Humber Aggregates & Soil Mixtures Ltd.
Terms and Conditions of Sale
1. Agreement
These terms and conditions govern every purchase of aggregate products from Humber Aggregates & Soil Mixtures Ltd. (“Supplier”) by any individual or entity (each, a “Customer”) and, with any issued quotation, purchase order, delivery ticket, credit agreement, and other documents referenced herein, form an agreement between Supplier and Customer to provide the specified aggregate products (“Product”) (collectively the “Agreement”). Any proposal or attempt to vary the terms of this Agreement is expressly rejected by Supplier, unless signed by an authorized representative. Customer’s signature on any part of the Agreement, request for Product, or acceptance of Product each constitute Customer’s acknowledgement that it is bound by the Agreement.
2. Prices and Payment Terms
Once accepted by Customer, the price on the Agreement, including for Product, freight or otherwise, is subject to change by Supplier upon immediate notice. Unless specifically noted, the price on the Agreement does not include taxes, bonds, or other government levies, tariffs or duties (including, if applicable, sales tax, or carbon tax), delivery charges, fuel surcharges, cancellation fees, environmental fees, charges due to Customer’s delays, actions or inactions, or evening or weekend charges, all of which, if applicable, are payable by the Customer. Customer with credit terms must pay all invoices on the 30th day of the month following the date of delivery. Supplier reserves the right to change Product pricing. Late payments will accrue interest at the rate of 2.5% per month (30% per annum) and Customer shall be responsible for all of Supplier’s expenses (including legal fees, on a substantial indemnity basis) incurred in collecting any unpaid amounts. Notwithstanding any grant of credit to a Customer by Supplier, if at any time the financial responsibility of the Customer becomes unsatisfactory to Supplier or the Customer is in default to Supplier or its affiliates under this or any other agreement, Supplier reserves the right to withhold further Product or require advance cash payment or satisfactory security prior to supplying any further Product. The Customer shall make no set-off or deductions (including those for alleged damages) from payments due hereunder. Any charges or fees imposed, including for fuel, environmental matters, or TOARC, are not represented to be a direct offset or pass through of the Supplier’s actual costs to service any individual account, but are intended to address its overall costs, unless noted otherwise.
3. Volume, Loading, Pick-up, and Delivery
The standard measurement unit of Product shall be the metric ton, unless otherwise specified in the Agreement. Any claim for shortage of Product must be made to Supplier within 24 hours after receipt of Product by Customer, and, in such instance, the quantity of loaded or delivered Product that is shown on Supplier’s delivery ticket or scale receipt shall be conclusive evidence of the quantity of Product actually loaded or delivered. Supplier does not guarantee the availability of Product. Fees will apply to order cancellations depending on when the cancellation notice is received. If an order is picked up by Customer or its agent, then Customer acknowledges that Supplier’s sites may include heavy industrial activity or other hazardous conditions. Customer and any agent must, when on the Supplier’s site or when handling the Product, comply with all applicable laws, ordinances, by-laws, rules, and regulations, including those regarding safety, and, to the extent they are more restrictive, all of Supplier’s rules, policies, and instructions. Customer will ensure that all its employees and agents entering Supplier’s site are properly qualified and wear all required safety apparel. Supplier reserves the right to refuse entry to its site of any vehicle or person it deems unsafe. If Supplier agrees to deliver Product, additional delivery charges shall apply, with trucking rates based on standard load volumes; additional charges based on customized load sizes and delivery location may apply. Vehicle availability is not guaranteed. Further, Customer shall provide suitable access to the point of delivery and Supplier reserves the right to stop deliveries until, in its discretion, such access is provided.
4. Limitation of Remedies
The exclusive remedy of Customer or any third party against Supplier for all claims related to warranty or product quality (whether the claims arise in tort, contract, or any other theory of liability), for any loss or damages arising out of, connected with or resulting from the Product or this Agreement, is, at Supplier’s discretion, (i) replacement of the Product or (ii) credit for the purchase price paid for the Product, and shall in no event cost Supplier more than the amount paid to Supplier for the Product. Without waiving the foregoing limitations, each of the Supplier and Customer shall defend, indemnify and hold the other harmless from any claims, causes of action, liabilities, losses, costs, taxes, penalties, attorneys’ fees, expenses or otherwise, resulting from property damage, personal injury, or death, to the extent caused by its negligence or willful misconduct. Notwithstanding anything else herein, including the Supplier’s indemnification obligations, Supplier shall not be liable to Customer or any third party for any lost profits, indirect, consequential, liquidated, punitive, or similar types of damages, whether the liability, loss, or damages arise in tort, contract, or any other theory of liability.
5. Technical Information and Assistance
Any technical information or assistance provided by Supplier or its agents, or oral statements made by Supplier or its agents, about the Product(s), is given without warranty or specification, and accepted at the Customer’s risk.
6. Risk
Title to and risk of loss of the Products shall pass to the Customer upon Customer’s or its agent’s arrival on Supplier’s site, or delivery to the Customer by Supplier or its agent, as applicable.
7. Force Majeure
Supplier may delay performance occasioned by events beyond its control without incurring liability for such delay when such delay is caused by a) acts of God or the public enemy, fire, explosion, epidemics, acts of war or terrorism, perils of the sea, flood, drought, war, riot, sabotage, vandalism, accident, breakdown, labour dispute, embargo or other casualty; b) compliance with any order, action, direction or request of any government authority; c) shortage of labour or materials; or d) any other circumstances that are beyond its reasonable control, including Customer’s acts or omissions. Supplier will accept no back-charges for any construction delays experienced by Customer or any third party.
8. Confidentiality
The Agreement is intended for Customer’s use only. The contents of the Agreement are confidential and, unless compelled by law or judicial process, shall not be shared with third parties without Supplier’s written consent.
9. Warranty
All products are sold as is, where is and are final sale. No returns, refunds, or credits will be provided once product is loaded, picked up, dispatched, or delivered, except where Supplier confirms in writing that the product did not materially conform to the specifications on the applicable quote/order/delivery ticket. Any claim for non-conforming product or shortage must be submitted in writing within 24 hours of delivery/pick-up. Supplier’s scale/delivery ticket is conclusive evidence of quantity, absent manifest error. Supplier’s sole obligation and Customer’s exclusive remedy is, at Supplier’s option, replacement of the non-conforming portion or a credit for the purchase price paid for that portion. All other warranties are disclaimed, including merchantability and fitness for a particular purpose.
10. Miscellaneous
Failure by Supplier to exercise any of its rights hereunder shall not operate as a waiver of such rights. This Agreement supersedes all other agreements, written or oral, regarding the subject matter of this Agreement, and no prior or subsequent understanding, agreement, term, condition or trade custom that conflicts with or is supplementary to this Agreement is binding on Supplier. The term “including” means “including without limiting the generality of the foregoing.” This Agreement is not assignable by the Customer. Customer has read and agrees to abide by the Supplier’s Anti-Corruption Commitments for Customers, Anti-Corruption Policy and Code of Conduct, each of which is available upon request. This Agreement shall be construed and enforced in accordance with the laws of the Province where the Product was extracted, and, in the event of any disputes arising out of this Agreement, the parties submit to the courts having jurisdiction over such site. Provisions of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement. It is the express wish of the Customer that this Agreement be drafted in English. Le client a exigé que la présente convention soit rédigée en langue anglaise.
