The title to and ownership of new equipment and hardware shall remain with Liburdi Engineering Ltd. (hereinafter referred to as LEL) until Liburdi Engineering 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 LEL 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 LEL. Title and right of possession of any equipment and hardware supplied for further processing or integration shall remain with LEL 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 LEL 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 Dundas, Ontario, Canada and do not include shipping charges. LEL 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 LEL 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.
LEL 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 LEL suppliers to meet their contractual obligations, or, without limitation of the foregoing, any other cause beyond the reasonable control of LEL and the receiving of the product by the Customer shall constitute a waiver of all claims for loss or damage due to delay.
LEL warrants to Customer that all work performed by LEL 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, LEL shall, at its option, repair or replace the defective part(s) to make good such defects which are shown to the reasonable satisfaction of LEL to be due to LEL workmanship. On expiration of the warranty period, any liability of LEL shall terminate. The obligation of LEL 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 LEL in carrying out its obligation under this Warranty shall be performed at LEL Dundas plant unless otherwise agreed between the parties. LEL 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 LEL Dundas plant. If it is not practical to remove such defective units or part(s) thereof from the site where discovered to be defective, LEL shall use its best efforts to perform its obligations hereunder at such site provided, however the Customer shall pay LEL for all reasonable travelling and living expenses required in connection therewith and also the cost for shipping any replacement material required from LEL Dundas 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 LEL Dundas plant. The obligations of LEL 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 LEL and is expressly in lieu of all other conditions and warranties, expressed, implied or statutory.
LEL 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 LEL 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.
LEL 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 LEL 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 LEL from any demands, claims or causes of action relating to the use of the equipment and hardware supplied by LEL including legal expenses incurred by LEL.
Original designs and all technical information supplied by LEL are "CONFIDENTIAL", "TRADE SECRETS" and "PROPRIETARY" to LEL. Such design may or may not be covered by "PATENT" and in all cases ownership of the design and proprietary information remains with LEL and cannot be divulged to third parties, copied or MANUFACTURED without written consent from LEL.
All software and control logic provided with the equipment and hardware is proprietary to and the property of LEL. The customer is granted a non transferable single users license for use of the software only in conjunction with the equipment purchase from LEL.
Any amendments to the terms set out herein between LEL and the Customer, or the addition of any terms not otherwise set herein, shall be in writing and acknowledged thereon by both LEL and the Customer.
The terms of this contract between LEL 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.