Terms and Conditions

(Effective August 1, 2023)

AGREEMENT: These terms and conditions constitute a continuing sale Agreement between LIVunLtd (hereinafter collectively referred to as “LIV”) and Buyer for all products, parts and/or services provided by LIV to Buyer. No other terms and conditions nor modifications hereof shall be binding upon the parties unless accepted in writing by LIV. If Buyer uses its own purchase order form to place orders for products, parts and/or services, any terms and conditions on its form which are in addition to or inconsistent with the terms and conditions of this Agreement are null and void.
DELIVERY: LIV shall use its best efforts in the ordinary course of business to affect deliveries to Buyer as specified. In no event shall LIV be liable for any damages, consequential, incidental, liquidated or otherwise, arising from LIV’s failure to meet any delivery date. Delays at Buyer’s request or due to Buyer’s failure may result in storage fees.
PARTIAL SHIPMENT: As products and/or parts ordered by Buyer become available, LIV may make partial shipments and each shipment shall be invoiced separately. Partial shipments shall not relieve Buyer from its obligation to accept shipment of the remainder of the order.
RISK OF LOSS: Title and risk of loss of the products and/or parts passes to Buyer at the time the products and/or parts leave LIV’s designated distribution center or warehouse. The F.O.B. point is LIV’s designated distribution center, or warehouse unless otherwise specified.
PAYMENT: LF shall invoice Buyer for the purchase price of each of the products and/or parts shipped and/or services rendered pursuant to this Agreement. The invoice shall be in CAD and shall include charges (as applicable) for freight, handling, taxes, surcharges, and other amounts payable to LIV. All amounts specified on the invoice shall be paid by Buyer to LIV within thirty (30) days from the date of the invoice or pursuant to such other terms as LF may agree. LIV may require payment in advance of all or any part of the purchase price of any product, part and/or service. Payment terms and credit lines are subject to LIV’s credit approval. Until LIV receives payment in full for the products and/or parts, Buyer grants LIV a security interest in and a lien on all products and/or parts and, upon request, Buyer may be required to execute UCC statements evidencing LIV’s security interest/lien. Payments not made by Buyer on or before the due date shall bear interest at two percent (2%) per month or the maximum rate permitted by law, whichever is less. Such interest shall be in addition to and without limitation of any other rights or remedies which LIV may have under this Agreement or at law or in equity. Buyer agrees to pay any attorney’s fees and costs incurred by LIV in enforcing its rights under this Agreement. Buyer is responsible for all applicable sales, use and/ or excise taxes for the purchase of products, parts and/or services. Taxes are in addition to the sales price unless Buyer presents a valid tax exemption certificate.
GOVERNING LAW & VENUE: This Agreement shall be governed by the laws of the Province of Ontario.
RETURNS: Within thirty (30) days of delivery, Buyer may contact LIV to discuss return options, which may include, at LIV’s sole discretion, (A) return of new, unused products and/or parts for credit; or (B) return of non-stocked or used products and/or parts for a repurchase price. Approved credits or repurchase prices will not include freight, fuel and installation charges incurred by LIV. The returned product and/or part must be returned in its original packaging, as applicable. LIV assumes no responsibility for damage caused by shipping or improper packaging. Each returned product and/or part is subject to a re-stocking fee of twenty percent (30%) of the purchase price.
CANCELED ORDERS: Orders canceled by Customer within 60 days prior to the requested delivery date, shipped orders which are refused by Buyer or orders canceled after shipment or production begins for Built-to-Order products and/or parts are subject to a restocking fee of thirty percent (30%) of the purchase price.
ACCEPTANCE BY BUYER: Products and/or parts shall be deemed accepted by Buyer on the date they are received by Buyer unless, within fifteen (15) days after receipt, Buyer gives LIV written notice that the products and/or parts are not accepted and specifies in detail the reasons therefor. LIV may then, at its sole discretion, proceed to make any necessary corrections, in which case such corrective action by LIV shall be Buyer’s sole remedy for non-acceptance of a product and/or part. Upon completion and acceptance of such corrections, the products and/or parts shall be deemed accepted by Buyer. Under no circumstances shall Buyer be entitled to revoke Buyer’s acceptance of the product and/or part.
CONSEQUENTIAL DAMAGES: NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, LIV SHALL HAVE NO LIABILITY WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, FOR LOSS OF CAPITAL, LOSS OF PRODUCT, LOSS OF PROFIT, LOSS OF USE, LOSS OF POWER, POWER OUTAGES, COST OF REPLACEMENT POWER, OR ANY INDIRECT, SPECIAL, LIQUIDATED, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
LIMITATIONS OF LIABILITY: IN NO EVENT SHALL LIV’S LIABILITY TO BUYER ARISING OUT OF OR RELATING TO THE SALE OF ANY PRODUCT, PART AND/OR SERVICE PURSUANT TO THIS AGREEMENT EXCEED THE PURCHASE PRICE PAID BY BUYER TO LF FOR SUCH PRODUCT, PART AND/OR SERVICE.
INSURANCE: LIV’s standard certificate of insurance shall be deemed to satisfy any and all insurance requirements of Buyer.
FORCE MAJEURE: Delay in or failure to carry out the duties imposed upon either party (except Buyer’s duty to make invoiced payments to LIV) under this Agreement shall not constitute default hereunder or give rise to any claim for damages if such delay or failure results directly or indirectly from acts of God, pandemic or epidemic, diseases, quarantines, unavoidable casualties, concealed conditions, acts of any civil or military authority, riot, insurrections, and civil disturbances; war, invasion, act of foreign enemies, hostilities (regardless of whether or not war is declared), rebellion, revolution, terrorist activities, strikes, lockouts or other labor disputes; government sanction; embargoes; shortage or unavailability of labor, supplies, materials, equipment or systems; fire, transportation contingencies; laws, statutes, regulations, and other legal requirements, orders or judgements; acts or order of any government or agency or official thereof, other catastrophes or any other similar occurrences beyond such party’s reasonable control, all of the aforesaid being herein for convenience referred to as “events of force majeure.” In the event that LIV’s work is delayed, impeded or rendered costlier by an event of force majeure, LIV shall provide Buyer with at least ten (10) days’ prior written notice advising Buyer of any price increase. Force majeure delays shall also extend the estimated delivery date on a day by day basis.
TERMINATION: (A) Products and/or Parts: Either party may terminate this Agreement for convenience by providing sixty (60) days prior written notice. In the event of termination, Buyer and LIV shall be relieved of all further obligations hereunder except Buyer’s obligation to pay LIV the total of LIV’s outstanding invoices as of the date of termination and invoices on all orders and invoices in progress including without limitation, all costs, expenses and liabilities (including cancellation charges, restocking fees) incurred by LIV as a result of such termination
WAIVER: No waiver of any provision of this Agreement or any rights or obligations of either party hereunder shall be effective or a continuing waiver, except pursuant to a written instrument signed by the party or parties waiving compliance. Any such waiver shall be effective only in the specific instance and the specific purpose stated in such writing.
SEVERABILITY OF PROVISIONS: In the event that any provision hereof is found invalid or unenforceable pursuant to judicial decree or decision, the remainder of the Agreement shall remain valid and enforceable according to its terms. WITHOUT LIMITING THE FOREGOING, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER SUCH PROVISION AND TO BE ENFORCED AS SUCH. FURTHER, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT.