Terms and Conditions
TERMS OF SALES
Unless otherwise stated on the signed contract proposal document the following terms and conditions shall apply.
DISCLAIMER: Due to current global supply issues, quoted pricing and delivery will be verified at time of order and may be subject to change due to material shortages and/or supplier price increases.
In these terms and conditions references to “this Agreement” mean the agreement between Seller and Client for the purchase by Client of products of Seller and/or services of Seller in accordance with Seller’s quotation and subject to and in accordance with these terms and conditions.
PRICE AND PRICE ADJUSTMENTS:
All prices are based on currency rates of exchange in effect at the time of quotation. All prices are subject to change without prior notice due to currency fluctuation, material prices and/or unforeseen economic circumstances, including tariff, duty or tax changes implementation. In the case of human or computer error, Seller reserves the right to re-invoice for the correct price or service.
Design work: Should additional design work be needed at no fault of the seller or be requested by the client that results in going over on design hours quoted an additional quote will be provided to the client. If in agreement the client is to provide a PO or a contract revision by way of a change order to the seller for the additional costs.
Scope Creep: Any work requested by the client or deemed necessary at no fault of the seller that falls outside of the original scope of work will be brought to the client’s attention prior to said work being completed. The client is to provide a PO or contract revision by way of a change order to the seller for the additional costs. The seller shall not be held liable for any delays as a result of the client’s failure to furnish the seller with said PO or change order.
If Client fails to make payments when due and Seller incurs any costs in order to collect overdue sums from Client, Client agrees that all such collection costs incurred shall immediately become due and payable to Seller. Collection costs shall include, without limitation, legal fees, collection agency fees and expenses, court costs, collection bonds and reasonable Seller personnel costs at then current standard billing rates for Seller time spent in efforts to collect. This obligation of Client to pay Seller’s collection costs shall survive the term of this Agreement or any earlier termination by either party.
If, due to Seller’s negligence or inadvertent omission, a required item or component of the project subject to Seller’s quotation (the “Project”) is omitted from Seller’s construction documents, Seller shall not be responsible for paying the cost required to add such item or component to the extent that such item or component would have been required and included in the original construction documents. In no event will Seller be responsible for any cost or expense that provides betterment or upgrades or enhances the value of the Project.
SAMPLE BILLING AND PAYMENT TERMS:
Payment Terms: Unless otherwise indicated on the signed contract proposal, all contracts are subject to a 25% deposit and monthly progress billing based on percentage of completion. Deposit invoices must be paid prior to the seller commencing work on the project. Monthly progress billing invoices must be paid within 30 days following invoice submission to avoid project delays. The seller will not be held responsible for delays that were a result of late payment on the part of the client.
Payment Due: Invoices shall be submitted by Seller monthly and are due upon presentation and shall be considered past due if not paid within (30) calendar days of such due date.
Interest: If payment in full is not received by Seller within (30) calendar days of the due date, invoices shall bear interest at one-and-one half (1.5) percent (or the maximum rate allowed by law, whichever is less) of the PAST DUE amount per month, which shall be calculated monthly from the due date. Payment thereafter shall first be applied to accrued interest and then to the unpaid principal.
Termination: If Client fails to make payment to Seller in accordance with the payment terms herein, this shall constitute a material breach of this Agreement and shall be cause for termination of this Agreement by Seller at the option of Seller.
Suspension of Services: If Client fails to make payments when due or otherwise is in breach of this Agreement, Seller may suspend performance of services upon twenty-four (24) hours’ notice to Client. Seller shall have no liability whatsoever to Client for any costs or damages as a result of such suspension caused by any breach of this Agreement by Client. Upon payment in full by Client, Seller shall resume services under this Agreement, and the time schedule and compensation shall be equitably adjusted to compensate for the period of suspension plus any other reasonable time and expense necessary for Seller to resume performance.
Set-Offs, Backcharges, Discounts: Payment of invoices shall not be subject to any discounts or set-offs by Client unless agreed to in advance in writing by Seller. Payment to Seller for services rendered and expenses incurred shall be due and payable regardless of any subsequent suspension or termination of this Agreement by either party.
CERTIFICATE OF MERIT:
Client shall make no claim for professional negligence, either directly or by way of a cross complaint against Seller, unless Client has first provided Seller with a written certification executed by an independent consultant currently practicing in the same discipline as Seller and licensed in the Province of Ontario. This certification shall: a) contain the name and license number of the certifier; b) specify the acts or omissions that the certifier contends are not in conformance with the standard of care for a consultant performing professional services under similar circumstances; and c) state in detail the basis for the certifier’s opinion that such acts or omissions do not conform to the standard of care. This certificate shall be provided to Seller not less than thirty (30) calendar days prior to the presentation of any claim or the institution of any arbitration or legal proceeding. This Certificate of Merit clause will take precedence over any existing law in force at the time of the claim or demand for arbitration.
CERTIFICATIONS, GUARANTEES AND WARRANTIES:
Seller shall not be required to sign any documents, no matter by whom requested, that would result in Seller having to certify, guarantee or warrant the existence of conditions whose existence Seller cannot ascertain without inquiry or inspection. Client shall not make resolution of any dispute with Seller or payment of any amount due to Seller in any way contingent upon Seller signing any such certification.
If, during the term of this Agreement, circumstances or conditions that were not originally contemplated by or known to Seller are revealed, to the extent that they affect that scope of services, scope of supply, compensation, schedule, allocation of risks or other material provisions of this Agreement, Seller may call for renegotiation of appropriate portions of this Agreement. Seller shall notify Client of the changed conditions necessitating renegotiation, and Seller and Client shall promptly and in good faith enter into renegotiation of this Agreement to address the changed conditions. If terms cannot be agreed to, the parties agree that either party has the absolute right to terminate this Agreement in accordance with the Termination provision hereof.
SITE CONDITIONS AND ONSITE WORK:
The Client must make sure that all access points are free and clear of obstacles while performing installation in order to provide efficient and safe working conditions. It is the responsibility of the client to ensure if obstacles are present, they are removed prior to the seller’s crew arriving to site.
The seller agrees to install the system as designed; any changes made by the Client are subject to additional charges.
Any hours incurred due to unexpected site conditions, scope change, requests outside the original contract scope or delays outside the seller’s control are subject to additional charges.
In all cases power supply to system (where applicable) is to be supplied by others.
EXECUTION OF DOCUMENTS:
Seller shall not be required to execute any documents subsequent to the signing of this Agreement that in any way might, in the sole judgment of Seller, increase Seller’s risk of liability or the availability or cost of its professional or general liability insurance.
Seller shall exercise usual and customary professional care in its efforts to comply with applicable laws, codes and regulations. Design changes made necessary by newly enacted laws, codes and regulations after the date of execution of this Agreement shall entitle Seller to a reasonable adjustment in the schedule and additional compensation in Seller’s determination acting reasonably and consistent with Seller’s past practices (“Additional Services Costs”).
In the event of a conflict between laws, codes and regulations of various governmental entities having jurisdiction over the Project, Seller shall notify Client of the nature and impact of such conflict. Client agrees to cooperate and work with Seller in the effort to resolve this conflict.
Seller agrees to keep confidential and not to disclose to any person or entity, other than Seller’s employees, sub-consultants and the general contractor and subcontractors, if appropriate, any data or information not previously known to and generated by Seller or furnished to Seller and marked CONFIDENTIAL by Client. These provisions shall not apply to information in whatever form that is in the public domain, nor shall they restrict Seller from giving notices required by law or complying with an order to provide information or data when such an order is issued by a court, administrative agency or other legitimate authority, or if disclosure is reasonably necessary for Seller to defend itself form any legal action or claim.
Client agrees that the technical methods, design details, techniques and pricing data contained in any material submitted by Seller pertaining to the Project or this Agreement shall be considered confidential and proprietary and shall not be released or otherwise made available to any third party without the express prior written consent of Seller.
Notwithstanding any other provision of this Agreement, and to the fullest extent permitted by law, neither Client nor Seller, nor their respective officers, directors, partners, employees, insurers, contractors or sub-consultants, shall be liable to the other or shall make any claim against the other for any incidental, indirect or consequential damages arising out of or connected in any way to the Project or to this Agreement.
This mutual waiver of consequential damages shall include, but is not limited to, loss of use, loss of profit, loss of business, loss of income, loss of reputation and any other consequential damages that either party may have incurred from any cause of action including negligence, strict liability, breach of contract and breach of strict or implied warranty. Both Client and Seller shall require and obtain similar waivers of consequential damages protecting all of the entities or persons named herein in all contracts and subcontracts with others involved in the Project.
If Client chooses to retain a construction manager (“CM”) for the Project, Client shall provide Seller, in writing, a list of duties, responsibilities and authority (“DR&A list”) the CM has been assigned by the Owner. Seller shall be entitled to rely upon the proper performance by the CM of the items on the DR&A list and shall bear no responsibility to Client or its representative(s) for any opinions, directions or decisions given by Client and CM that are in conflict with the DR&A.
In the event Client makes any changes to the CM’s DR&A list, Client shall notify Seller, in writing, in a timely manner. Seller shall be entitled to rely solely upon the CM’s decisions and directions as to all items listed in the DR&A list.
If any Client-directed changes to the CM’s DR&A list result in additional time or expense in order for Seller to prepare, coordinate or respond to changes to the plans or specifications, Seller shall be entitled to an equitable adjustment in fees and schedule for the performance of these additional services.
It is intended by both Client and Seller that Seller’s services in connection with the Project shall not subject Seller individual employees, officers or directors to any personal legal exposure for the risks associated with Project. Therefore, and notwithstanding anything to the contrary contained herein, Client agrees that as Client’s sole and exclusive remedy, claim, demand or suit shall be directed and/or asserted only against Seller a Canadian corporation, and not against any of Seller’s individual employees, officers or directors.
DEFECTS IN SERVICE:
Client shall promptly report to Seller any defects or suspected defects in Seller’s services of which Client becomes aware, so that Seller may take measures to minimize the consequences of such a defect. Client further agrees to impose a similar notification requirement on all contractors in its Client/Contractor contract and shall require all subcontracts at any level to contain a like requirement. Should legal liability for the defects exist, failure by Client and Client’s contractors or subcontractors to notify Seller shall relieve Seller of any liability for costs of remedying the defects above, the sum such remedy would have cost had prompt notification been given when such defects were first discovered, and will relieve Seller of any liability to Client or third parties in relation to the defect.
PAYMENTS TO THE SELLER:
Payments to Seller shall not be withheld, postponed, reduced or made contingent on the construction, completion or success of the Project or upon receipt by Client of offsetting reimbursement or credit from other parties who may have caused additional services or expenses. No withholdings, deductions, reductions or offsets shall be made from Seller compensation for any reason unless Seller has been found by a court of competent jurisdiction to be legally liable for such amounts.
Client agrees that Seller is not responsible for damages arising directly or indirectly from any delays for causes beyond Seller’s control. For purposes of this Agreement, such causes include, but are not limited to, strikes or other labor disputes; severe weather disruptions or other natural disasters or acts of God; fires; riots; war or other emergencies; epidemics; pandemics; failure of any government agency to act in timely manner; failure of performance by Client or Client’s contractors or consultants; or discovery of any hazardous substances or differing site conditions. In addition, if the delays resulting from any such causes increase the cost or time required by Seller to perform its services in an orderly and efficient manner, Seller shall be entitled to a reasonable adjustment in delivering schedule and compensation.
In an effort to resolve any conflicts that arise during the design and construction of the Project or following the completion of the Project, Client and Seller agree that all disputes between them arising out of or relating to this Agreement or the Project shall be submitted to nonbinding mediation.
Client and Seller further agree to include a similar mediation provision in all agreements with independent contractors and consultants retained for the Project and to require all independent contractors and consultants also to include a similar mediation provision in all agreements with their subcontractors, subconsultants, suppliers and fabricators, thereby providing for mediation as the primary method for dispute resolution among the parties to all of those agreements.
DELIVERY OF ELECTRONIC FILES:
In accepting and utilizing any drawings, reports and data on any form of electronic media generated and furnished by Seller, Client agrees that all such electronic files are instruments of service of Seller, who shall be deemed the author, and shall retain all common law, statutory law and other rights, without limitation, including copyrights.
Client agrees not to reuse such electronic files, in whole or in part, for any purpose other than for the Project. Client agrees not to transfer these electronic files to others without the prior written consent of Seller. Client further agrees to waive all claims against Seller resulting in any way from any unauthorized changes to or reuse of the electronic files for any other project by anyone other than Seller. Client and Seller agree that any electronic files furnished by either party shall conform to the specifications listed. Any changes to the electronic specifications by either Client or Seller are subject to review and acceptance by the other party. If Seller is required to expend additional effort to incorporate changes to the electronic file specifications made by Client, these efforts shall be compensated for as Additional Services Costs.
Electronic files furnished by either party shall be subject to an acceptance period of (30) days during which the receiving party agrees to perform appropriate acceptance tests. The party furnishing the electronic files shall correct any discrepancies or errors detected and reported within the acceptance period. After the acceptance period, the electronic files shall be deemed to be accepted and neither party shall have any obligation to correct errors or maintain electronic files.
Client is aware that differences may exist between the electronic files delivered and the printed hard-copy construction documents. In the event of a conflict between the signed construction documents prepared by Seller and electronic files, the signed or sealed hard-copy construction documents shall govern. In addition, Client agrees, to the fullest extent permitted by law, to indemnify and hold harmless Seller, its officers, directors, employees and subconsultants (collectively, “Seller Indemnified Parties”) against all damages, liabilities or costs, including reasonable solicitors’ fees and defense costs, arising from any changes made by anyone other than Seller or from any reuse of the electronic files without the prior written consent of Seller. Under no circumstances shall delivery of electronic files for use by Client be deemed a sale by Seller and Seller makes no warranties, either express or implied, of merchantability and fitness for any particular purpose. In no event shall Seller or Seller Indemnified Parties be liable for indirect or consequential damages as a result of Client’s use or reuse of the electronic files.
GOVERNING LAW AND JURISDICTION:
Client and Seller agree that this Agreement and any legal actions concerning its validity, interpretation and performance shall be governed by the laws of the Province of Ontario, and the federal laws of Canada applicable therein without regard to any conflict of laws provisions.
It is further agreed that any legal action between Client and Seller arising out of this Agreement or the performance of the services shall be brought in a court of competent jurisdiction in the Province of Ontario, Canada.
DEFINITION OF “HAZARDOUS MATERIALS”:
As used in this Agreement the term hazardous materials shall mean any substances, including without limitation asbestos, toxic or hazardous waste, PCBs, combustible gases and materials, petroleum or radioactive materials (as each of these is defined in applicable federal statutes) or any other substances under any conditions and in such quantities as would pose a substantial damager to persons or property exposed to such substances at or near the Project site.
HAZARDOUS MATERIALS – SUSPENSION OF SERVICES:
Both parties acknowledge that Seller’s scope of services does not include any services related to the presence, handling or containment of any hazardous materials.
In the event Seller or any other person or entity involved in the project encounters any hazardous materials, or should it become known to Seller that such materials may be present on or about the jobsite or any adjacent areas that may affect the performance of Seller’s services, Seller may at its sole option and without liability for consequential or any other damages, suspend performance of its services under this Agreement until Client retains appropriate qualified consultants and/or contactors to identify and abate or remove the hazardous materials and warrants that the jobsite is in full compliance with all applicable laws and regulations.
Seller agrees to the fullest extent permitted by law, but subject to all of the provisions of this Agreement, to indemnify and hold harmless Client, its officers, directors and employees (collectively, “Client”) against all damages, liabilities or costs, including reasonable solicitors’ fees and defense costs, to the extent caused by Seller’s negligent performance of professional services under this Agreement and the negligent performance of its subconsultants or anyone for whom Seller is legally liable.
Client agrees, to the fullest extent permitted by law, to indemnify and hold harmless Seller, its officers, directors, employees and subconsultants (collectively, “Seller”) against all damages, liabilities or costs, including reasonable solicitors’ fees and defense costs, to the extent caused by Client’s negligent acts in connection with the Project and the acts of its contractors, subcontractors or consultants or anyone for whom Client is legally liable.
Seller shall not be obligated to indemnify Client in any manner whatsoever for Client’s own negligence or for the negligence of others.
Neither the professional activities of Seller, nor the presence of Seller or its employees and subconsultants at a construction/project site, shall impose any duty on Seller, nor relieve Client and Client’s CM of their obligations, duties and responsibilities including, but not limited to, construction means, methods, sequence, techniques or procedures necessary for performing, superintending and coordinating the work in accordance with the applicable construction documents and any health and safety precautions required by any regulatory agencies. Seller and its personnel have no authority to exercise any control over any CM, construction contractor or their respective employees in connection with their work or any health or safety programs or procedures. Client agrees that Client shall be solely responsible for jobsite and worker safety and warrants that this intent shall be carried out in Client’s contract with Client’s CM or the general contractor. Client also agrees that Client’s CM or Client’s general contractor, as the case may be, shall defend and indemnify Client, Seller and Seller’s subconsultants. Client also agrees that Client, Seller and Seller subconsultants shall be made additional insured’s under Client’s and Client’s CM; or general contractor’s policies of general liability insurance.
LIMITATION OF LIABILITY:
To the maximum extent permitted by law, in no event shall Seller be liable to Client or any third party, under any cause of action or legal theory pleaded or asserted, in respect of: a) special, incidental, consequential, punitive or indirect damages; b) lost profits, revenues, data, Client opportunities, business, anticipated savings, or goodwill; and c) business interruption. In any case, any damages awarded against the Seller shall be limited to the total fees paid to Seller by Client for the product or service which are subject of these terms and conditions.]
MAINTENANCE/WEAR AND TEAR:
All structures are subject to wear and tear and environmental and man-made exposures. As a result, all structures require regular and frequent monitoring and maintenance to prevent damage and deterioration. Such monitoring and maintenance is the sole responsibility of Client. Seller shall have no responsibility for such issues or resulting damages. If routine inspections and maintenance of the project are not properly performed in accordance with the Instructions and Manual provided to Client by the Seller, damage (which may include but not be limited to mold) to the structures may occur, for which Seller cannot be held responsible. Such damage to the structures and any incidents and/or injuries that result from such damage will be solely the responsibility of Client and Client will indemnify Seller from any third party claims, actions, and/or damages in relation to same.
Client agrees that Seller shall have no responsibility for any portion of the Project designed by other consultants engaged by Client. Seller shall not be required to check or verify other consultants’ construction documents or reports and shall be entitled to rely on the accuracy and completeness thereof, as well as the compliance of such documents or reports with applicable laws, codes, statutes, ordinances and regulations.
Client agrees, to the fullest extent permitted by law, to indemnify and hold harmless Seller from any damages, liabilities or costs, including reasonable solicitors’ fees and defense costs, arising out of or connected in any way with the services performed by other consultants engaged by Client.
Seller agrees to maintain written quality control procedures for the general guidance of its staff in providing services under this Agreement. Such procedures may be modified by Seller from time to time as appropriate to Seller’s professional practice. Seller shall utilize these quality control procedures to the extent practicable in rendering services in accordance with the standard of professional care.
Upon completion of the Project, Seller shall compile for and deliver to Client a reproducible set of Record Documents based upon the marked –up record drawings, addenda, change orders and other data furnished by Seller or other third parties. These Record Documents will show significant changes made during construction. Because these Record Documents are based on unverified information provided by other parties, which Seller is entitled to assume will be reliable, Seller cannot and does not warrant their accuracy.
WARNING REGARDING RECORD DOCUMENTS:
Record Documents will be prepared based on information provided by others. Seller is under no obligation or duty to verify the accuracy and/or completeness of such information and will not do so. Seller shall not be responsible for any errors or omissions that may be incorporated as a result or erroneous information provided by others.
Upon request by Client, Seller shall evaluate and make recommendations regarding substitutions of materials, products or equipment proposed by Client’s consultants or contractors. Seller shall be compensated for these services as “Additional Services”, as well as any for services required to modify and coordinate the construction documents prepared by Seller with those of Seller’s subconsultants and Client’s consultants. Seller also shall be entitled to adjustment(s) in schedule caused by this additional effort.
SUSPENSION OF SERVICES:
If the Project and Seller’s services are suspended by Client for more than thirty (30) calendar days, consecutive or in the aggregate, over the term of this Agreement, Seller shall be compensated for all services performed and reimbursable expenses incurred prior to the receipt of notice of suspension. In addition, upon resumption of services, Client shall compensate Seller for expenses incurred as a result of the suspension and resumption of its services, and Seller’s schedule and fees for the remainder of the Project shall be equitably adjusted.
If Seller’s services are suspended for more than ninety (90) days, consecutive or in the aggregate, Seller may terminate this Agreement upon giving not less than five (5) calendar days’ written notice to Client.
If Client is in breach of the payment terms or otherwise is in material breach of this Agreement, Seller may suspend performance of services upon five (5) calendar days’ notice to Client. Seller shall have no liability to Client, and Client agrees to make no claim for any delay or damage as a result of such suspension caused by any breach of this Agreement by Client. Upon receipt of payment in full of all outstanding sums due from Client, or curing of such other breach, which caused Seller to suspend services, Seller shall resume services and there shall be an equitable adjustment to the remaining project schedule and fees as a result of the suspension.
In the event Client has paid a retainer to Seller, Seller shall be entitled to apply the retainer to cover any sums due from Client up to the date of suspension. Prior to resuming services after such suspension, Client shall remit to Seller sufficient funds to replenish the retainer to its full prior amount.
G10 CUSTOMER PORTAL USERS:
Client’s access to Seller’s Web Portal (G10) should be strictly used to access Client information, the information contained on this site is the property of Seller, no user should share or utilize this site for anything other than its dealings with Seller.
This site is only to be used and accessed under Seller’s direction, and Seller has the right to terminate Client’s account if Seller finds any abuse of Client Portal or in the case where Client is no longer a client of Seller.
In the event of termination of this Agreement by either party in accordance with the provisions of this Agreement, Client shall within fifteen (15) calendar days of termination pay Seller for all services rendered and all reimbursable costs incurred by Seller up to the date of termination, in accordance with the payment provisions of this Agreement.
Client may terminate this Agreement for Client’s convenience and without cause upon giving Seller not less than fourteen (14) calendar days’ prior written notice.
Either party may terminate this Agreement for cause upon giving the other party not less than seven (7) calendar days’ written notice for any of the following reasons:
- Material failure by the other party to perform in accordance with the provisions of this Agreement and through no fault of the terminating party;
- Assignment of this Agreement or transfer of the Project by either party to any other entity without the prior written consent of the other party;
- Suspension of the Project and Seller’s services by Client for more than ninety (90) calendar days, consecutive or in the aggregate;
- Material changes in the conditions or circumstances under which this Agreement was entered into, the scope of services to be provided by Seller, or the nature of the Project and the failure of the parties to reach agreement on the compensation and schedule adjustments necessitated by such changes.
In the event of any termination that is not based upon the fault of Seller, Client shall pay Seller, in addition to payment for services rendered and reimbursable costs incurred, for all expenses reasonable incurred by Seller in connection with the orderly termination of this Agreement, including but not limited to demobilization, reassignment of personnel, associated overhead costs and all other expenses directly resulting from the termination.
SCHEDULE FOR RENDERING SERVICES:
Seller shall prepare and submit for Client approval a schedule for the performance of Seller’s services. This schedule shall include reasonable allowances for review and approval times required by Client, performance of services by Client’s consultants, and review and approval times required by public authorities having jurisdiction over the Project. This schedule shall be equitably adjusted as the Project progresses, allowing for changes in scope, character or size of the Project requested by Client, or for delays or other causes beyond Seller’s reasonable control.
NOTICE OF DELAY:
If Seller becomes aware of delays due to time allowance for review and approval being exceeded, delay by Client, Client’s consultants or any other cause beyond the control of Seller, which will result in the schedule for performance of Seller services not being met, Seller shall promptly notify Client.
If Client becomes aware of any delays or other causes that will affect Seller’s schedule, Client shall promptly notify Seller. In either event, Seller’s schedule for performance of its services shall be equitably adjusted.
If Seller or any of its sub-contractors as a result of Client, Client’s contractors, agents or employees are delayed for a period of ½ hour or more, then Seller or its sub-contractors has the right to charge out its hourly rate for the down-time to Client for such time that they are unable to perform there work, Client will adjust its purchase order accordingly and pay this in addition to any other losses incurred as a result of the down-time.
In the event Client, Client’s contractors or subcontractors, or anyone for whom Client is legally liable or over whom Client exercises control, makes or permits to be made any changes to any reports, plans, specifications or other construction documents prepared by Seller without obtaining Seller’s prior written consent, Client shall assume full responsibility for the results of such changes. Therefore Client agrees to waive any claim against Seller and to release Seller from any liability arising directly or indirectly from such changes.
In addition, Client agrees, to the fullest extent permitted by law, to indemnify and hold harmless Seller from any damages, liabilities or costs, including reasonable solicitors’ fees and costs of defense, arising from such changes.
In addition, Client agrees to include in any contracts for construction appropriate language that prohibits Client’s contractor or CM, or any subcontractors of any tier from making any changes or modifications to Seller’s construction documents without prior written approval of Seller and that further requires Client’s Contractor or CM to indemnify both Seller and Client from any liability or cost arising from such changes made without such proper authorization.
TWO-YEAR EQUIPMENT WARRANTY:
Seller warrants all fabricated and supplied equipment (“Equipment”), to be free from defects in material and workmanship for a period of two (2) years commencing on the date of shipment to the first retail purchaser (“Purchaser”). This warranty does not extend to equipment which has been subject to misuse, use in excess of rated capacity, negligent operation, use beyond Seller’s published service factors, improper installation or maintenance, and does not apply to any Equipment which has been repaired or altered without Seller’s written authorization. Written notice of any claimed defect must be given to Seller within thirty (30) days after such defect is discovered. Seller’s obligation, and Purchaser’s sole remedy under this Warranty is limited to, at Seller’s sole discretion, the replacement or repair of the Equipment at Seller’s factory or at a location approved by Seller. Client is responsible for all freight and transportation costs relating to the repair or replacement of the Equipment.
THE FOREGOING WARRANTY IS ESPRESSLY IN LIEU OF ALL OTHER WARRANTIES WHATSOEVER WHETHER EXPRESS, IMPLIED, OR STATUTORY. SELLER MAKES NO WARRANTY AS TO THE MERCHANTABLIITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE EQUIPMENT AND MAKES NO OTHER WARRANTY, EITHER EXPRESS OR IMPLIED.
Seller shall not be liable, under any circumstances, for any indirect, special or consequential damages including, but not limited to, lost profits, increased operating costs or loss or production. This Warranty shall not extend to any components or accessories not manufactured by Seller.
All products, equipment, materials shall conform to the standard specifications established by Seller and shall comply with applicable codes and standards.
Products sold hereunder shall be delivered by Seller at Client’s expense and shall be shipped by Seller or its agent to Client’s designated point of shipment.
Payment and Interest:
Seller may demand different terms of payment from those set forth on the face hereof whenever Client’s financial position requires such change. Seller shall have the right to charge on any amount unpaid on the 10th of the month following delivery, interest each month at a rate of 1 1/2% per month (18% per annum). Client agrees to pay all taxes and duties (if any) upon the sale and purchase of products hereunder.
Client shall inspect the products supplied by Seller upon their arrival. Should Client find that such products do not conform to the description herein, Client shall give written notice to the effect to Seller within fifteen (15) days from the arrival of such products. Failure of Client to give Seller such notice shall constitute irrevocable acceptance of such products and Client shall be bound to pay the full price thereof. If after irrevocable acceptance of such products, Client with Seller’s prior written consent returns such products to Seller a handling charge of 20% of invoice value will be levied on all such products returned for credit.
Warranties and Liabilities:
Except for the express warranties provided above, all warranties, whether express or implied, all guaranties and all representations as to performance including implied warranties or merchantability or fitness for a particular purpose, with respect to products supplied by Seller are hereby expressly excluded and disclaimed by Seller. No agent, employee or representative of Seller has any authority to bind Seller to any representation or warranty relating to such products other than as specifically provided herein.
Seller makes no warranty whatsoever with respect to products manufactured by others, but agrees to assign the manufacturer’s warranty to Client.
Limitation on Intended Users:
Except as expressly provided by Seller in writing, the products supplied by Seller are intended for ultimate purchase by commercial industrial users and for operation by persons trained and experienced in the use and maintenance of such equipment. All users must read the entire Instructions and Manual Provided with such products. Such products are NOT intended for consumers or consumer use. Seller’s warranties do not extend to consumers, and no Client is authorized to extend Seller’ warranties to any consumer.
None of these terms and conditions can be modified except by a writing signed by an authorized officer of both Seller and Client.
Failure by Seller to require performance by Client of any provision hereof shall in no way affect the full right of Seller to require performance at any time thereafter nor shall the waiver of Seller of a breach of any provision hereof be taken as a waiver of the provision itself.
Return of Products:
No claims allowed unless made within fourteen (14) days of receipt of products. No products may be returned without the prior permission of Seller. All returned products will be subject to a 20% handling charge, when no fault exists on the part of the Seller. All special orders are non-returnable.
All orders sold on credit are subject to Seller’s Credit Department approval.
Title to Products:
Title to product remains with Seller until the total purchase price of product is paid.
Client agrees to pay Seller’s prices set out on invoice. Client agrees to pay taxes as indicated on invoice unless Seller receives acceptable exemption certificates.
Seller’s sales personnel are not authorized to modify these terms and conditions or modify Client’s credit terms. Terms are subject to change by Seller with reasonable notice to Client.
All terms and conditions apply once Client agrees to purchase product. Quotations on special promotion products are only valid until end of promotion period.
Orders under $500.00 are credit card only (exceptions apply); Orders over $500.00 Net 30 days OAC; Orders over $5000 are subject to deposits and a monthly progress billing schedule and will be determined on a per project basis.
Increase cost in products and/or raw materials will be billed to Client at agreed upon discount levels. The Seller will notify Client upon receipt of purchaser order of any price increase. Inspection, PM and Hourly rates will increase annually in the amount of the Bank of Canada’s Consumer Price Index.
Additional Site Visits:
Seller will make every effort to adhere to the agreed schedule for site visits. Should Seller’s technician(s) arrive on site to complete the scope of work and are not able to do so due to activities or changes which are out of Seller’s control, Seller will apply an additional charge to make a return visit to complete the scheduled work.
Seller will make every effort to locate all the equipment required for inspections, and will be diligent in finding it, however if Seller’s technicians are unable to locate equipment, or complete equipment that may be in service on the scheduled date, Seller will charge an additional charge to make a return visit to complete the remaining work.