These Terms and Conditions of Sale (the “Terms and Conditions”) together with the Sales Order and/or Packing Slip attached hereto (the “Confirmation”) constitute the sole and entire agreement between Brangus Oil Tools Inc. (“Brangus Oil Tools”) and the customer identified on the Confirmation (the “Customer”) for the equipment, parts, and/or materials to be sold to the Customer by Brangus Oil Tools pursuant to the Confirmation (the “Equipment”). Any additional or inconsistent terms or conditions, including any which may be contained in terms and conditions appended to any purchase order issued by the Customer with respect to the Equipment, are expressly rejected by Brangus Oil Tools. Without limiting the foregoing, upon the acceptance by the Customer of the delivery of the Equipment, or the collection thereof by the Customer or its agent, the Customer shall be conclusively deemed to have accepted these Terms and Conditions notwithstanding anything to the contrary contained in any such additional or inconsistent terms or conditions. These Terms and Conditions and the Confirmation shall collectively be referred to as the “Contract”.
The price for the Equipment shall be as identified on the Confirmation, which price shall be exclusive of GST and all other applicable taxes unless otherwise stated. In circumstances where Brangus Oil Tools has agreed to facilitate delivery of the Equipment to the Customer’s location, unless otherwise specified on the Confirmation, the price is exclusive of all freight and transportation costs.
Unless otherwise specified on the Confirmation, payment for the Equipment and all freight and transportation costs for the Equipment shall be due not later than Thirty (30) days following the Customer’s receipt of an invoice from Brangus Oil Tools therefor. All payments shall be made without set-off deduction, or counterclaim. Interest will accrue at the rate of 18% per annum on any overdue amounts. Time shall be of the essence with respect to the Customer’s payment obligations contained herein.
Unless otherwise specified on the Confirmation, Brangus Oil Tools does not guarantee or assume any liability for failure to meet any delivery date proposed by the Customer or Brangus Oil Tools. The Customer shall have the opportunity to inspect the Equipment prior to taking custody or to the shipping of the same. Once the Customer takes custody of or instructs Brangus Oil Tools to ship the Equipment, the Customer shall be deemed to have accepted the Equipment “as is”, regardless of whether or not the Customer actually inspected the Equipment. Risk in the Equipment shall pass to the Customer upon custody of the Equipment being taken by the Customer or its agent, or in circumstance where Brangus Oil Tools has agreed to facilitate the delivery of the Equipment to the Customer’s location via third party carrier, upon custody of the Equipment being taken by such carrier for transportation to the Customer. Accordingly, in circumstances where the Equipment is transported by third party carrier, Brangus Oil Tools shall have no liability for any loss or damage sustained to the Equipment in transit and the Customer’s sole recourse shall be against the third party carrier. Notwithstanding the foregoing, title in the Products shall be retained by Brangus Oil Tools and shall not pass to the Customer until such time as Brangus Oil Tools shall have received payment therefor in full. In addition to all other rights of Brangus Oil Tools hereunder and at law, the Customer hereby grants to Brangus Oil Tools: (i) a purchase money security interest in the Equipment and any proceeds derived therefrom; and (ii) a security interest in all of Customer’s present and after acquired property of any kind; in each case, until Brangus Oil Tools has received full payment for the Products.
The Customer shall examine all Equipment promptly upon delivery to or collection by the Customer or its agent, as the case may be, and shall notify Brangus Oil Tools of any shortages or discrepancies in such Equipment within 48 hours of such delivery or collection, as the case may be, failing which, the Customer shall be deemed to have received all such Equipment as listed on the Confirmation. To the extent that the Customer shall have notified Brangus Oil Tools of any such shortage or discrepancy within such 48 hour timeframe, the Customer shall provide Brangus Oil Tools with full details thereof and such additional evidence as Brangus Oil Tools shall, acting reasonably, require in order to assess the validity of any such claim. Any Equipment identified on the Confirmation as being back-ordered or temporarily out of stock may be subject to delivery or collection, as the case may be, in installments.
The Customer shall be responsible for unloading, cleaning, assembling, and erecting the Equipment as well as for performing ongoing maintenance on the Equipment. Brangus Oil Tools makes no warranty or representation that the Equipment is fit for use as the Customer intends. It shall be the Customer sole responsibility to ensure the Equipment is used only by competent operators in a safe and proper manner in compliance with all applicable laws, rules, regulations, and manufacturer’s instructions, including instruction regarding maintenance, and solely for the purpose for which they are intended.
All Equipment manufactured by third parties and not by Brangus Oil Tools is accordingly supplied by Brangus Oil Tools to the Customer on a strictly ‘as is’ basis. Brangus Oil Tools warrants only that Equipment manufactured by Brangus Oil Tools shall be free from defects in materials and workmanship and not that they will accomplish any particular result. Said warranty of Equipment manufactured by Brangus Oil Tools shall be limited to replacement of the Equipment or, a pro rata credit note or refund equal to the value of the defective Equipment. Such replacement, pro rata credit note, or refund, as the case may be, shall be the sole remedy available to the Customer as against Brangus Oil Tools in respect of any defective Equipment. Brangus Oil Tools makes no representation or warranty, express or implied, with respect to any Equipment, including without limitation, as to any Equipment’s quality, fitness for purpose, or freedom from defect and expressly disclaims any and all warranties which may arise at law.
Notwithstanding the foregoing Section 7, should the Customer notify Brangus Oil Tools in writing of any defect in such Equipment which is covered by any warranty provided by the manufacturer of such Equipment, the Customer shall return such alleged defective Equipment to Brangus Oil Tools and Brangus Oil Tools shall, provided that such Equipment shall not have been modified in any way whatsoever, that the Customer shall not have used the Equipment or performed, or had performed, any maintenance in any way contrary to the warranty, and subject to confirmation of such defect and its coverage under the manufacturer’s warranty by Brangus Oil Tools, at its sole option, provide the Customer with either a replacement of such Equipment, or alternatively, a pro rata credit note or refund equal to the value of the defective Equipment. Such replacement, pro rata credit note, or refund, as the case may be, shall be the sole remedy available to the Customer as against Brangus Oil Tools in respect of any defective Equipment, and is for the sole benefit of the Customer and accordingly shall not be capable of transfer or assignment to any other party. Should Brangus Oil Tools assess that the Equipment does not contain any defect covered by any manufacturer’s warranty, Brangus Oil Tools shall inform the Customer of the same and shall, at Brangus Oil Tools’s option, either return the Equipment to the Customer or make the Equipment available to the Customer for collection. Should the Customer refuse, fail, or neglect to accept delivery of or collect the Equipment, the Customer shall still be required to pay the price for said Equipment in accordance with Section 3. In circumstances where Brangus Oil Tools has facilitated the return of the Equipment by having the same delivered to the Customer’s location, and the Customer should refuse, fail, or neglect to accept delivery of the Equipment, the Customer hereby agrees to pay the freight and transportation costs for the attempted delivery and the return of the Equipment to Brangus Oil Tools in accordance with Section 3.
Although Brangus Oil Tools and its employees and agents may provide general information to the Customer regarding Equipment and its handling and operation upon Customer’s request, Brangus Oil Tools makes no representation or warranty with respect thereto, including with respect to the accuracy or completeness of any such information, it being acknowledged by the Customer that the Customer shall be solely responsible for determining the suitability of any Equipment for Customer’s required use and the appropriate means of handling and operating any such Equipment. The Customer assumes all risk associated with the Equipment and the use thereof and is solely responsible for complying with any special handling, storage, transportation, treatment, or other measures required in connection with the Equipment pursuant to manufacturer’s warranty and/or applicable law.
From the date the Equipment is shipped to or collected by the Customer or its agent, as the case may be, the Customer shall bear the risk of loss and/or damage to the Equipment.
Notwithstanding anything to the contrary: (i) Brangus Oil Tools shall have no liability to the Customer or its affiliates, subsidiaries, employees or any other person at law for whom the Customer is responsible or to any third party for any indirect, special or consequential damages or any loss of profit, loss of opportunity, loss of productivity or delays (including delays in construction) howsoever arising, including in circumstances where such loss or damage is occasioned as a result of the negligence or wilful misconduct of Brangus Oil Tools, its employees or agents or any person for whom Brangus Oil Tools is at law responsible; (ii) in no event shall Brangus Oil Tools’s liability to the Customer in connection with the Equipment or any matter covered by these Terms and Conditions exceed the price paid or payable by the Customer for the Equipment.
Should Brangus Oil Tools be delayed in supplying or delivering any Equipment to the Customer, or in any other way from fulfilling any of its obligations pursuant to the Contract, as a result of any reason beyond its control, including without limitation, as a result of war, insurrection, civil disturbances, Covid-19 or any other pandemic, epidemic, or other health outbreak, or any governmental orders related to the same, labour disputes, strikes or lock-outs, acts of God, acts of any government branch or authority, or the inability of Brangus Oil Tools or any manufacturer to obtain the Equipment or raw materials or components to manufacture the same, Brangus Oil Tools shall: (i) be relieved from the performance of its obligations so affected for the duration of such event or condition; and (ii) have no liability for any loss occasioned as a result of such delay or non-performance.
Upon risk in the Equipment passing to the Customer, the Customer shall be responsible for all damages, including for personal injury, death, or injury to property or otherwise, arising out of the use by the customer of the Equipment and any other act or omission by the Customer, or any subcontractor, agent, employee of the Customer with respect to the Equipment. The Customer shall (i) be liable to Brangus Oil Tools for; (ii) indemnify and hold harmless Brangus Oil Tools, its officers, employees, agents, contractors and advisors (the “Brangus Oil Tools Indemnified Parties”) from and against: all claims, liabilities, costs, losses, expenses and damages that Brangus Oil Tools or any of the Brangus Oil Tools Indemnified Parties may pay, incur or suffer as a result of or in connection with the use, storage, sale or handling of any Equipment or its container, including without limitation: (iii) any damage to property; (iv) any injury to person or persons, including death; and (v) any environmental contamination; arising therefrom.
The Customer shall be in default of the Contract, upon the happening of any of the following events: (i) if the customer fails to pay any invoices when due; (ii) if the Customer fails to perform any other obligation under the Contract; or (iii) if the Customer ceases to operate, makes a sale or sales of the bulk of its assets, or becomes insolvent, or makes a proposal or arrangement with its creditors prior to having paid for the Equipment. Upon default, Brangus Oil Tools shall have all rights and remedies of a secured party under the Personal Property Security Act (Alberta). The Customer shall reimburse Brangus Oil Tools’s expenses (including, but not limited to, the costs of hiring a civil enforcement agency, any court costs, interest, and legal fees on a solicitor and his own client basis) in collecting any amounts owed by the Customer arising out of the Contract, including, but not limited to, expenses incurred by Brangus Oil Tools in protecting its rights under the Contract. All unpaid amounts under this Contract shall bear interest at the rate of 18% per annum, both before and after default and judgment at the same rate until payment is made in full.
To apply, any standards or requirements of law or governmental regulations must be expressly and specifically set forth in writing in the Confirmation. Otherwise, Brangus Oil Tools shall have no liability or obligation to the customer with respect to the failure of the Equipment to comply with any such standards or requirements.
Any notices required under the contract shall be given by private prepaid courier service to the address of the recipient set out on the Confirmation. Notices sent by courier shall be deemed to be received on the next business day, Saturdays, Sundays, and holidays on which banks are not open for business in Alberta, excepted.
The Contract may not be amended except in writing and signed by an authorized representative of Brangus Oil Tools. The customer may not assign the Contract. The failure of Brangus Oil Tools to enforce or to insist upon the strict performance of any provision in these Terms and Conditions shall not be construed as a waiver of Brangus Oil Tools’s right to so enforce or insist upon strict performance for the future. Should any provision contained in these Terms and Conditions be held to be illegal or unenforceable, such provision shall be severed from the remainder of the agreement contained in these Terms and Conditions which shall otherwise remain in full force and effect. These Terms and Conditions shall be governed by the laws of the Province of Alberta and the laws of Canada applicable therein and Brangus Oil Tools and the Customer each attorn to the exclusive jurisdiction of the Alberta Courts. The Contract shall be binding upon any and all successors and assigns of the parties hereto.