The following general terms and conditions (the “Terms and Conditions”) govern the sale of products and/or the performance of services by Boréas Technologies Inc. (“BOREAS”) to any person or legal entity ordering products and/or services (the “CUSTOMER”) from BOREAS (collectively the “Parties” and individually a “Party”).1) ACCEPTANCE
No CUSTOMER work order for BOREAS products and/or services (an “Order”) shall be binding upon BOREAS until accepted in writing by an authorized BOREAS representative. Each Order shall be deemed a separate offer by the CUSTOMER to purchase BOREAS products and/or services upon the following Terms and Conditions. The Quotation (hereinafter defined), the Terms and Conditions, the Order, the acceptance of the Order, and any special conditions contained in a writing expressly referring to the Order and signed by an authorized BOREAS representative, shall together form an agreement between the Parties (the “Agreement”).2) CANCELLATION
The CUSTOMER may cancel (in whole or in part) an Order accepted by BOREAS, subject to the conditions provided herein, by advising BOREAS in writing of said cancellation. Upon receipt of the CUSTOMER’s written notification of cancellation, BOREAS will arrange to stop all work on the products and/or services cancelled as promptly as reasonably possible.
In the case of any cancellation, the CUSTOMER agrees to reimburse BOREAS for any costs, expenses, value of the work performed and/or value of the products supplied, prior to the effective work stoppage. In addition, to compensate for other damages suffered by BOREAS from the cancellation of the Agreement, the CUSTOMER shall pay to BOREAS an amount representing 15% of the total price of the Agreement as liquidated damages (“Liquidated Damages”). The Parties agree that these Liquidated Damages represent a reasonable estimate of the other damages that will be suffered by BOREAS resulting from the cancellation of the Agreement by the CUSTOMER.
3) QUOTATION AND PRICING
“Quotation” means the document containing the products and/or services of BOREAS available to the CUSTOMER with the associated pricing for such named products and/or services. The Quotation shall not be considered as an offer to contract, but only an invitation to submit an Order to BOREAS according to the prices set forth in said Quotation and upon the Terms and Conditions hereof. The prices stated in the Quotation shall be firm for 30 days. The Quotation is not assignable by CUSTOMER without the prior written consent of BOREAS.
4) CHANGE IN SCOPE
No changes to the scope of any services or products provided under an Agreement are permitted unless agreed to in advance by BOREAS in writing. The CUSTOMER may suspend the services or manufacture of products under an Agreement by giving a written directive to BOREAS. BOREAS shall not be required to resume the provision of the services or the manufacture of products until the Parties agree to upon the change in scope, a new schedule, and BOREAS’s adjusted pricing for the services or products to be provided. In the event the CUSTOMER suspends work under an Agreement for more than 30 days, or the Parties cannot agree on the change in scope, the new schedule, or BOREAS’s adjusted pricing, the Agreement shall be considered has having been cancelled by the CUSTOMER and the "Cancellation" provision shall apply.
Payment terms are 50% at the conclusion of an Agreement and 50% C.O.D unless BOREAS has approved the CUSTOMER for credit terms. If BOREAS extends credit terms to the CUSTOMER, all invoices shall be payable in full within thirty (30) days of the date of invoice by wire transfer. The CUSTOMER shall be considered in default of payment by the mere lapse of time without requiring any formal notice thereof. In the event of default, any outstanding amount shall bear interest at a rate of 2.0% per month (24.0% per year), or at the maximum rate permitted by law, whichever is the lesser amount.
Unless otherwise indicated, all amounts referred to in any documentation between the Parties are in US Dollars.
6) DELIVERY AND SHIPPING
Unless otherwise specified, all products are sold Ex Works (EXW) at BOREAS’s facility and all services are performed at BOREAS’s facility. Accordingly, the CUSTOMER shall be responsible for all transportation arrangements and insurance coverage of all goods between BOREAS facility and CUSTOMER’s destination and shall bear all costs, including custom fees and insurance costs, risk of loss, damage in-transit, and transportation delays relating to those arrangements. In the event that CUSTOMER fails to make the necessary transportation arrangements to take delivery of the products within 30 days of receiving notice from BOREAS that the products are ready for delivery, the CUSTOMER shall, in addition to any other rights conferred by the law, be liable for all related costs including insurance and securing storage.
7) RESERVE OF OWNERSHIP
BOREAS hereby reserves title to all products sold until total and full payment of the amounts due, including applicable taxes and interest.
Upon reception of products and/or services, CUSTOMER shall immediately inspect all goods for any shortages, quality defects or non-conformity to the Agreement. Shall the CUSTOMER neglect to advise BOREAS of any shortage, quality defects or non-conformity within ten (10) business days of the reception of the products and/or services, the CUSTOMER will be deemed to be completely satisfied of all goods received.
9) VARIATIONS AND TOLERANCE
Products sold remain subject to tolerance and variations with respect to dimensions, weight, straightness, condition, composition, mechanical properties, internal conditions, quality, and specifications, and any such variations and tolerance consistent with practical testing, inspection methods and regular industrial practices are known and accepted by the CUSTOMER.
10) RETURN POLICY
No product shall be returned without authorization and shipping instructions first being obtained from BOREAS. No product return will be accepted if the package has been opened, the product damaged or is otherwise not in a resalable condition. All freight forwarding, transportation or any other shipping costs and custom clearance charges shall be borne by the CUSTOMER. Except as otherwise provided, BOREAS does not offer any refunds, returns, or exchanges.
11) WAIVER ON COMPENSATION
CUSTOMER irrevocably waives its right, in advance, to any compensation whatsoever on any amount due to BOREAS for whatever reason.
12) TAXES AND OTHER CHARGES
CUSTOMER shall pay any taxes, fees or charges of any nature whatsoever imposed by any governmental authority (other than taxes based on BOREAS’s income), resulting from an Agreement.
13) OWNERSHIP OF WORK
CUSTOMER acknowledges that all intellectual property in BOREAS’ products and services is and shall remain the sole and complete property of BOREAS and/or its licensors. Unless expressly agreed upon with BOREAS, intellectual property resulting from works made for hire shall also remain the sole and complete property of BOREAS and/or its licensors.
Technical discussions, suggestions, feedbacks, test reports or similar communications regarding BOREAS technology shall not be considered as a contribution to any intellectual property of BOREAS and shall vest in BOREAS.
14) CONFIDENTIALITY NONDISCLOSURE
CUSTOMER acknowledges that Confidential Information (defined below) provided to it by BOREAS is BOREAS’s proprietary information and is valuable and not otherwise obtainable from other sources and shall not be copied or reverse-engineered without BOREAS’S written permission. CUSTOMER agrees to exercise due diligence to protect and preserve in confidence the Confidential Information.
15) CONFIDENTIAL INFORMATION
“Confidential Information” means any commercial, technical, scientific, financial, legal, personal or other information disclosed by BOREAS relating to its business activities, strategies or opportunities, intellectual property, suppliers, customers, financial situation or employees which, at the time of disclosure, is identified as confidential, is disclosed in confidence, or would be understood by the CUSTOMER, exercising reasonable business judgment, to be confidential, but excludes:
- a) information known to the CUSTOMER before the date on which it is received;
- b) information known by the public or available to the public before the date on which it is received;
- c) information that becomes known by or available to the public after the date on which it is received and that does not result from a breach of confidentiality on the part of the CUSTOMER;
- d) information received at any time by a Person not bound to one of the Parties by an undertaking of confidentiality with regard to such information;
- e) information independently produced by the CUSTOMER;
BOREAS warrants to the CUSTOMER that each product conforms to BOREAS’s published specifications for such products. This warranty lasts for twelve (12) months from the date of delivery of the product.
Notwithstanding the foregoing, BOREAS will not be liable for a nonconforming product if:
(a) the nonconformity was caused by any neglect, misuse, or mistreatment of the product, including any improper installation, storage or testing, or any modifications or repairs of the product by an entity other than BOREAS; or
(b) the nonconformity resulted from CUSTOMER’s design, specifications, or instructions for such products.
If the products do not meet the warranty specified above, BOREAS agrees to correct any defect, at its option, either by repairing or replacing the non-conforming products, or by crediting the CUSTOMER’s account for such products. BOREAS’s liability under this warranty will be limited to products that are returned during the warranty period and that are determined by BOREAS not to conform to such warranty. If BOREAS elects to repair or replace such products, BOREAS will have a reasonable time to complete such actions. Repaired products will be warranted for the remainder of the original warranty period. Replaced products will be warranted for a new full warranty period.
EXCEPT AS SET FORTH ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, BOREAS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, COMPATIBILITY OR ACCURACY.
BOREAS may provide the CUSTOMER with technical applications, or design advice, quality characterization, reliability data, or other services. CUSTOMER agrees that providing these services does not expand or otherwise alter BOREAS’s warranties as set forth above and no additional obligations or liabilities arise from BOREAS providing such services. BOREAS PROVIDES ALL SERVICES TO CUSTOMER “AS IS” AND “WITH ALL FAULTS.” BOREAS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING ITS SERVICES.
17) DEFAULT AND REMEDIES
The CUSTOMER shall be considered to be in default if:
(i) it fails to pay any amount owed to BOREAS when it falls due;
(ii) it fails to comply with any provisions of the Terms and Conditions;
(iii) it becomes bankrupt or insolvent.
In the event of a default, BOREAS shall, without prejudice to its other rights or remedies, be entitled to:
(i) offset the overdue amount against any other funds of CUSTOMER in BOREAS’s custody;
(ii) treat the Agreement as if cancelled by CUSTOMER, in which case CUSTOMER shall be liable for any amount payable pursuant to the paragraph entitled "Cancellation" above;
(iii) delay manufacture or delivery of all or part of the products and/or delay performance of the related services sold to CUSTOMER under any Agreement; and/or
(iv) recover or require CUSTOMER to return forthwith, at CUSTOMER’s expense (including proper insurance with respect thereto), all products and other materials which BOREAS provided to CUSTOMER.
In case of default of payment, CUSTOMER shall be responsible for all collection expenses and costs incurred by BOREAS (including reasonable attorney’s fees). If BOREAS at any time and in its sole discretion determines that CUSTOMER’s financial condition or conduct jeopardizes BOREAS’s right to payment, BOREAS may require payment in advance for all or part of the products and/or services.
In case of default to the "Ownership of Work" or "Confidentiality Nondisclosure" provisions above, CUSTOMER recognizes that such violation will cause irreparable harm to BOREAS and that BOREAS shall be entitled to apply for injunctive relief.
UNDER NO CIRCUMSTANCES, SHALL BOREAS BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE OR KIND INCLUDING BUT NOT LIMITED TO, DAMAGES BASED UPON LOSS OF GOOD-WILL, LOSS OF SALES OR PROFITS, LOSS OF REVENUES, WORK STOPPAGE OR BACKLOG, EVEN IF THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE TO BOREAS OR COULD HAVE BEEN REASONABLY FORESEEN BY BOREAS. BOREAS’S LIABILITY FOR ANY MATERIAL INJURY TO THE CUSTOMER IS LIMITED TO DAMAGES CAUSED BY ITS INTENTIONAL OR GROSS FAULT. TO THE EXTENT PERMITTED BY LAW, BOREAS’S TOTAL LIABILITY TO CUSTOMER SHALL NOT EXCEED THE AGGREGATE PURCHASE PRICE OF THE PRODUCTS AND SERVICES SOLD TO CUSTOMER AS STATED IN THE AGREEMENT GIVING RISE TO SUCH LIABILITY.
19) FORCE MAJEURE
BOREAS shall not be held responsible or liable for any loss or damage resulting from a delay in the delivery of the products or any failure to perform its obligations to CUSTOMER if the causes of such delay or failure are attributable to a superior force including, without limitation, Acts of God, governmental authority orders, strikes, embargoes, default from suppliers, subcontractors or third parties, supply shortages, or other causes beyond the reasonable control of BOREAS. In the event any delay occurs because of these causes, the date of delivery shall be extended by at least the period of time attributable to said superior force.
CUSTOMER shall defend, indemnify and hold BOREAS harmless from any and all liability, claims, losses, damages, costs and expenses (including settlement costs, reasonable attorney’s fees and costs) to a third party arising from CUSTOMER’s fault, omission or negligence, or breach of the Terms and Conditions.
An Agreement shall inure to the benefit of and shall be binding upon the heirs, successors, and assigns of the Parties. CUSTOMER shall not assign its rights and obligations under any Agreement without BOREAS’s prior written consent.
22) GOVERNING LAW
An Agreement shall be governed by, construed and enforced in accordance with the laws of the Province of Quebec and with the laws of Canada applicable therein. The Parties irrevocably attorn to the exclusive jurisdiction of the courts of the Province of Quebec, sitting in the judicial district of Saint-François, for any dispute relating to it. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
Any tolerance or failure by BOREAS to enforce any provision of an Agreement shall not be construed as a waiver of BOREAS rights to later enforce each and every such provision in the future. No waiver shall be effective unless expressly mentioned in a writing.
24) ENTIRE AGREEMENT AND INTERPRETATION
The Quotation, the Terms and Conditions, the Order, the acceptance of the Order, and any special conditions contained in a writing expressly referring to the Order and signed by an authorized BOREAS representative, are the complete terms of an Agreement between the Parties. Except as stated herein, no other terms, conditions, agreements or understandings, in any way modifying or adding to an Agreement, shall be binding on BOREAS unless made in writing and signed by an authorized BOREAS representative.
If any provision of an Agreement is held to be invalid or unenforceable, such invalidity or unenforceability shall attach only to such term or condition. The validity of the remaining terms and conditions shall not be affected thereby.
The Parties hereto have expressly requested that their Agreement be drafted in English / Les Parties ont expressément requis que leur entente soit rédigée en anglais.