TERMS AND CONDITIONS – CREDIT APPLICATION

AUTHORIZATION AND CONSENT REGARDING INFORMATION

The Customer certifies that the information provided herein or in connection with this application (all or any of which is referred to herein as the “Information”) is true and correct, and that the Customer is authorized to execute this application and to provide the Information. The Customer hereby acknowledges that Integrated Distribution Systems Limited Partnership, Wajax Industrial Components Limited Partnership and/or any of their respective affiliates from time to time (collectively or individually “Wajax”) at any time during the course of the relationship between the Customer and Wajax may be required to supplement and verify the Information and accordingly, the Customer hereby irrevocably: (a) authorizes any bank, supplier, governmental authority, credit agency, collection agency or other person (“Interested Persons”) to disclose to Wajax any Information whatsoever concerning the Customer and the Customer’s affiliates, including financial, personal, business and credit information that Wajax may from time to time request; and (b) authorizes Wajax to disclose any Information (excepting financial statements, if provided) to any Interested Person in relation to the purposes mentioned below throughout the course of the relationship between the Customer and Wajax. The Customer agrees that any Information may be obtained, used or disclosed from time to time by Wajax or by any other person acting at the request of Wajax, for Wajax’s business purposes including without limitation the purposes of making a decision about this application, assessing the Customer’s creditworthiness, monitoring, evaluating, servicing, collecting and otherwise enforcing the Customer’s account, and responding to inquiries about the Customer’s application or account. Without limiting the generality of the foregoing, the Customer consents to the collection, use and disclosure of personal information as part of the Information and otherwise in the course of the relationship between the Customer and Wajax in relation to the purposes mentioned above. The Customer agrees that the authorizations and consents set out herein or provided in connection with this application shall continue for so long as the Customer continues to have a relationship with Wajax.

TERMS AND CONDITIONS RELATING TO CREDIT APPLICATION

In consideration of Wajax agreeing to grant credit to the Customer, the Customer hereby agrees as follows:

  1. The decision whether or not to grant credit or to continue to grant credit to the Customer is at Wajax’s sole discretion. Wajax reserves the right to increase, decrease, modify, suspend and/or cancel the Customer’s credit privileges at any time without notice to the Customer and without recourse by the Customer for any damages that may be incurred as a result. Wajax reserves the right from time to time to request further information from the Customer and to require other conditions be met by the Customer (such as the delivery of personal guarantees or security agreements) as a condition of granting or continuing to grant credit.
  2. All invoices of Wajax are due and payable 30 days from the date of each invoice without any deduction, set off, counterclaim or abatement unless authorized in writing by Wajax’s VP Finance or Credit Manager. Purchases of major equipment are due upon delivery unless otherwise approved in writing by Wajax. Rentals are due in advance (i.e., month of June due June 1st) unless otherwise agreed to in writing by Wajax. Any amount which becomes 30 days past due is subject to a service charge at the rate of 2.0% per month compounded monthly (26.8% annually) until the date of actual payment.
  3. Prior authorization of Wajax must be obtained before returning goods for credit, and Wajax may grant or withhold such authorization in its sole discretion. If a return is accepted, a return authorization form will be provided by your Wajax representative and must be clearly indicated on your returns (prepaid shipments only). Returns may be subject to a restocking charge to be determined by an authorized Wajax representative.
  4. The Customer agrees to notify Wajax promptly of any changes concerning the organizational status, ownership, financial stability or creditworthiness of the Customer.
  5. Title to all goods sold by Wajax shall remain vested in Wajax (even if affixed to real or personal property), and nothing contained in this document or any others shall be deemed to have the effect of transferring right or title in any goods supplied or services performed until such time as the amounts due for said items or services have been paid for in full. Until payment in full, all goods sold by Wajax are removable at the discretion of Wajax (notwithstanding any enclosure or affixation to real or personal property) and Wajax is authorized to enter and/or work upon such property for the purposes of such removal notwithstanding any damage caused. The Customer agrees to indemnify and save harmless Wajax from and against any and all claims, costs and expenses (including legal expenses on a solicitor and his own client basis) suffered or incurred by Wajax in the removal of its goods, including, without limitation, any suffered or incurred in the removal, destruction and repair of walls or other improvements or chattels.
  6. The Customer grants, mortgages and assigns to Wajax a security interest in all of the Customer’s present and after acquired personal property, and all proceeds thereof, as security for the due payment and satisfaction of any and all obligations and liabilities whatsoever, liquidated or unliquidated, of the Customer to Wajax, present or future, direct or indirect and howsoever arising. Whenever Wajax performs any work or service or sells or installs any attachment, improvement or creation to any real or personal property of the Customer, the Customer shall be deemed to have granted to Wajax a lien, charge and security interest in the entirety of such property as security for the payment of Wajax’s charges therefor, and Wajax shall be entitled to register a Caveat and/or financing statement in respect thereof. Wajax shall also be entitled to register financing statements or other means of security as it sees fit. To the extent permitted by applicable law, the Customer waives the right to be notified of registration of any financing statements or other public filings.
  7. The Customer irrevocably authorizes any of (1) Wajax, (2) any carrier retained by the Customer and (3) any employee of the Customer, to sign in the name of and on behalf of the Customer, purchase orders, work orders, court orders, invoices, consents, acknowledgments of debt or other documentation which evidence the present or future obligations of the Customer to Wajax or which gives better effect to the Customer’s obligations hereunder, and such documentation shall be valid and binding on the Customer.
  8. Wajax reserves the right (regardless of any contrary direction) to apply any monies received by it on the Customer’s account to such invoices and accounts of the Customer and as to principal or interest as Wajax deems fit.
  9. Cheques are not considered payment until honoured. Cheque’s returned as Non-Sufficient Funds will be subject to a $50.00 handling fee.
  10. All credit notes issued to the Customer by Wajax expire two years from the date of issuance. Credit notes are to be settled against other open invoices only.
  11. Upon default by the Customer or in the event that Wajax at any time determines that its credit position is in any manner insecure, inadequate or in jeopardy, Wajax may, without limiting its other remedies hereunder or at law (and notwithstanding any existing contracts or
    commitments to the Customer including a commenced delivery or performance): (1) deem all amounts owing by the Customer to Wajax to be immediately due and payable, (2) take possession of any goods supplied or otherwise enforce its security against the Customer, (3) refuse, stop, cease or suspend further sales, deliveries or services to the Customer including goods in transit, and/or (4) impose prepayments or request other forms of security as Wajax deems fit.
  12. The Customer agrees to indemnify and save harmless Wajax from and against any and all costs and expenses (including legal expenses on a solicitor and his own client basis) incurred by Wajax in the collection (including execution) of any monies due to Wajax or enforcing any of Wajax rights.
  13. All invoices shall be deemed admitted and conclusive against the Customer unless questioned in writing within 15 days of the invoice date.
  14. All purchases of goods and/or services from Wajax shall be on the terms and conditions set out herein and in the Wajax Standard Terms and Conditions of Sale as in effect at the time of Wajax’s receipt of any order or request to provide goods and/or services. A current copy of the Wajax Standard Terms and Conditions of Sale is available on request. All rentals of goods from Wajax shall be on the terms and conditions set out herein and in the Wajax Rental Agreement entered into or to be entered into between Wajax and the Customer. No waiver, alteration, revision or modification of such Wajax Standard Terms and Conditions of Sale or Wajax Rental Agreement shall be binding on either Customer or Wajax unless made in writing and signed by a duly authorized officer of Wajax. Wajax hereby objects to and shall not be bound by any additional, different or conflicting terms, whether printed or otherwise, in any other communication between the parties (including on any of the Customer’s forms), it being understood that the terms and conditions contained herein and in the Wajax Standard Terms and Conditions of Sale or Wajax Rental Agreement, as applicable, shall prevail notwithstanding any such additional, different or conflicting terms.
  15. In any and all events, no claim in tort (including negligence), breach of contract or any other cause whatsoever may be brought or counterclaimed against Wajax or its employees, more than 180 days after the delivery of goods or services to which such claim relates even if the grounds for such claim are not discovered or discoverable until after the expiration of such time.
  16. Wajax may commence any legal action or proceeding or take any procedural step or make any registration or filing as against the Customer at any time without limitation even if the time for so doing would otherwise have expired pursuant to any contract, regulation, rule of court or statutory limitation (the Customer hereby waiving its entitlements thereunder). The Customer shall, forthwith upon request from Wajax, sign or consent to any waiver, direction, consent, court order or other document to better effect the foregoing.
  17. No waiver, alteration, revision or modification of this agreement shall be made or be binding unless agreed to in writing by Wajax
  18. This agreement shall be governed, construed and interpreted in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. The Customer agrees that the courts of Ontario have jurisdiction to entertain any legal proceedings in respect of this agreement and the Customer hereby irrevocably consents to and attorns to the non-exclusive jurisdiction of such courts. Wajax may take proceedings for enforcement in any jurisdiction. The International Sale of Goods Act and the United Nations Convention on Contracts for The International Sale of Goods do not apply to this agreement.