FMS Terms and Conditions of Sale

2. Purpose Orders and Acceptance

• Orders; Acceptance. All purchase orders for Goods and Services shall be subject to acceptance by Seller, in Seller’s sole discretion. After acceptance, no order may be cancelled by Buyer without Seller’s written consent. After acceptance of any order, any damages or expenses incurred by Seller as a result of cancellation, or any change requested by Buyer, will be included in Seller’s invoice to Buyer unless otherwise agreed by Seller in writing. Unless otherwise stated, a minimum 10% cancellation fee will be charged to the Buyer. Hardware delivered hereunder by Seller shall be deemed accepted by Buyer upon delivery and/or provision, unless Buyer reasonably rejects same in writing within ten (10) days. Buyer may not revoke acceptance and may only reject goods or services for defects substantially impairing the value of same.
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• Validity. An Order Document is valid for thirty (30) days from the date of the of the document, thereafter, all prices and deliveries are subject to change by the Seller unless the Order Documents is extended in writing by the Seller.

3. Prices and Taxes

• Prices. The price for the Goods shall be the Seller’s current List Price, or such other price as the parties may agree in writing as set forth in the Order Documents.  Unless otherwise agreed to, the Price does not include travel expenses and will be charged back to the Buyer. Travel expenses, includes without limitation, transportation, meals, and accommodations, shipping, insurance, technical support (maintenance) or upgrade fees.
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• Taxes. Unless otherwise specified in the Order Documents, the price does not include Taxes. Any Taxes (other than taxes due on Seller’s net income, employees or property), that are due and payable relating to the sales transaction are the responsibility of the Buyer. For the purposes of this clause “Taxes” mean without limitation, all sales, transfer, harmonized, goods and services, value added, and use and excise tax, and includes withholding tax, duties, customs, fees, charges, interest, penalty and assessments imposed by any governmental authority on any amounts payable by Buyer. All amounts payable to Seller shall be without set-off and without deduction of any Taxes. If Seller is required to collect Taxes to be paid by the Buyer, the Buyer shall pay such Taxes to Seller within 30 days of such written demand.
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• Expenses.  Buyer is responsible for all travel related expenses incurred by Seller (airfare, meals, lodging, truck rental) during installation and commissioning and will be invoiced at cost plus 5% administration fee. Unless stated otherwise, necessary travel days for installation and commissioning are additional expenses payable by the Buyer charged at 50% of the then current daily rates detailed in Order Documents.
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• Price Adjustment. No price increases will be permitted during the first 12 months of the Agreement. With a minimum of 30 days’ advance notice in writing, Seller may, at its discretion, adjust the pricing for the Goods and Services annually, with a maximum price increase for any single year to be the higher of: (i) 7% of the pricing for the Goods and Services from the previous year; or (ii) the Consumer Price Index published (CPI) for the relevant jurisdiction for the applicable year.

4. Payment Terms

• Payment. Buyer shall pay all invoiced amounts due to Seller within 30 days from the date of Seller's invoice, unless otherwise agreed to by the parties in writing. Buyer shall make all payments hereunder by wire or electronic transfer in the agreed upon currency as stated in the Order Documents  to the banking information as provided by the Seller.
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• Schedule.  Payment schedule for Goods and Services is as follows, unless otherwise agreed to by the parties in writing:
  (i) 50% on contract award
  (ii) 25% shipping
  (iii) 15% on system start-up and
  (iv) Balance on system commissioning
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• Interest. Buyer shall pay interest on all late payments at the lesser of the rate of one and a half (1.5%) percent per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, legal fees on a full indemnity basis. In addition to all other remedies available under these Terms and Conditions or at law (which Seller does not waive by the exercise of any rights hereunder). Seller shall be entitled to suspend the delivery of any Goods or performance of any Services, and re-possess the Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for 20 days following written notice thereof.
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• Where the Buyer has not paid the full price of the Goods and Services to Seller prior to delivery, the Buyer hereby grants to Seller a purchase money security interest in the Goods described in the Order Documents, to secure payment of the Buyer’s obligations to Seller. Buyer agrees to reasonably assist Seller in protecting Seller’s security interest and Buyer agrees that a filing of a photocopy of this document shall serve as a financing statement. The security interested granted under this provision constitutes a purchase money security interest under the British Columbia Personal Property Security Act.
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• Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller's breach, bankruptcy or otherwise.

5. Delivery of Goods and Performance of Services

• Delivery. All delivery dates are approximate unless otherwise stated in writing. Seller will use reasonable efforts to meet the delivery dates quoted to Buyer, however, Seller assumes no liability and shall not be liable for any delay, loss or damage, regardless of cause.
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• Shipping Terms. Unless otherwise agreed in writing by the parties, the Goods shall be delivered in accordance with EXW (Inco Terms 2020) at Seller’s facility in Vancouver, Canada or Brisbane, Australia (the "Delivery Point"), within Seller’s discretion, at which time risk of loss of the Goods shall pass to the Buyer.  using Seller's standard methods for packaging and shipping such Goods. Seller reserves the right to make partial shipments and to ship the goods as they become available. Title for the Goods shall remain with Seller until full payment for the Goods is received in accordance with these Terms and Conditions. The Goods or Service, if available in electronic media format, including but not limited Software and manuals may be available for the Buyer to receive electronically.

6. Inspection and Non-Conforming Goods

• Inspection. Buyer shall inspect Goods received under these Terms and Conditions within ten (10) days of receipt (the “Inspection Period”) of the Goods and either accept or, if any Goods do not satisfy the specifications (in quality or quantity) of the requested Goods as defined in the Order Documents (“Non-Conforming Goods”), reject these Goods. Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Non-Conforming Goods during the Inspection Period and furnishes written evidence or other documentation as reasonably required by Seller confirming the number and/or nature, as applicable, of the Non-Conforming Good. If Buyer timely notifies Seller of any Non-Conforming Goods, Seller shall determine, in its sole discretion, whether the Goods are Non-Conforming Goods.
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• Rejection of Non-Conforming Goods. If Seller determines that the Goods are Non-Conforming Goods, Seller may (i) replace the Non-Conforming Goods with conforming Goods, or (ii) refund the Price for the Non-Conforming Goods. The Buyer shall ship, at Seller’s expense and approved carrier under EXW 2020, all Non-Conforming Goods to Seller’s facility located at Richmond, BC Canada. If Seller exercises its option to replace Non-Conforming Goods, Seller shall, after receiving the shipment of Non-Conforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point (as per the purchase order).
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• Limited Remedies. Buyer acknowledges and agrees that the remedies set forth in Section 6(b) are Buyer's exclusive remedies for the delivery of Non-Conforming Goods. Except as provided under Section 6(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.

7. Limited Warranty

• a. Limited Warranty.  Seller warrants that for:
• • i. Hardware supplied under the Agreement:
  • • for twelve (12) months from Start-Up: (1) shall be free from defects in materials and workmanship, (2) shall conform to all applicable specifications and descriptions set-out herein and in the Documentation; and (3) be fit for the intended purposes and operate as described in the Documentation;
    • does not infringe any third-party intellectual property rights; and
    • are new and do not contain used or reconditioned parts, unless otherwise expressly agreed to.
  • ii. Software supplied under the Agreement:
  • • If no System Support Agreement is entered into with Seller, Seller will provide support for thirty (30) days from Start-Up and Seller will only provide bug upgrades until the release of the next major version.
  • iii. Services supplied under the Agreement: the Buyer shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this agreement.
• For the purposes of these Terms and Conditions, “Start-Up” refers to the date when all the fleet hardware and software as purchased is installed, including the core system application, and the system is operating and providing benefits for 72 hours without failure. Minor services, software provisions, or functionality may be outstanding and identified for completion prior to commissioning.
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• b. Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTIONS 7(a), SELLER MAKES NO CONDITION OR WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING ANY (a) CONDITION OR WARRANTY OF MERCHANTABILITY; (b) CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. SELLER MAKES NO WARRANTY THAT THE GOODS WILL MEET BUYER’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE.
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• c. Third Party Products. Products manufactured by a third party ("Third Party Product") may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Goods. Third Party Products are not covered by the warranty in Section 7(a). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS, CONDITIONS, OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) CONDITION OR WARRANTY OF MERCHANTABILITY; (b) CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) CONDITION OR WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
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• d. Warranty Procedure. The Buyer must give written notice of the defective Goods or Services, as the case may be, reasonably described, to Seller within ten (10) days of the time when Buyer discovers or ought to have discovered the defect; and (i) if applicable, Seller shall be given a reasonable opportunity after receiving the notice of breach of the warranty set forth in this Section 7(d) to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller's place of business at Seller's cost for the examination to take place there; and (ii) Seller reasonably verifies Buyer's claim that the Goods or Services are defective. Failure to follow this procedure will render the warranty null and void.
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• e. Remedies. Subject to Section 7(d), Seller shall repair or at Seller’s option replace the defective Products, provided that if the Reseller wishes for Seller to repair or replace the Product, Reseller provides WENCO with: (i) written notice of the defect to be  received within limited warranty period as set forth in Section 7(d), or by such shorter time as may be guaranteed by the manufacturer of goods supplied but not manufactured by WENCO, and (ii) all information WENCO reasonably requests to resolve ‎the reported failure, including sufficient information to enable WENCO to recreate ‎such failure. The return of faulty goods under warranty to WENCO shall be at the responsibility and cost of WENCO. The cost of return shipment of the repaired or replacement goods under warranty from WENCO to the Reseller shall be borne by the Reseller.  The remedies set forth in this Section 7(e) are the Buyer’s sole remedies and WENCO’s sole ‎liability under the limited warranty set forth in Section 7.
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• f. Breach of Warranty. The warranty set forth in Section 7(a) does not apply and becomes null and void if the ‎Buyer: (i) breaches any material provision of the Agreement, including Section 7(d), (ii) or any other ‎person provided access to the Goods or Services whether or not in violation of this ‎Agreement, (iii) installs or uses purchased software on or in connection with any hardware or ‎software that is not specified in documentation provided by Seller or ‎expressly authorized by Seller in writing; (iv) modifies or damages the Goods; or ‎‎(v) misuses the Goods, including any use of the hardware or software other than as specified in ‎the documentation provided by Seller or expressly authorized by Seller in writing.

8. Licensed Software

• Licensed Software. All software purchased from Seller is provided subject to a license agreement or license terms (“License Agreement”) and Buyer agrees to be bound by said License Agreement. Seller’s software is licensed according to the License Agreement provided with said software and incorporated herein by reference. Buyer acknowledges that any and all licenses granted shall only provide Buyer with a right of limited use. In the absence of specific License Agreement accompanying software delivered or otherwise provided to Buyer, said software shall be licensed to Buyer on Seller’s standard software license terms and conditions, with such terms and conditions available upon request.

9. Indemnity

• Buyer Indemnity. To the fullest extent permitted by law, Buyer shall indemnify, defend and hold Seller, including Seller’s officers, directors, agents, employees, subsidiaries, affiliates, successors and assigns, harmless from any and all claims, actions, proceedings, liabilities, losses, damages, costs, or expenses (including legal fees) arising from: (a) Buyer’s modification(s) of and/or addition(s) to the Goods or Services provided hereunder; (b) Buyer’s omissions, misrepresentations, or negligence; (c) misuse or abuse of the Goods (including use of Goods outside the scope of Seller’s documentation); (d) custom Goods or Services provided to Buyer based on Buyer specifications; and (e) Buyer’s breach of these Terms and Conditions.

10. LIMITATION OF LIABILITY

• IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS AND CONDITIONS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE,  IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED TWO (2) TIMES THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS AND SERVICES SOLD HEREUNDER OR FIVE HUNDRED THOUSAND DOLLARS $500,000), WHICHEVER IS LESS.
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• The limitation of liability set forth in Section 10(a) shall not apply to liability resulting from Seller's gross negligence or willful misconduct.

11. General

• Insurance. During the term of this Agreement and for a period of two (2) years thereafter, Buyer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than two million dollars ($2,000,000.00) with financially sound and reputable insurers. Upon Seller's request, Buyer shall provide Seller with a certificate of insurance from Buyer's insurer evidencing the insurance coverage specified in these Terms and Conditions. Buyer shall provide Seller with sixty (60) days' advance written notice in the event of a cancellation or material change in Buyer's insurance policy.
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• Compliance with Law. Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under these Terms and Conditions. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes anti-dumping or countervailing duties or any other penalties on Goods. The Buyer has agreed to in writing or hereby agrees to comply with Wenco’s Compliance Commitment/Agreement, provided by Seller.
  
  
• Termination. In addition to any remedies that may be provided under these Terms and Conditions, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement and such failure continues for ten (10) days after Buyer's receipt of written notice of nonpayment; (b) has not otherwise performed or complied with any of these terms of the Agreement, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, liquidation, reorganization, or assignment for the benefit of creditors.
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• Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
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• Intellectual Property. Buyer acknowledges and agrees that Seller owns or licenses from third parties all rights, title and interest in and to the Goods and Services provided to the Buyer pursuant to the Agreement, including without limitation, any patent, patent applications, copyrights, trademarks, trade secrets, derivative works and any other intellectual property rights conceived of or developed as may now exist or hereafter come into existence recognized under any state, country, territory or international treaty (“Intellectual Property”). Nothing contained in these Terms and Conditions shall be construed as an assignment or grant to Buyer of any right to Seller’s Goods and Services except for the limited right to use the Goods and Services in compliance with these Terms and Conditions. The Buyer agrees that as monetary damages may be inadequate remedy for breach of Seller’s intellectual property rights, the Seller is entitled to see injunctive relief, in addition to other remedies available at law, equity or otherwise including reasonable legal fees and costs incurred in obtaining such injunctive relief and such damages as a court of competent jurisdiction shall award.
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• Confidential Information.  All non-public, confidential or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
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• Processing of Personal Information. To the extent Seller processes data of the Buyer containing Personal Information of individuals, Seller will process such Personal Information in accordance with applicable data privacy laws and Data Processing Addendum (“DPA”), available at Seller’s website as may be updated from time to time. The parties agree that the DPA is effective between them as of the date hereof and is supplemental, applicable to, and incorporated into the Agreements. Capitalized terms in this subsection not otherwise defined herein have the meanings set forth in the DPA.
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• Audit. Seller reserves the right to conduct an audit of the Buyer to ensure compliance with its requirements, and applicable laws.  In the event that Seller identifies any potential violations, Seller shall have the right to refuse the sale of Goods and Services to Buyer. The Buyer to cooperate with Seller in all compliance checks and to provide any necessary information and documentation, and do all necessary acts to ensure compliance, including the protection of Wenco’s intellectual property.
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• Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such party's ("Impacted Party") failure or delay is caused by or results from the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, tsunami, fire, earthquake, explosion; (c) epidemics and pandemics; (d) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (e) government order, law or actions; (f) embargoes or blockades in effect on or after the date of this Agreement; (g) national or regional emergency; (h) strikes, lockouts, labour stoppages or slowdowns, labour disputes, or other industrial disturbances; (i) shortage of adequate power or telecommunications or transportation facilities; (j) failure of any governmental or public authority to grant a necessary license or consent; (k) other  events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice as soon as practicable after the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of sixty (60) consecutive days following written notice given by it under this Section 12, the other party may thereafter terminate this Agreement upon five (5) days' written notice.
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• Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
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• Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
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• No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms and Conditions.
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• Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein without giving effect to any choice or conflict of law provision or rule (whether of the Province of British Columbia or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Province of British Columbia. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
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• Jurisdiction. Without restricting Seller’s ability to seek injunctive relief pursuant to Section 12(e) from any court of competent jurisdiction, each Party irrevocably submits to the exclusive jurisdiction of the courts of British Columbia, Canada to settle any dispute or claim that arises out of connection with these Terms and Conditions, its subject matter or formation (including non-contractual disputes or claims).
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• Notices. Each Party shall deliver all notices, requests, consents, claims, demands, waivers, and other communications under the Agreement (other than routine communications having no legal effect) (each, a "Notice") in writing and addressed to the parties at the addresses set forth on the face of the Order Documents (or to such other address that may be designated by the receiving party from time to time in accordance with this Section). Notices will be conclusively deemed validly and effectively given: (a) on the date of receipt, if delivered by personally, or by a nationally recognized same day or overnight courier (with all fees prepaid); (b) upon the sender's receipt of an acknowledgment from the intended recipient (such as by the "read receipt" function, as available, return email or other form of written acknowledgment), if delivered by email; or (c) on the fifth (5th) day after the date mailed by certified or registered mail or by the Canada Post Corporation, return receipt requested, postage prepaid.
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• Severability. If any term or provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
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• Survival. Provisions of these Terms and Conditions which by their nature should apply beyond their terms will remain in force after any termination or expiration of these Terms and Conditions including, but not limited to, the following provisions: Section 12(a) (Insurance), Section 11(b) (Compliance with Laws), Section 11(e)Intellectual Property, Section 11(f) Confidential Information, Section 11(h) Audit, Section 11(m) Governing Law), Section 11 (n) Jurisdiction.