GENERAL TERMS AND CONDITIONS FOR THE SALE OF GREEN LIGHTNING™
1. Applicability.
(a) These terms and conditions of sale (these "Terms") are the only terms which govern the sale of the Green Lightning™ Machine (the "Goods") and services (the “Services”) by Nytro Ag Corp. ("Seller") to the buyer named on the reverse side of these Terms under the Purchase Order ("Buyer").
(b) The accompanying Purchase Order (the "Sales Confirmation") and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer's general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfilment of Buyer's order does not constitute acceptance of any of Buyer's terms and conditions and does not serve to modify or amend these Terms.
(c) Acceptance of the Sales Confirmation will be followed by an invoice, terms of the invoices are a $20,000 down payment immediately, with the balance due prior to delivery of the Goods.
2. Delivery of Goods and Performance of Services.
(a) The Goods will be delivered within a reasonable time after the receipt of Buyer's purchase order, subject to availability of finished Goods. Seller shall not be liable for any delays, loss, or damage in transit.
(b) Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to the address of the Buyer as indicated on the Sales Confirmation (the "Delivery Point") using Seller's standard methods for packaging and shipping such Goods.
(c) Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfilment of Buyer's purchase order.
(d) If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller's notice that the Goods have been delivered at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage, and insurance).
(e) Seller shall use reasonable efforts to meet any performance dates to render the Services specified in the Sales Confirmation, and any such dates shall be estimates only.
(f) With respect to the Services, Buyer shall (i) cooperate with Seller in all matters relating to the Services and provide such access to Buyer's premises, and such facilities as may reasonably be requested by Seller, for the purposes of performing the Services; (ii) respond promptly to any Seller request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Seller to perform Services in accordance with the requirements of this Agreement; (iii) provide such customer materials or information as Seller may request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
3. Non-Delivery.
(a) Seller shall not be liable for any non-delivery of Goods (even if caused by Seller's negligence) unless Buyer gives written notice to Seller of the non-delivery within 7 days of the date when the Goods would in the ordinary course of events have been received.
(b) Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 3 are Buyer's exclusive remedies for the delivery of Non-Conforming Goods. Except as provided under Section 3(c), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
4. Shipping Terms. Delivery of the Goods shall be made Free on Board (FOB) in accordance with the terms on the face of the Sales Confirmation.
5. Title and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Personal Property Security Act of the residence of the Buyer.
6. Payment Terms.
(a) Buyer shall pay all invoiced amounts due to Seller on receipt of Seller's invoice.
(b) Buyer shall pay interest on all late payments at the lesser of the rate of 18% per annum, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, legal fees on a full indemnity. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods or performance of any Services until the Buyer has paid all invoices in full.
(c) The purchase of the Goods by the Buyer for resale or redistribution for the purpose of resale in any way is strictly prohibited, and the sale of the Goods to the Purchaser is intended for the Buyer’s benefit only.
7. Limited Warranty.
(a) The Seller warrants the Goods are covered by the Warranty Manual provided by Green Lightning Solutions Inc., a copy of which has been provided to the Buyer..
(b) EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 7(a), SELLER MAKES NO CONDITION OR WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING ANY (a) CONDITION OR WARRANTY OF MERCHANTABILITY; OR (b) CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
(c) Products manufactured by a third party ("Third Party Product") may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Goods. Third Party Products are not covered by the warranty in Section 7(a). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS, CONDITIONS, OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) CONDITION OR WARRANTY OF MERCHANTABILITY; (b) CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) CONDITION OR WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
(d) The Seller shall not be liable for a breach of the warranties set forth in Section 7(a) and Section 7(b) unless: (i) Buyer gives written notice of the defective Goods or Services, as the case may be, reasonably described, to Seller within 20 days of the time when Buyer discovers or ought to have discovered the defect; (ii) if applicable, Seller is given a reasonable opportunity after receiving the notice of breach of the warranty set forth in Section 7(a) to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller's place of business at Seller's cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer's claim that the Goods or Services are defective.
(e) The Seller shall not be liable for a breach of the warranty set forth in Section 7(a) or Section 7(b) if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller's oral or written instructions as to the storage, installation, commissioning, use, or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of Seller.
(f) Subject to Section 7(d) and Section 7(e) above, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller's expense, return such Goods to Seller.
(g) Subject to Section 7(d) and Section 7(e) above, with respect to any Services subject to a claim under the warranty set forth in Section 7(b), Seller shall, in its sole discretion, (i) repair or reperform the applicable Services or (ii) credit or refund the price of such Services at the pro rata contract rate.
(h) THE REMEDIES SET FORTH IN SECTION 7(f) and SECTION 7(g) SHALL BE THE BUYER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTION 7(a) and SECTION 7(b), RESPECTIVELY.
8. Limitation of Liability.
(a) IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS AND SERVICES SOLD HEREUNDER.
(c) The limitation of liability set forth in Section 8(b) shall not apply to (i) liability resulting from Seller's gross negligence or wilful misconduct, and (ii) death or bodily injury resulting from Seller's acts or omissions.
(d) The Goods must be installed according to the Seller’s installation guidelines. Detailed installation instructions are included with the Goods delivered to the Buyer. Damage caused by improper storage, handling, or installation methods is not covered by these warranties. The Seller shall not be liable or held responsible for any damages resulting from improper installation or use of the Goods.
(e) Notwithstanding anything above, the Buyer must obtain a water quality report relating to the source of the water that the Buyer intends to use to feed into the Goods. The report must be sent to the Seller prior to the Buyer utilizing the goods. The Seller will inform the Buyer in writing whether the water submitted in the water quality sample will meet the criteria needed for basic performance of the Goods. If the Buyers water sample does not fit the criteria, the Seller will provide the changes required to the water quality to obtain optimal performance to the Buyer in writing. The Seller will then request a new sample to be taken after any changes have been made to the water source as identified by the Seller. Failure to execute the changes noted by the Seller, provide a water sample to the Seller prior to using the Goods, or using water in the Goods prior to the Seller advising the water is acceptable will void all warranties relating to the Goods, and shall release the Seller from any liability surrounding the performance of the goods and all damages relating to the same. If the Buyer utilizes water in the Goods at any time that contains a different quality than that approved by the Seller, the above-noted steps must be completed, and the new water must be tested by the Buyer. The Buyer is also required to perform a jar test on any chemicals or additives they intend to use with the conditioned water to be used in the Goods. The Seller is not liable for any damages caused, directly or indirectly, by the Buyer not strictly complying with all guidelines, instructions, and directions for use of the Goods. The Goods are inherently dangerous if all guidelines, instructions and directions for the safe use and installation of the Goods as provided or published by the Seller or manufacturer of the Goods from time to time are not strictly followed.
9. Compliance with Law. Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.]
10. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
11. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the Province of Saskatchewan and the federal laws of Canada applicable therein without giving effect to any choice or conflict of law provision or rule (whether of the Province of Saskatchewan or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the [Province of Saskatchewan. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
12. Choice of Forum. Any legal suit, action, litigation, or proceeding of any kind whatsoever in any way arising out of, from, or relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached to this Agreement, and all contemplated transactions, shall be instituted in the courts of the Province of Saskatchewan, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation, or proceeding. service of process, summons, notice, or other document by mail to such Party's address set forth herein shall be effective service of process for any suit, action, litigation, or other proceeding brought in any such court. Each Party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The Parties irrevocably and unconditionally waive any objection to the venue of any action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
13. Amendment and Modification. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.
14. Use of Goods
The Buyer or any employees, directors, officers, contractors, or agents of the Buyer are authorized to use the Goods, and the Goods must only be used for the agricultural operations conducted by the Buyer, and are not to be used for any other purpose. Buyer shall not be permitted to sell or redistribute the Goods without the express written consent of the Seller.
I have read, acknowledge and accept all terms and conditions set herein.
x_________________________________