These General Terms and Conditions of Sale and Rental for Brico Holdings Inc., including divisions Brico Oil Tools and Brico Machining (hereinafter collectively referred to as “Brico”) apply to all products and services provided by Brico to its customers (each a “Customer”). Any modifications to these terms and conditions shall not bind Brico to the modifications unless accepted in writing by an authorized representative of Brico. Any accepted orders and agreements by Brico will be governed by the terms and conditions stated herein, unless stated otherwise, and any additional terms that may be agreed to in writing by an authorized representative of Brico.
TERMS AND CONDITIONS OF SALE AND RENTAL
- All prices are governed by Ex Works (“EXW”) as that term is defined in the International Chamber of Commerce (ICC) published set of Incoterms 2020, unless otherwise agreed to in writing by Brico. Any other shipping terms will have to be agreed to in writing by Brico. All prices are subject to change at Brico’s sole discretion upon written notice to the Customer. Brico shall not be responsible for storage, handling, demurrage or other similar additional charges. If any freight, transportation, insurance, shipping, crating or additional charges are included in the stated price of the agreement, any applicable increases in such charges becoming effective after the date of the agreement shall be paid by the Customer.
- Payment is due within (30) days from date of invoice unless otherwise agreed to in writing by an authorized representative of Brico.
- Interest shall be charged at the rate of two percent (2%) per month (24% per annum) on all overdue amounts owing to Brico.
- Unless credit is provided by Brico in accordance to its credit policy described below, all products and equipment are sold on a cash on delivery (“COD”) basis.
- Products and rental equipment which are subject to cancelation after acceptance will be subject to a restocking charge of $100.00. Products specially ordered or manufactured to a Customer’s specifications, may only be canceled subject to Brico in its sole discretion and provided that the returned products are in reusable condition and may be subject to additional cancelation charges.
- In the event a Customer cancels an order for services or rental equipment, a Customer shall be liable for all costs incurred by Brico in the mobilization/demobilization related thereto, and any other reasonable costs incurred by Brico incidental to such cancellation.
- The Customer will at all times have complete care, custody, supervision and control of the services and products and the recommendations of Brico are only advisory and without any representation as to the result.
- Brico warrants that the products to be provided by Brico pursuant to an agreement/purchase order shall conform to Brico’s published specifications or the specifications agreed to in writing by Brico and the Customer. If any of the products fail to conform to such specifications upon inspection by Brico, Brico, at its option, shall repair or replace the non-conforming products with the type originally furnished or issue a credit to the Customer, provided that Brico is notified thereof in writing within thirty (30) days after delivery of the particular non-conforming products. All non-conforming products shall be returned back to Brico. With regard to materials or equipment furnished by third party vendors and/or suppliers, Brico's liability shall be limited to the assignment of such third party vendor's or supplier's warranty to the Customer, to the extent such warranties are assignable.
- Brico warrants that all rental equipment will be in good operating condition.
- Brico’s warranty obligations hereunder shall not apply if the non-conformity was caused by: (i) the Customer’s failure to properly store or maintain the products or rental equipment, (ii) abnormal well conditions, abrasive materials, corrosion due to aggressive fluids or incorrect specifications provided by the Customer, (iii) unauthorized alteration or repair of the products or rental equipment (iv) the products or rental equipment are lost or damaged while on the Customer’s site or in the Customer’s care due to the Customer or any third party’s acts, omissions, negligence, vandalism or force majeure (as describe in paragraph 10.1 below), or (v) use or handling of the products or rental equipment by the Customer in a manner inconsistent with Brico’s recommendations.
- Brico’s warranty obligations under this Section 2 shall terminate if: (i) the Customer fails to perform its obligations under this or any other agreement between the Parties, or (ii) the Customer fails to pay any charges due Brico.
- THE WARRANTY REFERRED TO HEREIN IS EXCLUSIVE AND NO OTHER WARRANTY WHETHER WRITTEN OR ORAL IS EXPRESSED OR IMPLIED. BRICO SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
LIMITATION OF LIABILITY
- The Customer agrees that Brico, including its directors, officers, employees, agents, successors and assigns, shall not be liable to the Customer for any indirect, consequential, punitive, incidental, loss of profits or special damages or loses arising by Brico’s products or equipment or any inadequacy thereof for any purpose, or any deficiency or defect therein, or the use or maintenance thereof, or any repairs, servicing or adjustments thereto, or any delay in providing or failure to provide any thereof, or any interruption or loss of service or use thereof.
- In the event there are direct damages arising by Brico’s products or equipment, the Customer agrees that the maximum liability of Brico is limited to the amount the Customer paid for the specific product or equipment. This limitation of liability clause applies to any of the following wrongdoings of Brico: breach of contract, negligence of any kind or degree, strict product liability or any other theory of liability.
- The Customer shall indemnify Brico against, and hold Brico, its directors, officers, employees, successors and assigns, harmless from any and all claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including solicitor's costs, on a solicitor-client full indemnity basis, arising out of connection with, or resulting from the purchase of products or the rental of the equipment, including without limitation, the manufacture, selection, delivery, possession, use, operation or return of the products and/or equipment. The indemnity herein shall survive the termination of the agreement between the parties.
CREDIT AND TERMS OF PAYMENT
- Brico, at Brico’s sole discretion, may extend credit to Customers who satisfy the requirements of Brico’s credit policy. Brico will determined creditworthiness of Customers from a review of the credit application submitted by the Customer Brico’s credit department.
- Customer’s account balances shall remain at all times within the credit limit established by Brico.
- If a Customer’s account status becomes past due (ie. over 30 days) or a Customer is constantly delinquent, Brico may, at Brico’s sole discretion, revoke the Customer’s credit and/or suspend delivery, and the Customer’s account will be placed on COD.
- Any Customer whose credit is revoked will be required to re-apply for future credit, and all accounts will have to be paid in full prior to Brico reviewing the Customer’s credit application.
- Brico will regularly review its credit terms and reserves the right to change or modify its credit policy at any time at Brico’s sole discretion without any notice to the Customer.
RISK OF LOSS AND TITLE
- The Customer hereby assumes and shall bear the risk of loss and damage to Brico’s products and equipment from any and every cause whatsoever and shall keep and maintain Brico’s products and equipment in good repair, condition and working order.
- In the event of damage of any kind whatsoever to Birco’s products and equipment, the Customer shall, at the option of Brico, either replace the damaged products or equipment at the current new market value or repair the damaged products or equipment to Brico’s satisfaction, the cost of such repairs to be borne by the Customer.
- Shipping terms shall always be EXW unless otherwise agreed in writing by an authorized representative of Brico. All shipments will be packed for domestic delivery, unless otherwise specified by the Customer.
- All transportation charges (from Brico to destination specified by the Customer) shall be borne by the Customer.
- Unless otherwise specified, risk of loss, including transportation delays and losses shall pass to Customer as soon as the products or rental equipment depart Brico, unless stated otherwise.
- Brico reserves the right, in Brico’s sole discretion, to refuse the return of any products.
- Returns will not be considered by Brico if requests are made after 30 days from the date of purchase.
- In the event that Brico accepts the return of products:
- all products returned must be approved by an authorized representative of Brico and signed for on the return portion of the Packing List;
- returns are subject to restocking charges, if applicable, includes restocking charges on rental equipment;
- the Customer is responsible for any actual packing and transportation costs, provided that for products returned within 30 days due to an error by Brico, Brico will be responsible for the costs of the return transportation; and
- All returns will be inspected by Brico for final approval.
- Any variation of the above return policy will require an authorized representative of Brico for approval.
- Brico will regularly review its return policy and reserves the right to change or modify its return policy at any time at Brico’s sole discretion without any notice to the Customer.
- All sales of explosives will follow the rules of Natural Resources Canada and the Canada Explosives Act.
- Proof of valid Magazine and/or Factory licence is required before a sale can be finalized.
- Valid Transportation of Dangerous Goods training is required by personal accepting explosives and proof of training will be required by Brico prior to the release of the explosives.
- Printed name and signature will be require on all Dangerous Goods documents.
LOST-IN-HOLE AND DAMAGED-BEYOND-REPAIR
- In the event that the Customer has lost or damaged beyond repair Brico’s products or equipment, the costs of such lost products or equipment shall be borne on the Customer, the specific amounts for each product and equipment shall be set out in the agreement between the parties.
- Brico shall incur no liability whatsoever for any delay or failure to deliver the products, services or equipment or for any delay or failure to perform any of its obligations hereunder by reason of strike, lockout, threat of strike or lockout, fire, flood, interruption or delay in manufacture or transportation, act of nature, war, insurrection, mob violence, requirement of government authorities, including government mandated business closure, embargo, shortage of labour, equipment or materials, plant breakdown or any other causes beyond the control of Brico whether or not such causes of delay or failure are in existence whether or not known to Brico at the time of completion of the agreement.
- Quotations may be changed at Brico’s sole discretion and notice will be provided to the Customer if the quote has been changed, provided that Brico’s failure to provide notice to the Customer will not void the price change by Brico. Only agreements signed by both parties will have a firm price and delivery time.
- The Customer shall pay all third-party charges, in compliance with Brico’s current price list, and any sales, use, rental or other taxes that may be applicable to transactions hereunder. The Customer shall pay all applicable GST, permits, licenses, levies, excise, import and other duties unless otherwise agreed to in writing by an authorized representative of Brico in addition to the prices quoted.
- The parties will first attempt to resolve any dispute between them which results from their agreement or these terms and conditions in good faith. If the parties are unable to resolve a dispute through direct negotiation, they will use the services of a mediator. Each party will bear its own expenses and an equal share of the costs of the mediator(s) and the body administering the mediation. If the negotiation or mediation fails to reach an equitable solution to the dispute within 30 days after the request by either party to submit the dispute to negotiation or mediation, then the dispute shall be referred to and finally resolved by the Alberta Courts, which shall have exclusive jurisdiction.
- Brico shall have the right to assign any agreement to any of its subsidiaries, affiliated or related companies without the consent of the Customer. The Customer may not assign any agreement without the prior written consent of Brico, which consent may be arbitrarily withheld.
- These terms and conditions shall be governed by and interpreted in accordance with the laws of Canada and Province of Alberta, excluding conflicts of law and choice of law principles.
- Should any of these terms or conditions, or a portion thereof, be unenforceable or in conflict with governing country, state, province, or local laws, then the validity of the remaining provisions, and portions thereof, shall not be affected by such unenforceability or conflict, and these terms and conditions shall be construed as if such provisions, or portion thereof, were not contained herein.
- These terms and conditions shall be read with and form part of all written agreements between Brico and the Customer, unless stated otherwise in the agreement.
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