General Terms and Conditions

1. Applicability

  1. These General terms and conditions of the Sale, (the “General Terms”), as supplemented by any additional Sales terms agreed by Blue Giant and Dealer, Distributor or open line dealer (the Dealer, Distributor or open line, each a “Buyer”), through a written document signed by an authorized representative of the Buyer and Blue Giant (the “Supplemental Sales Terms”), and an accepted purchase order (the “Purchase Order”), are collectively the entire agreement between the Buyer and Blue Giant regarding sale of products and the General Terms, Supplemental Sales Terms and Purchase Order are collectively referred to herein as the “Agreement”.

  2. Unless otherwise agreed to in writing by Blue Giant and Buyer, all transactions between the Buyer and Blue Giant are expressly limited to the Agreement. If a conflict between General Terms, Supplemental Sales Terms and Purchase Order exists, General Terms shall govern and control to the extent of such conflict. Any prior terms and conditions including, without limitation, terms and conditions contained in Buyer’s Purchase Order and any other written or oral communication are hereby expressly rejected and shall not be binding on either Blue Giant or Buyer.

  3. Buyer’s acceptance of Equipment, services and/or payment for Equipment and service constitutes acceptance of the Agreement.

 

2. Discount

Unless otherwise agreed to in writing by Blue Giant, no discounts shall be allowed on the list price. When a discount is allowed, it is applicable to Equipment (as defined in Section 6(c)) and attached options only. Blue Giant does not discount freight, service, installation, on-site adjustments and/or any surcharges.

 

3. Quotation and Published Price Lists

  1. All written quotations shall expire on the expiration date listed on the quotation or thirty (30) days from issuance. Blue Giant reserves the right to extend the date of written quotations. Ship dates and lead times are estimates only and may depend on application review and/or approval of drawings by Buyer. Blue Giant reserves the right to change ship dates and lead times without recourse, for any reason, including but not limited to, Buyer’s failure to maintain its account in good standing.
  1. Published price lists do not represent unconditional offers to sell and are subject to change without notice. Prices do not include costs or fees for freight, service, installation, on-site adjustments federal, state, or local taxes, import or export, excise, VAT or similar tax.
  2. Blue Giant reserves the right to cancel any orders or quotations, which may be affected by pricing errors, typographical errors or other errors in quotations.
 

4. Payment Terms, Taxes and Resale certificates

  1. Unless otherwise agreed to in writing by Blue Giant and Buyer, payment terms are prepaid at the time of order. In the event Buyer wishes to obtain open credit terms, Buyer shall complete a credit application to setup an account with Blue Giant. All credit application terms shall be incorporated in the Agreement. Blue Giant reserves the right to charge the lesser of 1.5% per month or the maximum rate permitted by law, calculated daily and compounded monthly, on all overdue balances. Buyer shall reimburse Blue Giant for all costs incurred in collecting any overdue balance, including, without limitation, attorneys’ fees. Buyer shall not be entitled to any offset or deduction from Blue Giant’s invoice for any reason.
  2. Unless valid exception is provided, Buyer is responsible for applicable governmental taxes, charges, or duties of any kind whatsoever (excluding any tax based upon Blue Giant’s net income) resulting from, arising out of, or relating to sale, shipment, delivery, installation or use of the product sold under the Agreement (“Tax”). All Purchase Orders must clearly reflect the Buyer’s Tax responsibility.
  3. Buyer is responsible for providing any tax exempt or resale certificate if the Buyer intends to deduct the tax amount included in the proposed transaction. It is the Buyer’s responsibility to provide any applicable state (if located in the United States) or province (if located in Canada) specific resale certificates where the Equipment is shipped or installed.
  4. Blue Giant uses third party software for receipt of resale certificates. It is Buyer’s responsibility to upload and manage, for all relevant tax jurisdictions that the Buyer wishes to receive delivery of the Equipment and services. Buyer is responsible for providing updated certificates prior to expiration if applicable.
 

5. Purchase Order Completeness and Order Acknowledgements

  1. Buyer must provide Purchase Orders in complete form, including model numbers, options, pricing, discount, voltage requirements, preferred method of shipping, a specified required ship date and designated contact for order acknowledgment. Blue Giant reserves the right to reject incomplete orders. All Equipment referenced in and purchased pursuant to a valid accepted Purchase Order shall constitute “Equipment”.
  2. Buyer is responsible for reviewing the order acknowledgment issued and notifying Blue Giant of any discrepancies against the Buyer’s Purchase Order. All Purchase Orders must be acknowledged and accepted as it pertains to the estimated ship date within 24 hours of issuance.
  3. All Purchase Orders shall incorporate the General Terms and the Supplemental Sales Terms, if any, in their entirety.
 

6. Storage, Cancellation and Title of ownership

  1. Unless otherwise agreed to in writing, Blue Giant does not offer storage for completed orders.  If any stocked products or stocked aftermarket parts Purchase Order is cancelled by the Buyer in whole or in part, the portion cancelled will be subject to a 25% restocking charge.
  2. All orders will be invoiced when the Equipment is ready to ship or on the estimated ship date, whichever is later. Once invoiced, title, ownership and risk of loss of all invoiced Equipment held at Blue Giant is passed to the Buyer. Until purchase price and all other sums due are paid in full, Buyer hereby grants to Blue Giant a lien on and security interest in the Equipment, 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 the proceeds (including insurance proceeds) of the foregoing.
 

7. Delivery and Pickup 

  1. All delivery/performance dates are approximate and shall not be deemed to represent fixed or guaranteed delivery dates. All such dates are contingent upon prompt receipt of all necessary information from Buyer regarding Equipment and/or services ordered. Blue Giant will use reasonable efforts to meet the indicated delivery/performance dates but shall not be held liable for any loss or damage caused any Force Majeure event (as defined in Section 11).
  2. Product pickup is available upon Buyer’s request. Pickup hours are between 7:00 am and 4:30 pm. Buyer will be notified through email or call and will be advised when the product is ready for pickup. It is the Buyer’s sole responsibility to pick up products supplied within five (5) business days from notice. After five (5) business days, Blue Giant reserves the right to cancel the order and charge 25% of the order value as a restocking charge.
  3. In the event Buyer does not confirm pickup date upon receiving notification and requests a pickup within the prescribed five (5) business days, Blue Giant will require a two (2) hour pickup notification from the Buyer. If Buyer fails to provide two (2) hour notice, timely pickup will not be guaranteed.
  4. With respect to services, Buyer shall (i) cooperate with Blue Giant in all matters relating to the services provided; (ii) respond promptly to any Blue Giant request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Blue Giant to perform services in accordance with the requirements of the Agreement; and (iii) obtain and maintain all necessary licenses and consents and comply with all Applicable Laws (as defined in Section 14) in relation to the services before the date on which the services are to start.
 

8. Inspection and Rejection of Nonconforming Goods

  1. Buyer shall inspect the Equipment within 24 hours of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Equipment until it notifies Blue Giant in writing of any Nonconforming Goods (defined below) during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Blue Giant. For purposes of this Section, “Nonconforming Goods” means: (i) the Equipment shipped is different than identified in the accepted Purchase Order, including deficiencies or shortages, or (ii) the Equipment label or packaging incorrectly identifies its contents. 
  2. If Buyer timely notifies Blue Giant of any Nonconforming Goods, Blue Giant shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Equipment or (ii) credit or refund the price (as determined in the Purchase Order) for such Nonconforming Goods. Buyer shall ship, at its expenses and risk of loss, the Nonconforming Goods to Blue Giant at its requested location. If Blue Giant exercises its option to replace the Nonconforming Goods, Blue Giant shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replacement Equipment to the Blue Giant’s requested delivery point. Notwithstanding the foregoing, Blue Giant shall have 24 hours to inspect the Nonconforming Goods to determine the appropriate remedy under this Section.
  3. Buyer acknowledges and agrees that the remedies set forth in Section 8(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 8(b), all sales of the Equipment to Buyer are made on a one-way basis and Buyer has no right to return any Equipment purchase under the Agreement to Blue Giant.  
 

9. Substitution; Change Orders; and Cancellation

  1. Blue Giant reserves the right to substitute the latest superseding design and manufactured equivalent Equipment, where interchangeability does not materially affect form, fit, function or specification.
  2. Change orders are subject to Blue Giant’s prior written approval and acceptance. All additional costs and expense related to such change orders are to be reimbursed to Blue Giant by Buyer.
  3. Unless otherwise agreed to in writing by Blue Giant, orders will not be subject to cancellation by Buyer, either in whole or in part and then only under terms that will reimburse Blue Giant for all costs incurred by it, directly or indirectly, including, without limitation, preparation costs, costs of purchased materials, engineering costs, total factory costs of the items produced up to the date of acceptance of cancellation, including direct labor and overhead, cancellation charges from Blue Giant’s subcontractors, and an amount equal to Blue Giant’s customary margin less the refund received by Blue Giant on any purchased items which can be returned to vendor.
  4. Blue Giant reserves the right to change or cancel any order whenever Blue Giant deems said change is necessary to comply with laws, regulations, or other mandatory authority; when events require reallocation of production and/or delivery resources; and as provided for in Section 8. Blue Giant additionally reserves the right to change materials and/or design of Equipment.
 

10. Termination

In addition to any remedies that may be provided under these General Terms, Blue Giant may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement and such failure continues for seven (7) days after Buyer's receipt of written notice of nonpayment]; (b) has not otherwise performed or complied with any of these General Terms in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. 

 

11. Waiver

No waiver by Blue Giant of any of the provisions of the Agreement is effective unless explicitly set forth in writing and signed by Blue Giant. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from the Agreement operates or may be construed, as a waiver thereof. No single partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right remedy, power or privilege. 
 

12. Force Majeure

Neither Blue Giant nor Buyer shall be responsible for any delay or failure to make or deliver Product or take delivery of Product due to any cause or circumstance beyond its reasonable control (“Force Majeure”), including, without limitation, the following: (i) fire, storm, flood, strike, lockout, accident, act of war or terrorism, riot, civil commotion, embargo, pandemic (ii) any regulation, law, order or restriction of any governmental department, commission, board, bureau, agency, court, or other similar government instrumentality (“Governmental Authority”), or (iii) the inability of Blue Giant to obtain any required raw material, product, energy source, equipment, labor, or transportation from Blue Giant ’s usual sources of supply, at prices and on terms Blue Giant deems economical and commercially reasonable or (iv) any other cause outside Blue Giant’s reasonable control or causes which make Blue Giant’s performance commercially unfeasible. Neither party is subject to any liability to the other for failing to perform during the period in which such Force Majeure exists. Without limiting the generality of the foregoing, under no circumstances shall Blue Giant be obligated to purchase Product from a third party for delivery to Buyer in the event of a Force Majeure. Quantities so affected by Force Majeure may, at the option of either party, be eliminated from the Purchase Order without liability, but the Purchase Order shall remain otherwise unaffected. A party’s obligation to render timely payment shall not be excused by this provision. 

13. Warranty

  1. Each warranty contract for Equipment provided to Buyer upon purchase of Equipment (“Equipment Warranty”), shall be incorporated herein by reference, as applicable. 
  2. Blue Giant shall not be liable for a breach of the warranty set forth in the applicable Equipment Warranty if: (i) Buyer makes any further use of such Equipment after giving such notice; (ii) the defect arises because Buyer failed to follow Blue Giant's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Equipment; or (iii) Buyer alters or repairs such Equipment without the prior written consent of Blue Giant. 
 

14. Compliance with Laws

Buyer shall comply with all applicable laws, statutes, ordinances and regulations of any governmental authority (“Applicable Laws”) relating to or governing Buyer’s handling, storage, transportation, installation, use, treatment, or disposal of Product, including, but not limited to, following local building and fire codes and obtaining and paying for all necessary permits, licenses and fees. Blue Giant assumes no liability for Buyer’s failure to comply with Buyer’s obligations arising under any Applicable Laws. Buyer warrants that it has used its own independent skill and expertise in connection with the selection and use of the Product and that it possesses the skill and expertise necessary to comply with all Applicable Laws relating to the processing, handling, storage, transportation, delivery, unloading, installation, discharge, treatment, operation, use or disposal of Product. Buyer shall defend, indemnify and hold harmless Blue Giant from and against all claims, demands, actions, causes of action, suits, proceedings, damages, losses, liabilities, fines, penalties, judgments, costs, and expenses (including reasonable attorneys’ fees and expenses) resulting from, arising out of, or relating to Buyer’s (or others’) violation of any Applicable Laws. 

15. Limitation of Liability

BLUE GIANT SHALL NOT BE LIABLE FOR ANY LOSS, CLAIM, EXPENSE OR DAMAGE CAUSED BY, CONTRIBUTED TO, OR ARISING OUT OF THE ACTS OR OMISSIONS OF BUYER OR ITS AGENTS, SUBCONTRACTORS, CONSULTANTS, EMPLOYEES OR OTHER THIRD PARTIES, WHETHER NEGLIGENT OR OTHERWISE.  IN NO EVENT SHALL BLUE GIANT’S LIABILITY FOR ANY CAUSE OF ACTION WHATSOEVER EXCEED THE COST OF THE EQUIPMENT GIVING RISE TO THE CLAIM, WHETHER BASED IN CONTRACT, WARRANTY, INDEMNITY OR TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER SUCH INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUES, PROFITS OR OPPORTUNITIES), WHETHER ARISING OUT OF OR AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICTLIABILITY OR OTHERWISE.

16. Confidential Information

All non-public, confidential or proprietary information of Blue Giant, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Blue Giant to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Blue Giant in writing. Upon Blue Giant's request, Buyer shall promptly return all documents and other materials received from Blue Giant. Blue Giant shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party. 
 

17. Marketing and Sales Material

Unless agreed in writing otherwise, Buyer shall not use Blue Giant’s trademarks, brands and logos, its affiliates names and services within AdWords, SEO and SEM marketing strategies or links containing copyright material.

 

18. Severability

If any provision of these General Terms is deemed invalid or unenforceable in any jurisdiction, the remaining provisions shall not be affected. Blue Giant and Buyer are responsible for executing the remaining portion without including any such part or portion that may for reason be declared invalid. 
 

19. Notices

All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the Purchase Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
 

20. Assignment

Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Blue Giant. 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. 
 

21. Relationship of the Parties

The relationship between the parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
 

22. No Third-Party Beneficiaries

The Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these General Terms. 
 

23. Amendment and Modification

These General Terms may only be amended or modified in a writing stating specifically that it amends these General Terms and is signed by an authorized representative of each party. 
 

23. Governing Law

Unless stated otherwise, terms and conditions of these General Terms and all non-contractual obligations of the Parties will be governed by and construed in accordance with the laws of the Province of Ontario, excluding its conflicts of law provisions. 
 

25. Dispute Resolution

All disputes between the parties under this Agreement shall be resolved in accordance with the following procedures: (i) first, each party shall designate an individual with authority to settle the dispute, and such persons shall meet as soon as possible to attempt to resolve the dispute in good faith; (ii)  second, if these individuals cannot resolve the dispute within ten (10) business days of their first settlement meeting, if the parties so agree, they may submit the dispute to mediation with such mediation to be commenced and administered under and conducted by a single mediator under the Commercial Arbitration Act (R.S.C., 1985, C.17 (Cnd Supp.))(the “Rules”); and (iii) third,  any dispute not resolved by mediation within thirty (30) business days of submission of the dispute to mediation, or if either party shall refuse to submit the dispute to mediation, the dispute shall be subject to binding arbitration in Mississauga, Ontario by a single arbitrator under the Rules, subject to this Agreement. Either party may commence arbitration upon first complying with subsections (i) and (ii) above.