General Terms and Conditions of Sale and Delivery

Schmalz Vacuum Technology Ltd.
14-2900 Argentia Road
L5N 7X9 Mississauga
Ontario, Canada

Revised April 2009

1. Scope of application

We shall perform our deliveries and services solely on the general terms and conditions of trade set out below. Other terms and conditions of the other party shall be valid only insofar as they are in accordance with our terms; otherwise they are hereby expressly opposed. It is agreed that these general terms and conditions of trade also apply to future orders without having to make special reference to them again. Differing or supplementary agreements are valid only if concluded in writing or confirmed by us in writing.

2. Quotations, prices

Unless expressly designated as binding, quotations in their entirely are given without engagement. In the case of quotations designated as binding, a contract is only brought about if our quotation is accepted by the purchaser within two months from the quotation date. On expiry of this time we shall no longer be bound by the quotation. Our prices are quoted exclusive of applicable sales taxes at the current statutory rate. They are valid ex-works Mississauga, Ontario. and therefore do not include packing, transport, postage and insurance or other dispatch costs. In the case of a net order value of less than C$250 we shall be entitled to charge a minimum quantity supplement of US$12.50 net. Distributors will be provided a reduced discount for orders of less than C$250. We shall be entitled to adjust our quotation prices to take account of increased wage and material costs, including price increases by our suppliers, if the goods are delivered more than four months after conclusion of the contract and the cost increase occurred after conclusion of the contract. Failing the conclusion of a contract the cost of samples made up at the purchaser’s request and associated preliminary work shall be to the purchaser’s account. We reserve the copyright and right of title to all cost estimates, drawings and other tender documents. They may be made available to third parties only with our consent.

3. Deliveries, passing of risk

Partial deliveries are permissible and commit the purchaser to paying the pro rata payment unless it would be unreasonable for the purchaser to accept the partial delivery. Each partial delivery shall be deemed fulfillment of a separate order according to these terms and conditions. Deliveries are made ex-works at the purchaser’s expense. The risk in respect of the goods shall pass to the purchaser on leaving the dock at the manufacturer’s works or notification of readiness for dispatch. This shall also apply to partial deliveries and instances in which we have undertaken to meet transport charges or haulage and assembly of the goods. Equipment is delivered disassembled where the method of shipment and the transport risk so require. Transport or other insurance will be arranged only if specifically requested by the purchaser and at the purchaser’s expense. In the event of delay in taking delivery, the storage charges we incur shall be charged to the purchaser’s account. These will amount to a half of one per cent for each full week’s delay, to a maximum however of 5% of the net value of the delivery not taken. The purchaser has the right to prove lesser damage and we reserve the right to prove greater damage. We shall be entitled, after setting of a reasonable period and its expiry, to dispose of the delivery items elsewhere and to deliver to the purchaser with suitably extended terms. In individual cases, we will accept the return of delivered goods within 3 months of delivery, providing the goods are standard and stockable products as defined by Schmalz Vacuum Technology Ltd. and are in "as new" condition and in their original packaging. For the quality inspection of the returned goods and their return to stock, we will charge 25% of the net value of the goods or C$30, whichever is greater.

4. Delivery periods and dates

Delivery periods quoted by us are not binding and only approximate unless transactions where time is of the essence are expressly stipulated in individual contracts. They only become binding once we have duly received all the documents, authorizations and approvals necessary for the execution of the order and agreed payments from our customer. The delivery time shall commence at the earliest on receipt of our order acknowledgment by the purchaser. It shall be deemed met if the delivery items leave the loading platform at the manufacturer’s works or notification of readiness for dispatch is sent within the time. Delivery period days shall be taken to mean working days. In cases of force majeure or other circumstances beyond our control (e.g. official measures, strike, lock-out, operating stoppages, material procurement problems, transport disruptions, etc., including any affecting our suppliers) the delivery periods shall be extended appropriately, even if already confirmed. This shall also apply if the circumstances referred to above arise during an existing delay. If such circumstances make it impossible or unreasonable for us to perform, we shall be released from our obligation to perform. If the delay in delivery lasts longer than one month, both we and the purchaser shall be entitled to withdraw from the contract.

5. Payments

Terms of payment are 2% 10 days or net 30. Deposits are required for orders with a list price value exceeding $10,000 of 35% at the time the order is placed and an additional 35% prior to shipping. Early payment discount does not apply to credit card orders or deposits. If satisfaction of our claim for payment is jeopardized by purchaser’s bad financial circumstances occurring or coming to light after conclusion of the contract, we shall be entitled to demand cash on delivery or cash in advance, to retain goods not yet delivered and to cease further work on current orders and to withdraw from contracts already concluded with the purchaser unless the purchaser pays in advance or otherwise provides security. A service charge of 1-1/2% per month (18% annual) will be added to all past due balances. In the event any third parties are employed to collect outstanding monies owed, purchaser will be responsible to pay reasonable collection costs, including attorney fees.

6. Reservation of title

The goods supplied shall remain our property as reserved property pending satisfaction of all existing and future claims arising from the business relationship. This also applies if individual or all claims have been included in a current invoice and the balance has been struck and accepted. Acceptances, bills and cheques shall count as payment only after their irrevocable encashment. The purchaser shall only be entitled to dispose of the goods in the normal course of business if the purchaser here and now assigns to us all claims against customers or third parties arising from the disposal. The purchaser is not entitled otherwise to dispose of the reserved property, in particular by pledging or assigning as security. If the reserved property is disposed of unprocessed or after processing or mixing with items that are the purchaser’s sole property, the purchaser here and now cedes the claims arising from disposal of the reserved property to us in full. If reserved property is disposed of by the purchaser – after processing/mixing – together with goods not belonging to us, the purchaser here and now cedes the claims arising from disposal in the amount of the value of the reserved property with all subsidiary rights and priority ahead of the others. We accept the assignment. Should a current account relationship exist between the purchaser and his buyer, assignment shall extend not only to the balance recognized according to article 355 of the Commercial Code but also to any excess amount arising from this current account relationship, which shall be due for payment immediately without statement and verification. The purchaser shall be entitled to collect these claims, even after assignment, until revocation. Our authority to collect the claims ourselves is not affected; we undertake, however, not to collect the claims and not to revoke the purchaser’s authority to collect provided the purchaser duly meets his payment and other obligations. We can require the purchaser to notify us of claims assigned and the debtors, give us all the information necessary for collection, surrender the relevant documents and advise the debtors of the assignment. Any processing or working up of reserved property is undertaken by the purchaser on behalf of us as manufacturer without any obligations on our part thereby arising. In the case of processing, combination, mixing or blending of reserved property with other items not belonging to us, we shall have proportional co-ownership of the new article in proportion to the value of the reserved property to the other items processed on the date of processing, combination, mixing or blending. Should the purchaser acquire sole ownership of the new article, it is agreed that the purchaser shall grant us co-ownership of the new article in proportion to the value of the processed or combined, mixed or blended reserved property to the new article and shall keep it in safe custody for us at no charge. The purchaser undertakes to dispose of the goods supplied by us only under the proviso that he reserves title to these goods until the purchase price has been paid in full, and agrees that if reservation of title is forfeited by virtue of disposal, combining, processing or blending, it be replaced by title to the new article or the claim arising therefrom. In the event of default by the purchaser or a petition to institute insolvency proceedings in respect of the purchaser’s assets we shall be entitled to demand the immediate restitution of the goods delivered subject to reservation of title. Taking back does not imply withdrawal from the contract. The deferred claims shall then become due for payment immediately. Deposited bills are to be redeemed contemporaneously against payment in cash, irrespective of their due date. Should the value of the securities provided exceed the claims to be secured by more than 20 %, we undertake, at the insistence of the purchaser, to reassign those securities which exceed 120 % of the value of our receivables. The choice of which securities to release shall rest with us. The purchaser undertakes to insure the reserved goods against each insurable loss. He shall assign to us in advance his claims arising out of the insurance contracts and shall produce proof of the concluding of the contracts to us on request. The purchaser is to notify us without delay of attempts by third parties to seize goods belonging to us or substituted claims thereto, enclosing relevant documents.

7. Warranty and liability

Any notices of defects in faulty materials or workmanship and complaints of any nature must be made within 7 days of the delivery. The rejected items are to be sent to us, carriage pre-paid, after prior agreement with us. The normal warranty period is 12 months after shipment from Mississauga, Ontario.  This is shortened to 6 months if the goods are used in two-shift operation (16 hours service per day) and to 4 months in three-shift operation (24 hours service per day) from delivery. Vacuum handling products have a limited standard warranty period of 18 months from the date of shipment, excluding wearable items. Parts and assemblies subject to normal operational wear and tear are expressly excluded from this warrantee. In case of defects we shall have the right, at our discretion, to undertake repairs or to replace the defective parts. In the case of replacement we shall bear the cost of the replacement item including dispatch to the originally stipulated contractual place of delivery, but not the cost of dismantling and fitting or other expenses. If the purchaser requests that we ship to a different place or perform services on site, the purchaser shall meet the extra costs involved. Items replaced shall become our property. The guarantee period in respect of the replacement and remedial work is 3 months and is not less than the original guarantee period for the delivery item. Should repair or replacement prove impossible or fail at least twice or not be carried out by us despite setting an appropriate period of time to do so, the purchaser may demand a reduction in price, rescind the contract or claim damages, unless specified otherwise below. However, claims for damages presuppose that the purchaser can prove our fault. We give no guarantee as to the suitability of our products for a particular purpose and no guarantee is accepted for defects or damage occurring through no fault on our part due to unsuitable or inappropriate use, incorrect assembly or commissioning, excessive stressing, natural wear and tear, incorrect or negligent handling, unsuitable operating substances, chemical, electrochemical or electrical influences. Liability for damages shall be excluded to the extent permitted by law. We shall not be liable for damage not attributable to malicious intent or gross negligence unless the fault relates to a cardinal duty and/or an owner or senior executive of this company. This exclusion of liability shall not include cases in which material defects or deficiencies in title due to negligent breach of duty result in death, bodily injury or health damage. Our liability shall be limited to the net value of the goods in the delivery containing the defective item. It is limited to typically foreseeable damage.

8. Assembly

Where we are asked to carry out assembly as well as supply, assembly will be carried out on the basis of an independent contract for services separate from the supply. Our special written assembly terms will apply to such a contract.

9. Miscellaneous provisions

The place of performance and venue is Mississauga, Ontario. Canadian law shall apply exclusively. The validity of the UN Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded. Should any provisions of these terms and conditions be inoperative, this shall not affect the operative effect of the other provisions hereof. The inoperative provision shall be replaced by a provision such that the originally intended economic purpose is achieved as best possible. Seller agrees to fully cooperate with Purchaser in the design, manufacture or procurement of safety features or devices, which comply with Ontario Occupational Health and Safety regulations. However, it shall remain the responsibility of Purchaser to comply with local health and safety legislation and all other legal requirements applicable to the equipment and Purchaser’s use thereof. In the event additional equipment or labor shall be required for such compliance, it shall be furnished by Seller at prices and standard rates in effect, or as may be mutually agreed upon at the time of the additional installation.