Standard Terms and Conditions of Sale

    These Standard Terms and Conditions govern the sale of all standard products, systems and services (“Products”) by Berg Chilling Systems Inc. and its divisions and subsidiaries (“Seller”) and apply notwithstanding any conflicting, contrary or additional terms and conditions in any purchase order or other document or communication (“Purchase Order”) from Buyer. Submission by Buyer to Seller of an order shall constitute Buyer’s acceptance of these terms and conditions. These terms and conditions may only be waived or modified in a written agreement signed by an authorized representative of Seller. Neither Seller’s acknowledgment of a purchase order nor Seller’s failure to object to conflicting, contrary additional terms and conditions in a purchase order shall be deemed an acceptance of such terms and conditions or a waiver of the provisions hereof.

1. ORDERS, DELIVERY AND TITLE.
      All orders are subject to acceptance by Seller. All shipments by Sellers are EX WORKS, (point of origin) and all transportation charges shall be paid by the Buyer, in addition to the Products. Subject to Seller’s right of stoppage in transit, delivery of the Products to the carrier shall constitute delivery to Buyer risk of loss shall there upon pass to Buyer, however, title shall remain with Seller until Buyer makes absolute payment in full for the Products. Selection of the carrier and the delivery route shall be made by the Seller unless specified by the Buyer. Seller shall use reasonable efforts to initiate shipment and schedule delivery as close as possible to Buyer’s requested delivery dates. Buyer acknowledges that delivery dates provided by Seller are estimates only and that Seller is not liable for the failure to deliver on such dates. Seller reserves the right to make deliveries in installments.

2. PRICE.
      Price shall be as specified by Seller and shall be applicable for the period specified in Seller’s quote. If no period specified, prices shall be applicable for thirty (30) days. Notwithstanding the foregoing, prices shall be subject to increase in Seller’s cost or other circumstances beyond Seller’s reasonable control. Price are exclusive of federal, provincial, state, local or any other taxes, charges, levies, and duties, shipping charges, forwarding agent’s and broker’s fees, consular fees and document fees. If Seller shall be liable for or shall pay any of the foregoing, the Seller shall charge such amount to Buyer in addition to the price of the Products.

3. TERMS OF PAYMENT.
      Payment shall be net thirty (30) days from date of invoice or as otherwise specified by Seller in writing. Buyer agrees to pay the entire net amount of each invoice from Seller pursuant to the terms of each such invoice without offset or deduction. Orders are subject to approval by Seller, which in its sole discretion at any time change the terms of Buyer’s credit, re quire payment in cash, bank wire transfer or by check and/or require full payments of any or all amounts due to become due for Buyer’s order before shipment of any or all of the Products. If Seller believes in good faith that Buyer’s ability to make payments maybe impaired or if Buyer’s shall fail to pay any overdue invoice, Seller may suspend delivery of any order or any remaining balance thereof until such payment is made or cancel any order or any remaining balance thereof and Buyer shall remain liable to pay for any Products already shipped and Non-Standard products ordered by Buyer. Buyer agrees to submit such financial information from time to time as maybe reasonably requested by Seller for the establishment and/or continuation of credit terms. The date of collection/receipt of a check by the Seller shall be deemed the date of payment by the buyer. Any check received from Buyer maybe applied by Seller against any obligation owing from Buyer to Seller, regardless of any statement appearing of the face of such check, without discharging Buyer’s liability for any additional amounts owing from Buyer to Seller, and the acceptance by Seller of such check shall not constitute a waiver of Seller’s right to pursue the collection of any remaining balances. Buyer shall pay interest on any invoice not paid when due from the due date to the date of payment at the rate of the lesser of (i) one and one-half (1-1/2%) percent per month and (ii) the highest rate permitted by applicable law. If buyer does not make payment when due, Seller may pursue any legal or equitable remedies, in which event Seller shall be entitled to reimbursement for costs of collection and reasonable legal fees.

4. ACCEPTANCE OF PRODUCTS, PRODUCT RETURNS AND CANCELLATION.
      Inspection and acceptance of the Products shall be Buyer’s responsibility. Buyer is deemed to have accepted the Products unless written notice of rejection is received by Seller within (15) days after delivery of the Products. Buyer waiver any right to revoke acceptance thereafter. Buyer shall report any discrepancy in shipment quantity or damage within ten (10) days after delivery. No return of Products shall be accepted by Seller without Seller’s written approval. Returned Products must be in original manufacturer’s shipping cartons complete with all packing materials. Products for return shall be returned freight prepaid in the manner specified in the Seller’s written approval. If returned Products are claimed to be defective, a complete description of the nature of the defect must be included with the returned Products. Products not eligible for return shall be returned to the Buyer freight collect. In the event of cancellation by Buyer (a) Any item(s) completed at time of receipt of written cancellation notice will be shipped and invoiced and full price (b) Work on balance of order will be stopped as promptly as reasonably possible, and Seller will be reimbursed for all actual expenditures, commitments, liabilities, and costs, determined in accordance with good accounting practice, made or incurred in respect to such incomplete items, plus a reasonable profit on such costs. Any items, which can be used economically to fill other orders, maybe canceled without charge.

5. FORCE MAJEURE.
      Seller shall not be liable for failure to fulfill its obligations herein or for delays in delivery due to causes beyond its reasonable control, including but not acts of God, revolution, natural disasters, acts or omission of other parties, acts or omissions of civil or military authority, Government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, riots, wars, acts of terrorism, delays in transportation or inability to obtain supplies or materials through its regular sources. Seller’s time for performance of any such obligation shall be extended for the time period of such delay or Seller may, at its option, cancel any order or remaining part thereof, without liability, by providing written notice of such cancellation to Buyer.

6. SELLER’S LIMITED WARRANTY.
      Seller warrants to Buyer that upon delivery to Buyer the Products purchased hereunder shall conform to thee applicable Seller’s specifications as provided in the quotation. Except as are contained in this paragraph 6, Seller makes no warranties, conditions, guarantees, or representations relating to the Products, express or implied, statutory or otherwise. The Seller warrants all Products it manufactures to be free from defects in workmanship and material when used under conditions recommended by us. The Seller’s obligation under the warranty is limited to repair or replace or otherwise make good, at our factory, any parts which, within year after date of shipment of equipment of our manufacture to the original purchaser, after being returned to us with transportation prepaid, and upon our examination, shall disclose to our satisfaction to have defective. The Seller neither assures, nor authorizes any other persons to assume for us, any liability in connection with the sales of our equipment except under the conditions of this warranty. The warranty does not cover any Field (on site) labour charges for replacement of parts, adjustment, repairs, or any other work done. This warranty shall not apply to any apparatus which in our opinion has been subject to misuse, negligence, or pressures in excess of limits, recommended by the Seller, or which have been repaired or altered outside the company’s factory. This warranty does not cover refrigerants gas, nor does it cover any Product or apparatus damaged from freezing of water or heat transfer fluid. Replacement or repair of defective material will be EX WORKS our factory, and will assume any used portion of this warranty. All defective parts become the property of Seller and must be returned within fifteen (15) days of the replacement, transportations prepaid, as advised by Seller, to become eligible for replacement under this warranty. Warranty Claim Forms, found in the Owner’s Manual, must accompany all warranty claims and parts returns or this warranty shall not apply. Seller is not responsible for any sales, use, excise, duty or any other applicable taxes associated with the replacement of parts under this warranty. This warranty is only effective with all the terms and conditions of this quote being met, and it is understood that time is of the essence in this agreement. REPAIR OR REPLACEMENT OF PRODUCTS NOT OF OUR MANUFACTURE WILL BE LIMITED TO THE WARRANTY OF THE MANUFACTURERS OF SUCH PRODUCTS. Seller shall transfer to Buyer whatever transferable warranties and indemnities Seller receives from the manufacturers of any subcomponents of the Products, if any, including transferable warranties and indemnities in respect of patent infringement. Please refer to the Product Service Labour Policies in your Product Owner’s Manual for possible extensions to this Warranty.

7. LIMITATION OF LIABILITIES.
      Seller’s total liability for any and all claims which may arise under this agreement or with respect to the Products sold hereunder, including but not limited to those caused by defective material and/or unsatisfactory performance, shall be limited to the purchase price of the Products to which any such claim relates. Seller shall not be liable in any circumstances, howsoever caused, whether in contract, tort or otherwise, for any loss of profits or for any indirect, direct, special, incidental, exemplary, punitive or consequential damages, losses, injury, costs or expenses of any nature relating to the Products, including without restriction, loss, damage or injury arising out of the negligence of the Seller or that of its employees, agents, representatives or other persons for whom in law the Seller is responsible. Seller shall not be liable for and Buyer shall indemnify, defend and hold Seller harmless from any claims based on Seller’s compliance with Buyer’s specifications, designs or instruction, or modifications of any Products by parties other than Seller, or use in combination with other Products.

8. USE OF PRODUCTS BY BUYER.
      Buyer assumes all risk and liability for loss or injury in connection with the use of the Products whether used singly or in combination with other substances or Products in any process whatsoever. Any information provided by Seller including without restriction technical information sheets and product brochures is based on tests believed to be reliable. However, as actual conditions of use may vary and are beyond the control of Seller, Product’s specified characteristics and any recommendations for use, however communicated, are offered solely of Buyer’s evaluation and must be verified by it.

9. INTELLECTUAL PROPERTY.
      If a Product includes software or other intellectual property, such software or other intellectual property is provided by Seller to Buyer subject to the copyright and user license to use any software or other intellectual property in any manner or for any purpose not expressly permitted by such license agreement.

10. CONFIDENTIALITY.
      All specifications (other than the Buyer’s Specifications), technical data, price lists, documents, materials and proprietary information relating to the Products are the confidential and proprietary information of the Seller and shall be treated in confidence by Buyer and shall not be disclosed, reproduced or communicated to any third party in any way whatever except as is required in connection with the purchase and use of the Product by the Buyer, and on terms and conditions agreed with the Seller in writing. The foregoing provisions do not apply to information that was publicly available prior to the date of disclosure by Seller or that becomes publicly available after such disclosure other than pursuant to a breach of any obligation of confidentiality to Seller.

11. GENERAL.
      As used herein, terms appearing in the singular shall include the plural and terms appearing in the plural shall include in singular. No rights, duties, agreements or obligations hereunder may be assigned or transferred by either party, by operation of law, merger or otherwise, without the prior written consent of the other. Any attempted or purported assignment shall be void. Notwithstanding the foregoing, Seller’s obligations under these Terms and Conditions may be performed by divisions, subsidiaries or affiliates of Seller. The obligations, rights, terms and conditions hereof shall be binding on the parties hereto and their respective successors and assigns. The waiver of any provision hereof or of any breach or default here under shall not be deemed a waiver of any other provision hereof or breach or default hereunder No provision of these Terms and Conditions. These Terms and Conditions shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein and shall be treated in all respects as an Ontario contract. The Buyer and the Seller irrevocably and unconditionally at torn to the jurisdiction of the courts of the Province of Ontario and all courts competent to hear appeals there from. The United Nations Convention for the International Sale of Goods shall not apply. It is the express wish of the parties that this contract and all documents in connection with this contract be drawn up in English. Il est la volonte expresse des parties que le present contrat et tous les documents qui s’y rattachent soient rediges en langue anglaise.

Service Labour Policy                      Limited Warranty