General Terms and Conditions of Sale
The following terms and conditions of sale shall apply to the purchase of goods by Diversity Technologies Corporation (hereinafter called “Di-Corp”). The party selling such goods (the “Seller”) shall be deemed to have full knowledge of and be bound by the terms and conditions herein upon Seller’s acceptance of Di-Corp’s purchase order.
1. GENERAL
In the event of any conflict or inconsistency between the terms and conditions of sale herein and the terms and conditions contained in Seller’s invoice or in any other form issued by the Seller, whether or not any such form has been acknowledged or accepted by Di-Corp, the terms and conditions set forth herein shall prevail. No waiver, alteration or modification of these terms and conditions shall be binding upon Di-Corp unless made in writing and signed by a duly authorized representative of Di-Corp.
2. SCOPE OF WORK
Seller shall supply all goods set forth in Di-Corp’s purchase order in accordance with the terms set forth in Di-Corp’s purchase order and these Terms and Conditions of Sale (collectively, the “Agreement”).
3. REPRESENTATIONS AND WARRANTIES
The Seller represents and warrants that:
- all goods supplied by Seller to Di-Corp shall comply with applicable law, shall be of merchantable quality, shall be free of defects and deficiencies and shall comply with the specifications set forth in Di-Corp’s purchase order for such goods;
- title to all goods supplied to Di-Corp shall pass to Di-Corp free of all liens and security interests whatsoever; and
- the sale, resale or use of any goods provided by Seller to Di-Corp shall not infringe directly or indirectly on any patent, intellectual property rights, copyright or trademark, foreign or domestic, owned or controlled by any third party. The Seller agrees to pay all license fees and royalties and assumes all costs incident to the use in the performance of Di-Corp’s purchase order of any invention, design, process, product, or device which is the subject of patent rights or copyrights held by others.
4. DELIVERY
Seller shall deliver the goods to Di-Corp in accordance with the schedule therefore set out in Di-Corp’s purchase order and in accordance with Incoterms 2024. In the event of a direct conflict between Incoterms 2024 and these terms and conditions, these terms and conditions shall prevail. The carrier, whether chosen by Seller or Di-Corp, shall be deemed to be the agent of Seller and not of Di-Corp. and risk of loss for goods shall remain with Seller until delivered to Di-Corp at the location specified therefore in Di-Corp’s purchase order. Claims for shortages or damaged products shall be rectified by Seller within ten (10) days after receipt of notice of such shortage from Di-Corp. The acceptance of delivery of goods by Di-Corp shall not constitute a waiver of claims for loss or damage to such goods that occurred prior to such delivery.
5. WARRANTY
Seller warrants that all goods sold by the Seller to Di-Corp shall be free of defects in material and workmanship. The applicable warranty period shall be twelve (12) months from the date of delivery of the goods. Seller’s obligations under this warranty are limited to the repair or replacement, at Seller’s option, of defective goods provided that notice of any defect is given by Di-Corp to the Seller in writing within the applicable warranty period. Seller shall assume all responsibility and expense for dismantling, removal, re-installation and freight in connection with the foregoing.
6. RETURNED GOODS
Goods which are damaged or do not meet the specifications set out in Di-Corp’s purchase order may be returned by Di-Corp to the Seller and Seller shall refund Di-Corp 100% of the amount paid by Di-Corp for such goods. All shipping charges for returned goods shall be paid for by the Seller (and if unpaid by Seller, shall be added to the refund amount payable to Di-Corp or paid by Di-Corp).
7. TERMS OF PAYMENT
Unless otherwise agreed to in writing between Di-Corp and the Seller, invoices pertaining to goods which comply with the terms of the Agreement shall be paid within (45) days of invoice date. Where there is a bona-fide dispute as to whether Seller is in breach of the Agreement with respect to any goods, Di-corp may withhold payment for such goods until such dispute has been resolved or finally determined.
8. THE AGREEMENT
The Agreement shall constitute the complete agreement between the parties with respect to the goods set forth in the purchase order and shall supersede all previous quotations, orders or agreements. The law of the Province of Alberta shall govern the validity, interpretation and enforcement of the Agreement and the Agreement shall be interpreted in accordance with its plain and ordinary meaning having regard to the purposes hereof (and any rule of interpretation that would construe any ambiguity against the party drafting it shall not be applied). Di-Corp and the Seller hereby attorn to the exclusive jurisdiction of the Courts of the Province of Alberta. The Agreement may only be amended by further agreement in writing executed by both parties.
9. LIABILITY
Seller shall be liable for, and shall fully indemnify and hold Di-Corp harmless from and against any damages, losses or claims of whatever kind (including, without limitation, claims made by third parties) arising out of, in connection with or resulting from the Seller’s negligence or willful misconduct or from a breach by Seller of the Agreement. Di-Corp shall be liable for, and shall fully indemnify and hold Seller harmless from and against any damages, losses or claims of whatever kind (including, without limitation, claims made by third parties) arising out of, in connection with or resulting from Di-Corp’s negligence or willful misconduct or from a breach by Di-Corp of the Agreement. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR LOSS OF PRODUCTION, LOSS OF PROFIT, LOSS OF USE, LOSS OF CONTRACTS, COST OF CAPITAL, INTEREST, COST OF DELAY, BUSINESS INTERRUPTION, OR FOR ANY OTHER SPECIAL, CONSEQUENTIAL OR INDIRECT LOSSES WHETHER ARISING FROM FAULT, BREACH OF CONTRACT, TORT (INCLUDING CONCURRENT OR SOLE AND EXCLUSIVE NEGLIGENCE), INDEMNITY, STRICT LIABILITY OR OTHERWISE.
10. TIMELY PERFORMANCE
Seller acknowledges and agrees that time is of the essence with respect to the delivery of the goods set out in Di-Corp’s purchase order. Failure to deliver such goods within the time specified therefor shall constitute a breach of this Agreement.
11. CONFIDENTIALITY
Seller agrees to safeguard and keep confidential any and all information relating to Di-Corp obtained by Seller or provided to Seller in connection with this Agreement and such information shall only be used by Seller for the purposes of carrying out Seller’s obligations under this Agreement.
12. RELATIONSHIP
Nothing in this Agreement shall be construed to create any partnership, joint venture, agency, fiduciary or employment relationship between the Seller and Di-Corp, and neither party shall have any authority to contract for or bind the other party in any manner whatsoever. Nothing in this Agreement shall be construed to make the Seller an exclusive supplier of any goods.
