For orders placed to and shipped from Canada:
These terms and conditions (the “Agreement”) govern the sale of products (“Products”) by Boreal Solar Inc. (“Boreal Solar”), whether by phone, fax, mail, or other means.
(1) Prices
All pricing quoted is in Canadian Dollars and (U.S. Dollars where explicitly specified). Prices that Boreal Solar quotes to Customer are valid for 14 days unless otherwise specified. Prices otherwise displayed by Boreal (for example on its price list) are subject to change without notice. Typographical errors may occur from time to time. Prices do not include any federal, provincial or local taxes, or other governmental charges, which, when applicable, will be invoiced in addition to the applicable price. Applicable sales taxes will be charged on all orders according to the jurisdiction where product is shipped or picked up from.
(2) Payment and Credit Policy
Available payment terms are (a) pre-payment with order by cheque, money order, wire, or EFT; (b) VISA or MasterCard; or (c) other payment arrangements as mutually agreed by the parties. Boreal Solar will consider granting credit to Customers in Boreal Solar’s sole discretion. Contact Boreal Solar to request a credit application. Boreal Solar reserves the right to change credit and payment terms extended to Customers in Boreal Solar’s sole discretion at anytime. Boreal Solar reserves the right to require full payment in advance of shipping Products (including but not limited charging a Customer’s credit card where that method of payment has been selected), for example in the event that a third party will be shipping the Products directly to Customer (a “drop shipment”). All late payments shall be charged interest computed on a daily basis from the due date until paid in full at the rate of two percent (2.0%) per month (24% per annum) or the maximum rate permitted by law, whichever is less.
On delinquent accounts, Boreal Solar shall not be obligated to continue performance under any agreement with Customer. Customer agrees to pay Boreal Solar’s costs of collection (including reasonable legal and professional fees) incurred in collecting any overdue amounts. The acceptance and deposit by Boreal Solar of any payment from Customer or its affiliates, by check, wire transfer or any other means, which payment contains any reference to the effect that such payment constitutes 'payment in full' or 'in full satisfaction', shall not constitute an accord and satisfaction or a waiver by Boreal Solar of any right(s) it possesses, in law or equity, to collect payment in full from Customer.
(3) Shipping and Handling Fees
Products are shipped F.O.B. shipping point of origin with shipping costs and handling fees charged to Customer. Boreal Solar’s Canadian Shipping Policy in effect at the time of order placement shall govern specific shipping methods, costs, and handling fees and is available by contacting Boreal Solar sales.
(4) Order Receipt and Acceptance
Customer shall each inspect and accept or reject each shipment upon receipt. Such acceptance or rejection shall only apply to (a) the completeness of the shipment and(b) reasonably apparent visible damage to the Products(or the packaging for such Products). Customer must notify the shipping carrier as soon as possible of any reasonably apparent problems with the shipment or Products, and notify Boreal Solar in writing of non conforming shipments or Products within 72 hours of receipt. Customer’s written notice to the shipper carrier should be on the proof of delivery form at the time of receipt if one is presented by the shipping carrier. FAILURE TO NOTIFY BOTH THE SHIPPER AND BOREAL SOLAR SHALL BE DEEMED AN UNQUALIFIED ACCEPTANCE AS TO THE CONTENTS OF THE SHIPMENT. THEREAFTER, CUSTOMER’S SOLE RECOURSE FOR REASONABLY APPARENT VISIBLE DAMAGE CONSTITUTING NONCONFORMING PRODUCTS SHALL BE UNDER THE WARRANTY PROVISIONS SET FORTH BELOW IN SECTION 6.
(5) Returns Policy
No merchandise may be returned without prior written authorization from Boreal Solar.
(6) Warranty & Repairs
All Products covered by this Agreement will be warranted per the terms of the applicable manufacturer’s standard warranty (if any) provided with the Products, and will be subject to the manufacturer’s installation instructions. The warranty (if any) may be to the end user and not to Customer. Warranty repairs must be performed by the manufacturer.
Boreal Solar makes no warranties or representations as to the accuracy or completeness of system drawings. Customer assumes all risk and liability with regards to systems installed according to such drawings. UNLESS BOREAL SOLAR HAS MANUFACTURED A SPECIFIC PRODUCT, BOREAL SOLAR MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING PRODUCTS. TO THE FULLEST EXTENT PERMITTED BY LAW, BOREAL SOLAR DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Many provinces and states and localities have codes and regulations governing sales, construction, installation, and/or use of products for certain purposes, which may vary from those in neighbouring areas. Boreal Solar cannot guarantee compliance, and cannot be responsible for how the product is installed or used. Before purchase and use of a product, please review the product application, and national and local codes and regulations, to be sure that the product, installation, and use will comply with them.
(7) Security Interest
Boreal Solar retains a security interest in the Products delivered to Customer, and in their accessories, replacements, accessions, proceeds and products, including accounts receivable (collectively,the“Collateral”) to secure payment of all amounts due under this Agreement. If Customer fails to pay any amount when due, Boreal Solar shall have the right to repossess and remove all or any part of the Collateral from Customer, but not from Customer's customers. Any repossession or removal shall be without prejudice to any other remedy of Boreal Solar hereunder, at law or in equity. Customer agrees, from time to time, to take any act and execute and deliver any document(including, without limitation, financing statements)reasonably requested by Boreal Solar to transfer, create, perfect, preserve, protect and enforce this security interest.
(8) Statute of Limitations
No action by Customer may be brought at any time more than twelve (12) months after the facts occurred upon which the cause of action arose.
(9) Limitations of Liability
THE LIABILITY OF BOREAL SOLAR HEREUNDER FOR ANY AND ALL CLAIMS SHALL NOT EXCEED THE SUM OF CUSTOMER'S PAYMENTS FOR THE PRODUCTS THAT ARE THE SUBJECT OF THE DISPUTE. BOREAL SOLAR SHALL NOT BE LIABLE FOR PROFITS, INCIDENTAL DAMAGES, LOSS OF TIME, OR OTHER LOSSES INCURRED BY CUSTOMER OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR PRODUCTS SOLD HEREUNDER.
(10) Governing Law; Venue
The construction, interpretation and performance of this Agreement and all transactions under it shall be governed by the laws of the Province of Ontario. Boreal Solar and Customer specifically exclude the application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement. The parties here to agree that any suits, actions or proceedings arising out of this Agreement that may be instituted by any party hereto shall be instituted only in the provincial or federal courts in the city of Calgary, Alberta, and the parties hereto do hereby consent to the jurisdiction of those courts and waive any objection which they may now or hereafter have to venue of those suits, actions or proceedings.
(11) Force Majeure
Except for the payment of amounts due, neither party shall be held responsible for any delay or failure in performance of any part of this Agreement to the extent that delay or failure is caused by circumstances beyond its control (a “Force Majeure”), including, but not limited to, fire, flood, explosion, war, strike, embargo, government requirement, civil or military authority, act of God, act or omission of carriers or other similar causes. If any Force Majeure occurs, the party delayed or unable to perform (the “Delayed Party”) shall give immediate notice to the other party (the “Affected Party”), and the Affected Party, upon giving prompt notice to the Delayed Party, shall be excused from performance under this Agreement for the duration of the Force Majeure; provided, however, that the Affected Party shall take all reasonable steps and cooperate with the Delayed Party to avoid or remove the cause of non-performance and shall promptly resume performance hereunder when the Delayed Party resumes performance. If the Delayed Party cannot remove the cause of non-performance within sixty (60) days, the Affected Party may terminate this Agreement.
(12) Non-Waiver
No course of dealing or failure of either party to strictly enforce any term, right or condition of this Agreement shall be construed as a waiver of that term, right or condition.
(13) Order of Precedence
This Agreement supersedes any additional or different terms and conditions asserted or provided by Customer, including but not limited to different terms and conditions in Customer’s form of purchase order. Boreal Solar’s acceptance of purchase orders is conditioned upon Customer’s acceptance of these terms and conditions, irrespective of whether Customer accepts these terms and conditions by a written acknowledgment, by implication, or acceptance and payment of goods ordered hereunder. Boreal Solar’s failure to object to provisions contained in any communication from Customer varying the terms herein shall not be deemed a waiver of the provisions herein. Neither Boreal Solar’s commencement of performance nor delivery shall be deemed or constituted as acceptance of any additional or different terms and conditions of Customer. Boreal Solar reserves the right to modify any aspect of this Agreement in its sole discretion, provided that orders placed with Boreal Solar will be governed by the Agreement as it existed at the time that such order was placed.
(14) Entire Agreement
This Agreement, including the Boreal Solar documents and policies incorporated herein by reference, shall constitute the entire Agreement between the parties with respect to the subject matter of this Agreement and shall not be modified or rescinded. The provisions of this Agreement supersede all prior oral and written quotations, communications, agreements, and understandings of the parties with respect to the subject matter of this Agreement.
