TERMS AND CONDITIONS
1. In connection with our mutual agreement for delivery of product, equipment or services by the entity identified on the first page of this document (“Seller”), you (“Customer”) have agreed to the acceptance of these terms and conditions (“Terms and Conditions”). These Terms and Conditions, together with any terms specified in the preceding page(s), or in any other document which incorporates these Terms and Conditions, if any, and any Customer Profile (Credit Application) (collectively, the “Agreement”), represent and incorporate the entire understanding between the parties with respect to the subject matter hereof and supersede all previous oral or written agreements between Seller and Customer regarding the products, equipment and services provided by Seller (except in those instances when a separate agreement executed by both Seller and Customer provides that it is to control). Any terms contained in any Customer purchase order, or other Customer document, which are inconsistent with or in addition to the terms contained in the Agreement shall be deemed rejected in advance and shall form no part of the Agreement, and in the event of a conflict between the terms of the Agreement and any such document, the terms of the Agreement shall govern and prevail. In the event of a conflict between these Terms and Conditions and the terms in the preceding page(s), or in any document which incorporates these Terms and Conditions, if any, as applicable, these Terms and Conditions shall control. The terms of the Agreement may not be amended or waived except in a writing signed by the parties hereto.
2. Customer represents and warrants that it is familiar with the characteristics, qualities, and uses of the product or equipment sold or leased, or services delivered by Seller in connection herewith, that Customer is not relying on Seller's skill or judgment to select or furnish product, equipment, or services for any particular purpose, and that Customer has been provided adequate product and equipment information and instructions and will follow the proper directions in the use of any product or equipment. Ineffectiveness of products or equipment sold or leased in connection herewith, or other unintended consequences, may result because of such factors as (without limitation) the presence of unfavorable geologic or weather conditions, or the manner of use or application, and these risks and liabilities, along with any others (without limitation), are hereby assumed by Customer, user or its customers. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES TO CUSTOMER, USER OR ANY THIRD PARTY, RESPECTING ANY PRODUCT, EQUIPMENT OR SERVICES PROVIDED IN CONNECTION HEREWITH, EXCEPT THAT SERVICES WILL BE CONSISTENT WITH SELLER'S STANDARD PRACTICES AND THOSE WHICH ARE GENERALLY FOLLOWED BY SIMILAR PROVIDERS IN THE SAME INDUSTRY. SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, ARISING BY LAW, USAGE OF TRADE, COURSE OF DEALING OR OTHERWISE, RESPECTING THE PRODUCT, EQUIPMENT OR SERVICES, INCLUDING WITHOUT LIMITATION, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR NON-INFRINGEMENT. No person or agent has any authority on behalf of Seller to make any warranties or representations different from, or in addition to, those stated herein. Customer acknowledges and agrees that, to the extent services, products, or equipment sold or leased by Seller in connection herewith are performed or manufactured by third parties, including independent contractors performing services on behalf of Seller, such services, products or equipment are furnished “AS-IS” by Seller and are subject only to the third-party provider's or manufacturer's warranties, if any, which attach to such services, product or equipment.
3. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, SELLER SHALL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY, ENHANCED OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION, BUSINESS INTERRUPTION, LOST PROFITS, DIMINUTION IN VALUE OR LOSS OF YIELD, FOR ANY REASON WHATSOEVER, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE, THE CUSTOMER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND THE LEGAL OR EQUITABLE THEORY UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, SELLER'S LIABILITY FOR DIRECT DAMAGES (A) FOR PRODUCT SOLD OR EQUIPMENT PROVIDED SHALL IN NO EVENT EXCEED THE PURCHASE OR LEASE PRICE OF THE PARTICULAR PRODUCT OR EQUIPMENT WITH RESPECT TO WHICH SUCH DAMAGES ARE CLAIMED AND (B) FOR SERVICES PROVIDED SHALL NOT EXCEED THE FEES PAID OR PAYABLE FOR THE PARTICULAR SERVICES PERFORMED. Seller does not warrant and shall not be liable for any results obtained in using any product or equipment sold or leased hereunder either alone or in combination with other substances, products or equipment or for any results obtained in using any services, and shall not in any case be liable to Customer or any other person or entity for damages to person or property or otherwise, incurred as a result of the purchase, use (negligent or otherwise), treatment, storage, handling (including without limitation demurrage or like charges), disposal, application or performance of any product or equipment sold or leased hereunder or use of any service provided hereunder.
4. Orders for product, equipment sold or leased, or services, including those with delayed delivery dates, cannot be cancelled absent written authorization from Seller. Seller may, but shall not be obligated to, accept returns of products in their original condition (i.e. without any damage or diminution in value), and in such event, Customer shall pay the “restocking fee” invoiced by Seller therefor in accordance with the payment terms contained herein. The parties intend that the restocking fee constitute liquidated damages to compensate Seller for the handling of such products and are not a penalty. The parties acknowledge and agree that the Seller's harm caused by handling of the restocked product would be impossible or very difficult to accurately estimate at the time of contracting and that the restocking fee is a reasonable estimate of the anticipated or actual impact to Seller that might arise from handling such a return and is Seller's exclusive remedy for allowing such a return and handling the product. Any claim for shortage, damage, or condition of product (excluding chemical analysis) sold or equipment leased hereunder or deficiency in services must be made in writing at once upon arrival of such product or equipment or delivery of the services. Failure by Customer to so notify Seller will be deemed a waiver of such claims by Customer. Where delivery is Customer's responsibility, risk of loss or damage to any product sold, equipment sold or leased, or containers used to transport either shall pass to Customer when product or equipment are made available for pick up at Seller's shipping point. Where delivery is Seller's responsibility, risk of loss of or damage to any product sold, equipment sold or leased, or containers used to transport either shall pass to Customer when Seller or its designated carrier or agent enters Customer's property. If Customer is purchasing and/or leasing the product(s) and/or equipment related to this invoice on credit terms (other than pursuant to a pre-arranged financing program with Bank of Nova Scotia (“BNS”) (a “BNS Financing Program”), then the Customer hereby requests, and Seller agrees to extend credit to Customer for the exclusive purpose of allowing Customer to make the purchase or lease of product(s) and/or equipment contemplated by this invoice on the terms agreed to in the particular credit arrangements made between Seller and Customer in addition to the following terms of credit: (i) payment in full in respect of the amount set out as being due in any monthly statement shall be due and payable on the day of the month following the statement date as presented on Page 1 of such statement; (ii) amounts due but not paid by the day which is 30 days from the date of the applicable statement, shall also be liable for a finance charge on the unpaid balance of 24% per annum or the maximum rate permitted by applicable law, whichever is less; (iii) Customer agrees to be bound by Seller's standard sales terms and conditions, available at Seller's sales outlets or at www.nutrienagsolutions.ca. In the event of any conflict between the terms of an invoice, any monthly statement and the Customer Profile / Credit Application or other agreed credit arrangement, the terms of the invoice shall control. If the customer is purchasing and/or leasing the product(s) and/or equipment related to this invoice using a BNS Financing Program, then the customer hereby irrevocably directs BNS to pay Seller for this invoice from such BNS Financing Program. Seller reserves the right to establish and/or change credit and payment terms if, in the opinion of Seller, Customer's financial condition/previous payment record warrants such change. Customer will promptly provide Seller all information required at times for any credit facility extended to Customer by Seller.
5. Customer agrees to investigate, indemnify, defend and hold harmless Seller and its affiliates, BNS and each of their respective shareholders, directors, officers, employees and agents from and against all liability, loss, damages, injury, claims, judgments, demands, penalties, fines, suits or proceedings, whether judicial, administrative or otherwise, and legal fees (on a solicitor-client basis) and other costs and expenses of whatever kind and nature, arising out of or in any manner related to the use, transportation, storage, handling, disposal, operation or performance of the product or equipment or delivery of the services provided by or on behalf of Seller hereunder.
6. Seller, without written notification to the Customer, will comply with future laws applicable to permissible default penalty charges and finance charge rates.
7. Customer agrees that as a condition of the delivery of product or equipment sold by or leased from Seller, Customer agrees to use, handle, store, transport and dispose of products and equipment in such a manner as is necessary for the safety and protection of persons, property and the environment, and in accordance with the manufacturer's guidelines and labels, applicable law, and Material Safety Data Sheets for such products and equipment. Customer agrees that it will adequately instruct and train employees with respect to the same and will inform employees and customers of hazards with respect to products and equipment sold or leased in connection herewith.
8. Seller shall not be liable to Customer nor be deemed to be in breach of any agreement related to the delivery of product sold by or leased from Seller or delivery of services, for any failure or delay in fulfilling its obligations hereunder, to the extent such failure or delay is due to causes or contingencies beyond its reasonable control, including, but not limited to, acts of God, the elements, actions of government, strikes, fires, floods, wars, civil commotions, industrial disturbances, shortages of adequate power or transportation facilities, strikes, labor disturbances and embargoes.
9. Prices are exclusive of all sales, use, or excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer under this Agreement. Any such taxes, duties and charges currently assessed or which may be assessed in the future, that are applicable to the sales made under this Agreement are for Customer's account, and Customer hereby agrees to pay such taxes provided, that, Customer shall not be responsible for any taxes imposed on, or with respect to, Seller's income, revenues, gross receipts, personnel, or ownership of real or personal property or assets. Customer agrees that its actions in obtaining and using the product, equipment or services hereunder shall at all times comply with applicable laws, including export control laws.
10. The Customer's acceptance of delivery of any product(s), equipment, or services provided hereunder shall constitute acceptance of these Terms and Conditions by Customer.
11. The conditions of carriage that will govern are those statutory conditions of carriage in force in the province or territory where the applicable shipment originates.
12. Except as noted in section 11 above, these Terms and Conditions shall be governed by, and interpreted and enforced in accordance with, the laws of the province of Alberta and the federal laws of Canada applicable therein (excluding any conflict of laws, rule or principal which might refer such construction to the laws of another jurisdiction) and the customer expressly attorns to the exclusive jurisdiction of the courts of Alberta to hear any dispute arising out of this invoice/statement.
13. The parties agree that these conditions and any documents ancillary thereto shall be drafted in English only. Les parties conviennent que ces termes et tout accessoire de documents s'y rapportant doivent être rédigées en anglais seulement.
