The title to and ownership of new equipment and hardware shall remain with Liburdi Automation Inc. (hereinafter referred to as LAI) until Liburdi Automation has been paid the full amount of the purchase price for the equipment and the customer has performed all other obligations pursuant to the terms and conditions between LAI and the customer. The customer shall maintain insurance coverage from the EX-Works point of shipping until the title has transferred. Title and right of possession for equipment or hardware supplied by the customer for repair or modification hereunder shall remain with the Customer, subject to any applicable lien rights of LAI. Title and right of possession of any equipment and hardware supplied for further processing or integration shall remain with LAI or the Customer and cannot be encumbered or disposed of by the subcontractor or supplier. Reasonable access to the equipment and hardware shall be provided to employees or representatives of LAI and the Customer.
All prices quoted shall remain in effect for a period of thirty (30) days from the date of issue. Unless otherwise agreed, all prices are Ex-Works Hamilton Ontario, Canada and do not include shipping charges. LAI prices do not include sales, use, excise or similar taxes. Consequently, in addition to the price specified herein, the amount of any present or future sales; use, excise or other similar tax applicable to the sale, repair, modification or use of the equipment hereunder shall be paid by the Customer, or in lieu thereof, the Customer shall provide the Company with a tax-exemption certificate acceptable to the taxing authorities.
If shipments are delayed by the Customer, payments shall become due on the date when LAI is prepared to make shipment. If the work to be performed hereunder is delayed or cancelled by the Customer, payments shall be made based on the purchase price and the percentage of completion or upon the time and material cost incurred. Equipment held for the Customer shall be at the risk and expense of the Customer. Invoices are due upon receipt. Overdue payments are subject to finance charges at the rate of 1.5% of invoice price per month.
Liburdi may, at its discretion, accept termination of orders in whole or in part, at any time, upon notice from the customer. In such event, the Customer's liability shall be:
Standard Products:
- A 30% restocking fee will be charged to the customer and any applicable transportation fees and taxes incurred.
Custom and non standard inventory parts, Products and Services:
- i) The payment of the price for all Goods and Services completed or delivered in accordance with the Contract on the termination date; and
- ii) The actual cost of raw materials for Goods and Work or services in process, incurred by Liburdi on the termination date, plus reasonable profit on such Work or Services in process.
Except as provided herein, Liburdi will not be liable for any claims or expenses arising from such termination including, without limitation, loss, anticipated production or profit.
LAI shall not be responsible or liable for any loss, damage, detention or delay caused by war, invasion, insurrection, riot, the order of any civil or military authority, or by fire, flood, weather or other acts of the elements, breakdown, lockouts, strikes, or labour disputes, the failure of LAI suppliers to meet their contractual obligations, or, without limitation of the foregoing, any other cause beyond the reasonable control of LAI and the receiving of the product by the Customer shall constitute a waiver of all claims for loss or damage due to delay.
LAI warrants to Customer that all work performed by LAI during the MANUFACTURE of NEW EQUIPMENT and hardware, and the Reconditioning of used equipment shall be free from defects in workmanship, under normal and proper use for a period of one (1) year from the date of shipment. REPAIR of products, subassemblies, components, electronic modules and other hardware parts are warrantied for ninety (90) days from date of shipment. Unless otherwise expressly agreed in writing, LAI shall, at its option, repair or replace the defective part(s) to make good such defects which are shown to the reasonable satisfaction of LAI to be due to LAI workmanship. On expiration of the warranty period, any liability of LAI shall terminate. The obligation of LAI under this Warranty shall not be applicable should the equipment or part(s) be subject to any accident, abuse, misapplication, misuse, negligence, or has not been properly installed, maintained, operated, stored, or packed for transport while in Customer’s possession, in accordance with the original equipment manufacture’s operating procedures. Liability for service/repair related work shall not exceed the cost of the process charges, repair or services rendered except by prior written agreement.
Any work done by LAI in carrying out its obligation under this Warranty shall be performed at LAI Hamilton plant unless otherwise agreed between the parties. LAI shall not be liable for any expenses or liability sustained in connection with customer technical support or trouble shooting and the removal of any defective unit or part(s) or for any expenses, taxes, duties or liabilities sustained in connection with any shipment to or from LAI Hamilton plant.
If it is not practical to remove such defective units or part(s) thereof from the site where discovered to be defective, LAI shall use its best efforts to perform its obligations hereunder at such site provided, however the Customer shall pay LAI for all reasonable travelling and living expenses required in connection therewith and also the cost for shipping any replacement material required from LAI Hamilton plant, or from any other point to such site, together with any other cost that may be incurred had the work been carried out at LAI Hamilton plant. The obligations of LAI with respect to any claim hereunder, shall be conditional upon the filing of such claim in writing by the Customer within ninety (90) days after discovery by the Customer of the defect to which the claims refer. This Warranty is the only Warranty by LAI and is expressly in lieu of all other conditions and warranties, expressed, implied or statutory.
LAI liability on any claim of any kind, including negligence, for any loss or damage arising out of, connected with, or resulting from this contract, or from the performance or breach thereof, or from the design, manufacture, sale, delivery, resale, installation, engineering recommendation, technical direction, inspection, repair, operation/use of any replacement parts, or repair work covered by or furnished under this contract shall in no case exceed the billing price of the particular work which gives rise to the claim. In no event, whether as a result of breach of contract or warranty or alleged negligence, shall LAI be liable for special or consequential damages including, but not limited to, loss of profit or revenue, loss of use of the equipment or any associated equipment, facilities or services, downtime costs, cost of environmental restorations, cost of replacement or purchased power, or claim of customers of the Customer for such damages.
LAI warrants that the equipment, related components, hardware and software included in the Scope of Supply is free from defects in material and workmanship and will perform according to its specifications. The responsibility of LAI is limited to the manufacturing of the hardware or equipment. Injury, accident to personnel and/or damage to the equipment or other surrounding equipment resulting from usage is the responsibility of the user. Customer indemnifies LAI from any demands, claims or causes of action relating to the use of the equipment and hardware supplied by LAI including legal expenses incurred by LAI.
Original designs, technical information and any commercial documents supplied by LAI are “CONFIDENTIAL”, “TRADE SECRETS” and “PROPRIETARY” to LAI. Such design may or may not be covered by “PATENT” and in all cases ownership of the design and proprietary information remains with LAI and cannot be divulged to third parties, copied or MANUFACTURED without written consent from LAI. All background, sideground and foreground Intellectual Property remains the property of Liburdi.
All software and control logic provided with the equipment and hardware is proprietary to and the property of LAI. The customer is granted a non transferable single users license for use of the software only in conjunction with the equipment purchase from LAI.
Any amendments to the terms set out herein between LAI and the Customer, or the addition of any terms not otherwise set herein, shall be in writing and acknowledged thereon by both LAI and the Customer.
The terms of this contract between LAI and the Customer shall be construed in accordance with the laws of the Province of Ontario and the Country of Canada. Any dispute or controversy which cannot be resolved by mutual agreement within a reasonable amount of time shall be referred to arbitration for settlement in Toronto, Ontario under the rules of conciliation and Arbitration of UNCITRAL by three appointment arbitrators whose award shall be final and unappealable.
