Momentum Materials Terms & Conditions of Sale
GOVERNING TERMS
All products, materials, components, goods, commodities, software, technology and any other items (the “Products”) and services offered for sale by Momentum Materials Solutions Corp. and its affiliates and subsidiaries (collectively, “Momentum Materials”) are sold subject to these terms and conditions of sale (these “Terms and Conditions”) . These Terms and Conditions shall apply to the sale of the Products and/or services described in the Momentum Materials Quotation, Sales Order, Invoice, or other contract documentation to which these Terms and Conditions are attached or incorporated by reference. Except as expressly agreed by an authorized representative of Momentum Materials in writing, no other terms and conditions, including any terms and conditions attached to, or contained within, Buyer’s request for quotation, acknowledgment, purchase order or other contract documentation shall apply. Buyer’s acceptance of the Products or services delivered by Momentum Materials shall constitute an affirmation by Buyer that these Terms and Conditions govern the purchase and sale of the Products or services. THESE TERMS AND CONDITIONS SHALL SUPERSEDE ANY ADDITIONAL, DIFFERENT OR CONFLICTING TERMS PROPOSED BY BUYER OR CONTAINED ON BUYER’S PURCHASE ORDER OR ANY DOCUMENT OR INSTRUMENT SUBMITTED BY BUYER.
PRICES, TAXES AND PAYMENT
All prices are firm unless otherwise agreed to in writing. Momentum Materials reserves the right to change the prices and specifications of its Products at any time without notice. Any tax, duty, custom or other fee of any nature imposed upon this transaction by any federal, provincial or local governmental authority shall be paid by Buyer in addition to the price quoted or invoiced. In the event Momentum Materials is required to prepay any such tax, Buyer will reimburse Momentum Materials. Payment terms shall be net 30 days after shipment by Momentum Materials. An interest charge equal to 1 1/2% per month (18% per year) will be added to invoices outstanding beyond 30 days after shipment. In addition, Momentum Materials reserves the right to require pre-paid payment terms from any Buyer whose account is overdue for a period of more than 60 days or who has an unsatisfactory credit or payment record. Momentum Materials may also refuse to sell to any person until overdue accounts are paid in full. Buyer hereby grants to Momentum Materials a purchase money security interest in the Products sold to Buyer and the proceeds thereof in the amount of the purchase price until such purchase price is indefeasibly paid in cash in full. Buyer hereby authorizes Momentum Materials to file such financing statements and other instruments that Momentum Materials desires to perfect, protect or enforce Momentum Materials’ security interest.
DELIVERY AND SHIPMENT
Momentum Materials will make every effort to ship the Products or provide the services hereunder in accordance with the requested delivery date, provided that Momentum Materials accepts no liability for any losses or for general, special or consequential damages arising out of delays in delivery. Momentum Materials may make partial deliveries. All partial deliveries will be separately invoiced by Momentum Materials and shall be paid for when due by Buyer regardless of the timing of any subsequent delivery. Any delay in delivery of any partial installment shall not relieve Buyer of its obligation to accept remaining deliveries. All
shipment costs shall be paid by Buyer, and if prepaid by Momentum Materials, the amount thereof shall be reimbursed to Momentum Materials. Any and all claims for loss or damage to the Products in transit should be made directly to the carrier and not to Momentum Materials.
TITLE
Title to the Products shall remain with Momentum Material until the occurrence of the following events: a) when the point of origin of the shipment is within the country of destination, upon the shipment of the Products from the Momentum Materials facility; b) when the point of origin of the shipment is not within the country of destination, upon the arrival of the Products at the Port of Entry of the destination country.
RISK OF LOSS
The risk of loss or damage to the Products shall be assumed by Buyer upon the occurrence of the following events: a) when the point of origin of the shipment is within the country of destination, upon the shipment of the Products from the Momentum Materials facility; b) when the point of origin of the shipment is not within the country of destination, upon the arrival of the Products at the Port of Entry of the destination country.
INSPECTION
Buyer shall be responsible for inspecting all Products shipped hereunder prior to acceptance, provided, that if, Buyer shall not have given Momentum Materials written notice of rejection within 30 days following shipment to Buyer, the Products shall be deemed to have been accepted by Buyer.
DISCLAIMER OF EXPRESS AND IMPLIED WARRANTIES
The Products shall be covered by the applicable Momentum Materials standard warranty. NO OTHER EXPRESS OR IMPLIED WARRANTY IS MADE WITH RESPECT TO THE PRODUCTS. MOMENTUM MATERIALS EXPRESSLY EXCLUDES THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. Any model or sample furnished to the Buyer is merely illustrative of the general type and quality of goods and does not represent that the Products will conform to the model or sample. Buyer’s remedies under Momentum Materials’ warranty shall be limited to repair or replacement of the Product or component thereof which failed to conform to Momentum Materials’ warranty.
RETURNED PRODUCTS
No Products shipped under these Terms and Conditions may be returned without the express prior authorization of Momentum Materials. All returns of Products are subject to a restocking charge. No returns will be authorized after 60 days following shipment to Buyer.
TECHNICAL ADVICE
Momentum Materials may, at Buyer’s request, furnish technical assistance, advice and information with respect to the Products, if and to the extent that such advice, assistance and information is conveniently available. It is expressly agreed that there is no obligation to provide such information which is provided without charge at the Buyer’s risk, and which is provided subject to the disclaimers set forth in paragraph 7.
AGENTS, ETC.
No agent, employee or other representative has the right to modify or expand Momentum Materials’ standard warranty applicable to the Product(s) or to make any representations as to the Product(s) other than those set forth in Momentum Materials’ Product literature and any such affirmation, representation or warranty, if made, should not be relied upon by Buyer and shall not form a part of these Terms and Conditions.
EXPORTS
Buyer acknowledges that Products sold by Momentum Materials under these Terms and Conditions may be subject to Canada export control laws and regulations. Buyer agrees that it will not transfer, export or reexport the Products sold hereunder except in compliance with all applicable Canada export laws and regulations. Each party shall obtain, at its own expense, licenses, export and import documents, and other approvals as are necessary for each party to fulfill its obligations under these Terms and Conditions. As appropriate, Momentum Materials may inform Buyer of applicable export license terms and conditions; Buyer agrees to abide by such terms and conditions. Momentum Materials may terminate, cancel or otherwise be excused from performing any obligations it may have under these Terms and Conditions if (1) an export license or other approval required to be obtained by Momentum Materials is not approved by the Canada government, (2) an existing license or approval is revoked for any reason by the Canada government, and/or (3) the Canada government changes the applicable export control laws or regulations thereby making it impermissible for Momentum Materials to provide the subject items.
EQUAL EMPLOYMENT OPPORTUNITY
Momentum Materials is an Equal Opportunity Employer. It does not discriminate in any phase of the employment process against any person because of race, color, creed, religion, national origin, sex, age, veteran or handicapped status.
MODIFICATIONS, WAIVER, TERMINATION
These Terms and Conditions may be modified, and any breach hereunder may be waived, only by a writing signed by the party against whom enforcement thereof is sought. Momentum Materials reserves the right, among other remedies, either to terminate or suspend further deliveries under these Terms and Conditions in the event Buyer fails to pay for any shipment or release when the same is due in accordance with Momentum Materials invoice.
GOVERNING LAW
These Terms and Conditions shall be governed by and construed in accordance with the laws (other than those relating to conflict of laws questions) of Alberta, Canada.
VENUE
The parties agree that any and all disputes or controversies arising under, out of or in connection with these Terms and Conditions or the sale or performance of the Products or services shall be brought exclusively in the courts of Calgary, Alberta, Canada, to whose jurisdiction for such purposes Momentum Materials and Buyer each hereby irrevocably consent and submit.
LIMITATION OF LIABILITY
IN NO EVENT SHALL MOMENTUM MATERIALS (INCLUDING ITS AFFILIATES AND SUBSIDIARIES) BE LIABLE FOR ANTICIPATED OR LOST PROFITS OR FOR SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES. MOMENTUM MATERIALS’ TOTAL LIABILITY ON ANY CLAIM OF ANY KIND FOR ANY LOSS OR DAMAGE WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH OR RESULTING FROM THESE TERMS AND CONDITIONS OR FROM THE PERFORMANCE OR BREACH THEREOF SHALL IN NO CASE EXCEED THE PRICE ALLOCABLE TO THE PRODUCTS OR SERVICES OR UNITS THEREOF WHICH GIVES RISE TO THE CLAIM.
ASSIGNMENT
Buyer shall not assign its rights or its obligations under these Terms and Conditions without the written consent of Momentum Materials.
CANCELLATION PRIOR TO SHIPMENT
In the event Buyer requests that an order for Products or services which it has placed with Momentum Materials be cancelled prior to shipment, and with which request Momentum Materials agrees, Buyer shall be liable to Momentum Materials for all Products already manufactured at the time of notice of cancellation and all costs incurred by Momentum Materials as a result of such cancellation, including but not limited to, cancellation costs to suppliers and unreimbursed advances on Products, if any, together with any specifically identifiable incidental and consequential expenses.
PERFORMANCE
Unless otherwise agreed to in writing, Momentum Materials reserves the right to make design changes, which Momentum Materials believes will improve its Products. Momentum Materials may also satisfy customer purchase orders by shipping 90-110% of ordered quantities for nonstandard Products depending on actual yield from such nonstandard Product runs. Momentum Materials shall only charge Buyer for actual quantities shipped. Momentum Materials’ performance shall be excused in the event of strikes, accidents, fires, unavailability of materials and all other causes beyond the control of Momentum Materials. The quantity
shipped during any month may be limited by Momentum Materials to either: (a) the average of the monthly quantities purchased by Buyer for the preceding month(s) or (b) the maximum quantity to be purchased divided by the number of months in the period of the contract documentation.
SALE CONVEYS LIMITED LICENSE; NO REVERSE ENGINEERING
Buyer acknowledges that the Products, components of the Products, and methods of making and using the Products are protected by intellectual property rights owned by Momentum Materials. Momentum Materials is and shall remain the sole and exclusive owner of any software and any intellectual property incorporated into or embodied in the Products at all times. The Products are offered for sale and sold by Momentum Materials hereunder expressly subject to the condition that such sale does not convey any license, expressly or by implication, estoppel or otherwise, under any intellectual property rights of Momentum Materials with respect to any invention of Momentum Materials or any third party, patented or not patented, embodied in Momentum Materials’ Products, processes, sales literature or manufacturing operations; except that Momentum Materials hereby grants to Buyer, under Momentum Materials’ intellectual property rights, a limited, non-exclusive, non-transferable, non-sublicensable, non-assignable license to use such Momentum Materials intellectual property solely as necessary to use the Products in Buyer’s business. Seller expressly reserves all of its rights under such intellectual property rights, and no manufacture to Buyer’s specifications grants any ownership by or conveyance to Buyer of or to any property right in any invention of Momentum Materials. Buyer shall not attempt to reverse engineer or otherwise discover Momentum Materials’ intellectual property, patentable, patented or nonpatented inventions, trade secrets, secret processes or other confidential information embodied or contained in Momentum Materials’ Products.
TOOL OWNERSHIP
All tools, dies, and patterns produced by or at the request of Momentum Materials, or otherwise utilized by Momentum Materials in the production of any Products sold to Buyer, shall remain the exclusive property of Momentum Materials. Momentum Materials reserves the right to advertise and/or sell any of the foregoing items and any of its Products produced therewith, unless otherwise specifically agreed to in writing by an authorized representative of Momentum Materials.
GENERAL PROVISIONS
The failure of Momentum Materials to enforce at any time any of the provisions of these Terms and Conditions, to exercise any election or option provided herein, or to require at any time performance by Buyer of any of the provisions herewith shall in no way be construed to be a waiver of any such provisions, or the right of Momentum Materials thereafter to enforce each and every such provision. These Terms and Conditions contain the complete and exclusive statement of the agreement between the parties in connection with the subject Products and/or services and supersedes any previous understandings, communications, commitments, or agreements, oral or written. Buyer warrants that it has not offered or given and will not offer or give to any employee, agent or representative of Momentum Materials any gratuity with a view toward influencing such person with respect to the terms, conditions or performance of these Terms and Conditions or any contracts with Momentum Materials. Momentum Materials and Buyer are independent contractors; neither is an agent or employee of the other or has any authority to assume or create any obligation or liability of any kind on behalf of the other. Any provision of these Terms and Conditions that is invalid or unenforceable under applicable laws with respect to a particular party or circumstance will be severed from these Terms and Conditions with respect to such party or circumstance without invalidating the remainder of these Terms and Conditions or the application of such provision to other persons or circumstances. The provisions of these Terms and Conditions which by their nature are required to survive the expiration or earlier termination of these Terms and Conditions shall survive such termination or earlier termination. The headings used in these Terms and Conditions are for convenience of reference only and shall not be conclusive as to their meaning.