SALES AGREEMENT - STANDARD TERMS & CONDITIONS
- APPLICABLE TERMS: This Sales Agreement which is referred to as the ‘Agreement’ governs the sale of equipment, components, parts, materials & software which is referred to as System(s) which are provided by Maratek Environmental Inc., known as ‘Maratek’.
Any applicable addenda, these terms, Maratek’s proposal, price quote, purchase order, or acknowledgement issued by Maratek form the parties’ final agreement (“Agreement”). In the event of a conflict between these documents, precedence shall apply in accordance with the order listed in the previous sentence. Maratek’ proposal, offer or acceptance is conditioned on Buyer's acceptance of this Sales Agreement. Any additional or conflicting terms in Buyer's request for proposal, specifications, Purchase Order or any other written or oral communication are not binding on Maratek unless separately signed by Maratek. Maratek’ failure to object to Buyer’s additional or conflicting terms does not operate as a waiver of any terms contained in this Sales Agreement.
2.0 DELIVERY; TITLE; RISK OF LOSS; EXPORT COMPLIANCE; LAWS, REGULATIONS & END USER DECLARATION:
- Delivery: System(s) will be delivered in accordance with INCO 2010 Terms, DAP (Delivered at Place) which is the Buyer’s address. When System(s) are ready for shipment, Maratek will inform the Buyer, and Maratek will arrange the shipment/s and provide the details to the Buyer.
- Title: When the system is received at the Buyer’s dock then immediately the title and risk of loss or damage passes to the Buyer. Since the INCO terms are DAP, Maratek is responsible for all transportation and insurance. The Buyer is responsible for any import duties and any local, state or federal taxes. Any shipping, delivery and installation dates are estimated dates only.
- Risk of Loss: Maratek is not liable for any loss or expense incurred by Buyer or Buyer's customers if Maratek fails to meet its delivery schedule.
- Export Compliance (Export Control Regulations): Buyer will ensure that the end use of the system(s) will not be deployed in any embargoed or sanctioned countries which are listed by the United States Government State Department, Commerce Department or Treasury Department; and Government of Canada, Current sanctions imposed by Canada. If the Buyer is outside either Canada or the United States then the Buyer will check country-specific information on embargoed & sanctioned countries and ensure there is compliance to Export control regulations. The Customer shall indemnify and hold harmless Maratek from and against any claim, proceeding, action, fine, loss, cost and damages arising out of or relating to any noncompliance with export control regulations by the Customer, and the Customer shall compensate Maratek for all losses and expenses resulting therefrom, unless such non- 2 DAP November 8, 2019 compliance was not caused by the fault of the Customer. The Customer’s obligation to fulfil this agreement is subject to the proviso that the fulfilment is not prevented by any impediments arising out of national and international foreign trade and customs requirements or any embargos [or other sanctions.
- Compliance to regulations & laws & End User Declaration:
- System(s) are used for CBD/Hemp business and in accordance with and approval of all governmental regulations and guidelines and not in violation of any legal requirements.
- Buyer agrees that the System(s) or other components being provided by Maratek would not be used in the application/s of either Nuclear, Radiological, Biological or Chemical warfare.
- Buyer agrees that they will adhere to local, state/provincial & federal laws and regulations with regards to Fire codes & Health & Safety, Environment requirements and also operate the equipment which they acquire from the Seller in accordance with those same laws & regulations.
If the System is placed into storage, Buyer will pay all Maratek’ storage expenses, including but not limited to, preparation for and placement into storage, handling, freight, storage, inspection, preservation, maintenance, taxes and insurance, upon receipt of an invoice(s) from Maratek. When conditions permit and upon payment to Maratek of all amounts due, Buyer must arrange, at its expense, to remove the System(s) from storage. Buyer bears the risk of loss, damage or destruction to System(s) in storage.
4.0 CHANGES IN WORK: No change will be made to the scope of work unless Buyer and Maratek agree in writing to the change and any resulting price, schedule or other contractual modifications. If any change to any law, rule, regulation, order, code, standard or requirement impacts Maratek’ obligations or performance under this Agreement, Maratek may request a change order for an equitable adjustment in the price and time of performance. All changes must be reflected on the Purchase Order from the Buyer and confirmation of the Change Order/s will be issued to the Buyer via a Sales Order Acknowledgement amendment.
5.0 BUYER’s OBLIGATIONS:
- Maratek’s performance is contingent upon Buyer timely fulfilling all of its obligations under this Agreement. These obligations include the Buyer supplying the down payment, all documents including the Signed Sales Order Acknowledgement and approvals needed for Maratek to perform, including but not limited to technical information and data, drawing and document approvals, and necessary commercial documentation.
- Buyer is responsible for preparation to be completed prior to the installation of the System(s) including, without limitation, all civil engineering work and foundations, unloading, unpacking, if necessary any drops or hookups for electrical, air & water, 3 DAP November 8, 2019 rigging, and proper positioning of System(s) in Buyer’s equipment and the costs of the foregoing.
- Maratek’s service department can make a service representative available for consultation on-site to assist with the Buyer’s responsibilities above if so desired. This service will be priced at Maratek’s usual and customary daily service rates as announced from time to time plus reasonable expenses and will be subject to separate terms and conditions.
- Buyer will ensure that Maratek’s employees or representatives who visit the site there are no violation to a collective agreement, no hazards in the area, orientation to the site health and safety guidelines & policies including fire regulations and evacuations has been done, availability of first aid personnel, and Buyer to provide labour and an interpreter if necessary.
- Maratek shall be responsible for commissioning and testing according to accepted engineering standards and what has been agreed to relative to the Purchase Order from the Buyer.
6.0 PRICING & PAYMENT: Prices and payment terms as stated in Maratek’s proposal, if not stated, the standard pricing and payment terms are as:
(a) Pricing: United States Dollars (USD)
- 50 % down payment/deposit when the Buyer issues the Purchase Order which the deposit will be applied against materials used to build the system(s).
- 50 % prior to the departure of the shipment.
(c) Credit Approval. All orders are subject to credit approval by Maratek. Maratek may modify, suspend or withdraw the credit amount or payment terms at any time. If there is doubt as to Buyer’s financial condition, Maratek may withhold manufacturing or shipment, require additional cash payments, or require other satisfactory security.
(d) Installment System(s). Where System(s) are delivered in shipments or only part of a shipment fails to comply with this Agreement, the Buyer may only reject the non-compliant portion. Buyer will separately pay for each shipment. If Maratek holds or stores System(s)s for Buyer, it shall do so at Buyer's sole risk and expense.
(e) Taxes, Shipping, Packing, Handling. Section 2.0 prevails in this case since the INCO Terms are DAP with the Buyer.
(f) Late Payments. Late payments shall bear interest at an annual percentage rate of twelve percent (12 %) or one (1) percent per month.
(g) Disputed Invoice. If Buyer disputes all or any portion of an invoice, it must first deliver written notice to Maratek of the disputed amount and the basis for the dispute within ten (10) 4 DAP November 8, 2019 calendar days of receiving the invoice. Failure of Buyer to timely notify Maratek of any dispute constitutes a waiver of Buyer’s claim. If Buyer only disputes a portion of the invoice, Buyer must pay the undisputed portion. Upon resolution of the dispute, Buyer must pay the invoice or the remainder of the invoice, plus any accrued interest on the late payment.
(h) Suspension/Termination Right. Maratek may suspend work if an undisputed invoice is more than thirty (30) calendar days past due. Maratek may terminate this Agreement if an undisputed invoice is more than sixty (60) calendar days past due. Unless prohibited by law, Maratek may also terminate this Agreement immediately in the event of a material adverse change in Buyer’s financial condition including, but not limited to, bankruptcy, insolvency, liquidation, corruption, or similar financial condition.
7.0 DELAY & CANCELLATION:
- Buyer has no right to delay shipment but may cancel this Agreement on thirty (30) days written notice if Maratek has not already commenced any work. If Buyer cancels this Agreement, it shall pay all cancellation charges including, without limitation: (i) the full price for any finished System(s); (ii) for partially completed system(s), the portion of the price determined to be due by Maratek based on its percentage of completion of the System(s); (iii) reasonable overhead and profit; and (iv) any payments due subcontractors and/or suppliers for any materials, components or System(s)s ordered which cannot be cancelled, refunded, or redirected for other use. If the Buyer does cancel, the Buyer will forfeit the deposit.
- If the Buyer is not compliant in being ready for either accepting the system/s, not being ready for installation or fails in performing to conduct the tests in accordance to requirements from Maratek, the Buyer will be responsible for any extraordinary costs such as demobilization & mobilization, demurrage, additional travel and living costs for service technicians, & associated premium costs and expedite fees.
- If Maratek foresees any delay on the System(s) then Maratek will provide written notification to the Buyer within five (5) calendar days stating the new delivery date and reason.
- If Buyer is not compliant to Section 5.0, subsection i) then Maratek will provide a new delivery schedule.
8.0 ACCEPTANCE: Once Maratek accepts the Signed Sales Order Acknowledgement or Purchase Order coupled with the down payment from the Buyer, the Terms & Conditions in this Agreement shall constitute the contract (“Contract”) between Buyer and Maratek.
9.0 INDEMNITY: Maratek and Buyer shall indemnify the other from and against all third-party claims alleging bodily injury, death or damage to a third party’s tangible property, but only to the extent caused by the other party’s negligent acts or omissions. If the injury or damage is caused by the parties’ joint or contributory negligence, the loss and/or expenses shall be borne by each party in proportion to its degree of fault. No part of the System(s) or Buyer’s site is considered third party property.
(a) Warranties. Maratek warrants that: (i) each System (s) is free from defects in material and workmanship; (ii) each System(s) materially conforms to Maratek' specifications that are attached to, or expressly incorporated into this Agreement; and (iii) at the time of delivery, Maratek has title to each System(s) free and clear of liens and encumbrances (collectively, the “Warranties").
(b) Conditions to the Warranties. The Warranties are conditioned on: (i) no repairs, modifications or alterations being made to the System(s) other than by Maratek or its authorized representatives; (ii) Buyer handling, using, storing, installing, operating and maintaining the System(s) in compliance with any parameters or instructions in any specifications attached to, or incorporated into this Agreement; (iii) compliance with all generally accepted industry standards; (iv) Buyer discontinuing use of the System(s) after it has, or should have had, knowledge of any defect; (v) Buyer providing prompt written notice of any warranty claims within the warranty period described below; (vi) at Maratek' discretion, Buyer either removing and shipping the System(s) or non-conforming part thereof to Maratek, at Buyer's expense, or granting Maratek reasonable access to the System(s)to assess the warranty claims; (vii) System(s) not having been subjected to accident (including force majeure), alteration, abuse or misuse; and (viii) Buyer not being in default of any payment obligation.
(c) Warranty Coverage & Replacement parts.
- Exclusions Any System(s) that is described as being experimental, developmental, prototype, or pilot is specifically excluded from the Warranties and is provided to Buyer “as is” with no warranties of any kind, unless specified elsewhere in the Sales Order Acknowledgment.
- Inclusions during the Warranty period. There will be times during the warranty period that the Buyer will have to do minor repairs on the System(s) such as a part replacement due to failure. If the Buyer uses their only Facilities personnel or 3rd party authorized personnel then this will not violate the warranty provisions.
- Return of Defective Parts during the warranty coverage period. If the Buyer has a defective part, the Buyer must advise Maratek and obtain an RMA (Return Material Authorization) number and once obtained then ship the defective part to Maratek using INCO terms DAP (Delivered at Place). Maratek will be responsible for any duties and customs clearance. The Buyer must ensure the shipping documents reference the RMA number and indicate the part is defective. Concurrently Maratek will have a replacement part sent. If Maratek does not receive the defective part within thirty (30) calendar days after issuing the RMA the Buyer will be invoiced for the replacement part.
(d) Warranty Period. Material is covered for twelve (12) months from date of receipt at Buyer’s site and Labour is covered for three (3) months from date of receipt. Buyer must provide written notice of any claims for breach of Warranties by the earlier of twelve (12) months. Additionally, absent written notice within the warranty period, any use or possession of the System(s) after expiration of the warranty period is conclusive evidence that the Warranties have been fully satisfied.
(e) Remedies. Buyer's sole and exclusive remedies for breach of the Warranties are limited, at Maratek' discretion, to repair or replacement of the System(s), or its non-conforming parts, within a reasonable time period. The warranty on repaired or replaced parts is limited to the remainder of the original warranty period. Unless Maratek agrees otherwise in writing, Buyer will be responsible for any costs associated with: (i) gaining access to the System(s); (ii) removal, disassembly, replacement, installation, or reinstallation of any equipment, materials or structures to permit Maratek to perform its warranty obligations; (iii) transportation to and from the Maratek factory or repair facility; and (iv) damage to equipment components or parts resulting in whole or in part from non-compliance by the Buyer or from their deteriorated condition. All exchanged System(s) replaced under this Warranty will become the property of Maratek.
(f) Transferability. The Warranties are only transferable during the warranty period and only to the System’s initial end-user.
11.0 LIMITATION OF LIABILITY: Notwithstanding anything in this Agreement Maratek is not liable, whether based in Contract, warranty, tort which includes negligence, strict liability, indemnity or any other legal , for: Loss of use revenue, savings, profits, interest, goodwill or opportunity, costs of capital, cost of replacement, claims arising from the Buyer’s third party contracts, or any type of indirect, special, liquidated, punitive, exemplary, collateral, incidental or consequential damages, or for any other loss or cost of a similar type. Maratek’s Maximum Liability under this agreement is the Actual Purchase Price received by Maratek for the system(s) that gave rise to the claim.
12.0 INFRINGEMENT: Maratek will, at its option and expense, defend or settle any suit or proceeding brought against Buyer based on an allegation that any System(s) or use thereof for its intended purpose constitutes an infringement of any Patent Cooperation Treaty country patent or misappropriation of a third party’s trade secret or copyright in the country where the System(s) is delivered by Maratek. Buyer will promptly give Maratek written notice of the suit or proceeding and the authority, information, and assistance needed to defend the claims. Maratek shall have the full and exclusive authority to defend and settle such claim(s) and will pay the damages and costs awarded in any suit or proceeding so defended. Buyer shall not make any admission(s) which might be prejudicial to Maratek and shall not enter into a settlement without Maratek’ consent.
Maratek will have no duty or obligation under this Section 12.0 if the System(s) is: (i) supplied according to Buyer's design or instructions and compliance therewith has caused Maratek to deviate from its normal course of performance; (ii) modified by Buyer or its contractors after delivery; or (iii) combined by Buyer or its contractors with devices, methods, systems or processes not furnished hereunder and by reason of said design, instruction, modification, or combination a suit is brought against Buyer. In addition, if by reason of such design, instruction, modification or combination, a suit or proceeding is brought against Maratek, Buyer must protect Maratek in the same manner and to the same extent that Maratek has agreed to protect Buyer under this Section 12.0.
- Both during and after the term of this Agreement, the parties will treat as confidential all Information obtained from the disclosing party and all information compiled or generated by the disclosing party under this Agreement for the receiving party, including but not limited to business information, manufacturing information, technical data, drawings, flow charts, program listings, software code, and other software, plans and projections. Neither party may disclose or refer to the work to be performed under this Agreement in any manner that identifies the other party without advance written permission. However, Maratek has the right to share confidential information with its affiliates and subcontractors, provided those recipients are subject to the same confidentiality obligations set forth herein.
- Maratek Policy is not unlawfully or improperly to receive or use confidential information, including trade secrets, belonging to others. This policy precludes Maratek from obtaining, directly or indirectly from any employee, contractor, or other individual rendering services to Maratek confidential information of a prior employer, client or any other person which such employee, contractor, or individual is under an obligation not to disclose. Buyer agrees to abide by this policy.
- Advertising, Promotion & Trade References. If either party wants to display the name of the other party on internet sites, exhibits, brochures, promotional materials, other marketing materials, trade references, etc. then the party requesting this must obtain permission in writing from the other party.
14.0 FORCE MAJEURE: If Maratek’ performance is delayed by any cause beyond its reasonable control (regardless of whether the cause was foreseeable), including without limitation acts of God, strikes, labor shortage or disturbance, fire, flood, accident, war or civil disturbance, invasion, delays of carriers, cyber-attacks, terrorist attacks, failure of normal sources of supply, or acts or inaction of government, Maratek’ time of performance will be extended by a period equal to the length of the delay plus any consequences of the delay. Maratek will notify Buyer within ten (10) calendar days after becoming aware of any such delay.
15.0 APPLICABLE LAWS: This Agreement shall be governed by, and interpreted and enforced in accordance with, the laws in force in the Province of Ontario, Canada.
16.0 ASSIGNMENT: Neither party may assign all or part of this Agreement, or any rights or obligations under this Agreement, without the prior written consent of the other; but either party may assign its rights and obligations, without recourse or consent, to any parent, wholly-owned subsidiary, or affiliate or affiliate’s successor organization (whether as a result of reorganization, restructuring or sale of substantially all of a party’s assets). However, Buyer shall not assign this Agreement to: a competitor of Maratek; an entity in litigation with Maratek; or an entity lacking the financial capability to satisfy Buyer’s obligations. Any assignee expressly assumes the performance of any obligation assigned.
17.0 SURVIVAL: The Sections titled “Infringement,” “Limitation of Liability,” “Confidentiality,” & “Delivery; Title; Risk of Loss; Export Compliance; End User Declaration” survive termination, expiration or cancellation of this Agreement.