minimum value for Return Authorization is $250.
5.3 Buyer must inspect the Products within 15 days of delivery. All claims for shortage of Products or for loss or damage to Products or defects, in any such case as to which Supplier has the risk of loss, will be waived unless Buyer, within 15 days of becoming aware of any short or damaged shipment or defect, gives Supplier written notice fully describing the alleged shortage or damage or defect.
5.4 The delivery of Products claimed to be defective shall be returned to Supplier for examination in their original or equivalent packaging, and only after Return Authorization has been granted.
6. Warranty; LIMITATION OF LIABILITY; INDEMNIFICATION
6.1 As a distributor and not a manufacturer, Supplier warrants that all Products furnished by Supplier will be new and that Supplier has the authority to sell such Products. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, REPRESENTATIONS AND CONDITIONS, ORAL, EXPRESS, IMPLIED, LEGAL OR STATUTORY, INCLUDING ANY WARRANTY OR CONDITION OF MERCHANTABILITY, QUALITY, DURABILITY, TITLE OR FITNESS FOR A PARTICULAR PURPOSE.
6.2 Supplier will use commercially reasonable efforts to pass through to Buyer any manufacturer or other warranties on all materials and equipment furnished by Supplier. Supplier will use commercially reasonable efforts to assist Buyer with warranty claims against the manufacturer.
6.3 Buyer is solely responsible for determining their Product needs from Supplier. Supplier is not responsible for, and specifically disclaims any and all liability in relation to, inaccuracies or other issues with Buyer’s configurations or counts.
6.4 Except to the extent specifically and expressly provided in these Terms, Supplier makes no representations or warranties of any kind, express or implied, with respect to the Products or other subject matter of an Order, and Supplier specifically disclaims and waives all other representations, warranties and conditions.
6.5 If Supplier has caused a defect in the Products (as opposed to a manufacturer’s defect), Supplier’s sole and exclusive obligation for Products purchased by Buyer that prove to be defective is replacement, repair of such materials or refund of the purchase price, at Supplier’s sole and absolute discretion. Repairs are limited to repairing the Products and not removing, demolishing, installing, replacing or other related Product costs.
6.6 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SUPPLIER’S LIABILITY UNDER THE AGREEMENT EXCEED THE AGGREGATE PRICE INVOICED FOR ANY ORDERS HEREUNDER , AND SUPPLIER WILL NOT BE LIABLE, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHER GROUNDS FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PENAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, LOSS OF GOODWILL, COST OF SUBSTITUTE PRODUCTS, FACILITIES OR SERVICES, DOWNTIME COSTS, DELAY COSTS, OR CLAIMS OF CUSTOMERS OF BUYER. The term “consequential damages” includes, but is not limited to, cost for labor, loss of anticipated profits, loss of use, loss of revenue, and cost of capital.
6.7 Buyer will indemnify, defend, and hold Supplier, its officers, directors, employees, and agents harmless from any and all costs (including reasonable lawyers’ and accountants’ fees and expenses), liability, and damages resulting from or related to any third party (including Buyer’s employees, subcontractors, affiliates, or customers) claim, complaint, and/or judgment arising from Buyer’s use of any goods furnished hereunder, as well as any negligent, intentional, or tortious act or omission of Buyer or any material breach by Buyer of these Terms, except to the extent caused by Supplier’s gross negligence.
7. FORCE MAJEURE
7.1 Supplier will not be liable for any failure or delay in performing its obligations under the Agreement during any period in which such performance is prevented or delayed by causes beyond its reasonable control, including without limitation, an act of God; flood or other severe weather; pandemic (including but not limited to the COVID-19 pandemic); epidemic; war; embargo; fire or other casualty; any act of terrorism or sabotage; a civil riot; transportation disruptions; strikes or labor shortages; scarcity of product or allocation by the manufacturers; breakdown of plant or machinery; and/or non-performance by manufacturers or suppliers to Suppler (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the time for Supplier’s performance will be extended reasonably and the parties will adjust all affected dates accordingly.
8.1 Neither party shall assign, transfer, delegate or subcontract any of its rights or obligations under these Terms or any Order without the express prior written consent of the other party. Any purported assignment or delegation in violation of this provision shall be null and void. No assignment or delegation shall relieve such assigning party of any of its obligations hereunder.
8.2 The relationship between the parties is that of independent contractors. Nothing contained in these Terms or an Order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
8.3 The following sections of the Terms will survive termination, cancellation, and completed performance of the Agreement: Sections 6, 7 and 8.
8.4 These Terms and the Order shall be governed by and construed in accordance with the laws of the Province of Ontario and the parties agree and consent to the exclusive jurisdiction of the courts located in the Province of Ontario to resolve any dispute arising out of the Terms and Order.
8.5 The invalidity or unenforceability of all or part of these Terms will not affect the validity or enforceability of the other terms. The parties agree to replace any void or unenforceable term with a new term that achieves substantially the same practical and economic effect and is valid and enforceable. Supplier may delay or waive enforcement of any of its rights under these Terms or applicable law without losing the delayed or waived right or any other right.