Pratt & Whitney Canada Corp. and/or its designated affiliate ("P&WC") will deliver the technical publications covered by the order ("Deliverables") FCA (Incoterms 2010) at P&WC's facility in Canada. Title and risk shall pass to Buyer upon delivery.
Buyer is responsible for all taxes, duties and other charges of any nature whatsoever, including interest and penalties thereon, arising from the sale, delivery or use of the Deliverables or related services under the order, and will reimburse P&WC for any such charges P&WC may be required to pay directly to any government authority.
P&WC may at any time make changes to the Deliverables or related services which do not affect price. No other modification of the order is binding unless agreed to in writing by both parties.
P&WC is not responsible for any failure or delay in performance resulting from causes beyond P&WC's reasonable control. These may include, but are not limited to, acts of government, court order, civil unrest, sabotage, adverse weather conditions, labor problems and shortage of materials or services. P&WC will give timely notice to the Buyer of any such event and shall use reasonable efforts to avoid or remove the cause and resume performance with minimum delay. The time for delivery will be extended accordingly.
P&WC warrants that the most recent release of Deliverables conforms to the current standard practices of P&WC, and P&WC otherwise provides Deliverables "AS IS" with no further warranty whatsoever. P&WC's liability under this warranty is limited to the replacement of Deliverables returned to P&WC within thirty (30) days after delivery. For the replacement of defective Deliverables under this warranty, the defective Deliverables must be returned to P&WC, postage prepaid, and include proof of payment, if any.
The foregoing warranty and remedy are given by P&WC and accepted by buyer in place of all other warranties and remedies, whether express, implied or statutory terms, representations or conditionsincluding without limitation any obligation or liability of P&WC in contract or tort, or any warranty of title, of quiet enjoyment, of quiet possession, of non-infringement, of merchantability, of fitness for a particular purpose, of reliability or availability, of accuracy or completeness of responses, of results, of workmanlike effort, or of lack of negligence, all with regard to deliverables, and any information and data contained therein or derived therefrom, and the provision of or failure to provide support or other services or information therethrough or arising out of the use thereof. For greater certainty, in no event shall P&WC be liable for any special, indirect, incidental or consequential damages arising out of or in connection with either a breach of such warranty, or any tortious or negligent act or omission by P&WC, or any exemplary, punitive or other damages not attributable to acts of P&WC. Special, incidental, indirect or consequential damages include, without limitation, econonic loss, loss or damage to any property or person or any other exemplary, punitive or similar damages. No variation or extension of the foregoing warranty or associated remedies shall be binding unless in writing and signed by a duly authorized representative of P&WC. In no event shall P&WC's liability of any type exceed the payment by buyer to P&WC in connection with this order, whether such liability is based in contract, strict liability, fault, tort, or any other asserted right.
TERMS OF PAYMENT
The Buyer's payment terms shall be "Cash Before Shipment" pending a credit review to establish payment terms. Upon credit approval by P&WC, such payment terms shall be net thirty (30) days from the date of the invoice. Upon receipt of the results of the credit verification, P&WC shall indicate to the Buyer in writing as to what the applicable terms of payment shall be. In certain instances, notwithstanding the payment terms, a deposit may be required for the Deliverables or related services and/or prior to shipment. The amount of the said deposit shall be determined by P&WC at its sole discretion. Overdue accounts are subject to interest calculated and compounded monthly at the rate of fifteen percent (15%) per annum or United States Prime Rate, plus five percent (5%) per annum, whichever is greater, without exceeding the maximum rate allowed per applicable law. Buyer shall not delay payment for the Deliverables or related services pending, or based on the results of, its inspection or acceptance.
Buyer's order constitutes acceptance of all the terms and conditions hereof, which shall apply to the exclusion of any terms and conditions contained in any order or communication of Buyer not specifically agreed to in writing by P&WC. P&WC's acceptance of Buyer's order for the purchase of Deliverables and related services is expressly made conditional on Buyer's acceptance of the terms contained herein.
Any shipment discrepancy or receipt against Buyer's order must be reported in writing to P&WC within thirty (30) days of the date of shipment. P&WC shall not be responsible for any discrepancy reported after thirty (30) days.
Buyer agrees to comply with all applicable Canadian and US export and import laws and regulations. Performance hereunder is subject to the receipt of any necessary governmental export or import license, permit or similar authorization ("Authorization") under all applicable export, import and customs laws, including Canadian and U.S. export, import and customs laws ("Export Law"), affecting the goods or services and any associated technical data provided hereunder or any part thereof. No U.S. International Traffic in Arms Regulations ("ITAR") controlled goods, services or technical data shall be provided to P&WC pursuant hereto. Notwithstanding any other provision, P&WC shall have no liability (including no obligation to provide substitute goods or services or technical data), nor shall it be in breach, if for any reason any government fails to issue or renew or cancels any Authorization or delays in issuing or renewing any Authorization affecting any goods or services or any associated technical data provided hereunder or any part thereof.
Export Law prohibits the export of goods, or provision of services to embargoed or sanctioned countries or to those entities and individuals that are restricted or denied parties ("Prohibited Parties"). Except as specifically authorized by Export Law, goods or services purchased from P&WC may not be re-exported, resold, or otherwise disposed of: (1) to any country not approved for re-export as brought to the Buyer's attention by means of a bill of lading, commercial invoice, or any other means; or (2) to any person if the Buyer knows, or has reason to know, that it will result directly or indirectly, in disposition contrary to the obligations made in these conditions of sale or contrary to the Export Law. Specifically, pursuant to Supplement 2 to 15 CFR §749(o)(3) of the U.S. Export Administration Regulations ("EAR"), goods or services purchased from P&WC may not be re-exported to a country listed in Country Group E:1 (Country Groups are listed in Supplement 1 to Part 740 of the EAR).
P&WC may terminate the order at any time by written notice to Buyer if Buyer fails to pay any amount when due or if Buyer becomes insolvent or performs or permits any act of bankruptcy, liquidation, reorganization or if a receiver, trustee or custodian is appointed to Buyer or a substantial part of Buyer's assets. In addition, P&WC may terminate the order if Buyer is in default under the terms of any other agreement or order with P&WC or any affiliated company of P&WC. On termination, P&WC shall have no further obligation to Buyer under the order and Buyer will reimburse P&WC's termination costs, including, without limitation, a reasonable allowance for profit as well as material, labour and administrative fees. Buyer shall reimburse P&WC for all attorneys' fees and other expenses incurred by P&WC in recovering any sums due from Buyer regardless of whether the order has been terminated or not. The Buyer may not terminate the order, otherwise he is liable for damages caused to P&WC as a result of the termination including, without limitation, costs and expenses as well as for the value of the work performed by P&WC before termination of the order including, without limitation, a reasonable allowance for profit.
Absent P&WC's prior written consent, any assignment or attempted assignment shall be wholly void, invalid and totally ineffective for all purposes.
LANGUAGE AND GOVERNING LAW
Both parties have agreed that these conditions be written in the English language only. Les parties ont convenu que les présentes soient rédigées en anglais seulement. This contract shall be governed by and interpreted in accordance with the substantive and procedural laws in force in the Province of Ontario, Canada. Any provisions of such laws i) requiring the application of laws of another jurisdiction to all or part hereof; or ii) regarding choice of law, shall not apply. Pursuant to Article 6 of the United Nations Convention on Contracts for the International Sale of Goods, the parties exclude the application of the provisions of said convention to all transactions relating hereto.