Terms and Conditions
(a) The applicable Purchase Order, together with these General Terms and Conditions, and any other schedules attached to the Purchase Order (collectively, this “Agreement”) constitute the entire and exclusive agreement between Seller and Hoelscher Dewatering Inc. (“Buyer”). Any amendment to the terms of this Agreement shall only be effective if made in writing and signed by both parties.
(b) Prior to acceptance of a Purchase Order, Seller shall review the supporting documentation provided by the Buyer for possible inconsistencies related to the proposed Goods and Services. Supplier shall inform Buyer about any possible inconsistencies.
(c) This Agreement will be deemed accepted by Seller upon the first of the following to occur: (i) Seller signing the Purchase Order; or (ii) any performance by Seller under this Agreement. If the Supplier does not accept a Purchase Order within two (2) business days of receipt, Buyer shall be entitled to withdraw the Purchase Order.
(d) This Agreement expressly excludes any of Seller’s terms and conditions of sale or any other documents issued by Seller in connection with the Goods and Services. Any additional or different terms proposed by Seller in any quotation, acknowledgement or any other documents shall be void, unless agreed to pursuant to this Agreement.
(a) “Delivery Date” means the date or dates specified in the Payment and Milestone Schedule included in this Agreement by which Seller is required to deliver the Goods and Services.
(b) “Goods” means the equipment and materials specified in this Agreement to be furnished by Seller.
(c) “Purchase Order” means any purchase order which references this Agreement.
(d) “Purchase Price” means the total amount specified in this Agreement to be paid to Seller for the Goods and Services.
(e) “Seller” has the meaning set out in the Purchase Order.
(f) “Services” means the services that Seller is to perform for Buyer specified in this Agreement, and shall include the installation of Goods.
3. Price and Payment
(a) Unless otherwise specified in this Agreement, the Purchase Price includes all duties, customs, tariffs, imposts, government-imposed surcharges, permits, fees, taxes, including any applicable sales tax, overhead, packaging, marking, handling, freight, shipping, and delivery charges, and any other costs that may be incurred by Seller in relation to the performance of the Goods and Services, and shall not be adjusted for any reason, except as provided in Section 4 (Changes) of these General Terms and Conditions.
(b) The Purchase Price shall also include any cost related to instruction or training of Buyer or Buyer’s customer’s personnel in respect of the operation and maintenance of the Goods and Services.
(c) Unless otherwise specified in the Payment and Milestone Schedule, Buyer shall pay Seller within 30 days after the later of: (i) the Delivery Date; (ii) the date of Buyer’s acceptance of all the Goods and Services; or (iii) Buyer’s receipt of an invoice prepared in accordance with this Agreement. Buyer is permitted to hold back any amounts required to be held back by applicable law. If the invoice is not issued in the form as requested or the required documentation is lacking, the invoice will not be processed and will be returned in original. Rebate claims by or interest charges of Seller will not be accepted by Buyer. The period for payment does not begin unless and until Buyer has received an invoice including all required information in accordance with this Agreement.
(d) Payment under this Agreement does not preclude Buyer from making a claim in respect of Goods and Services not properly delivered or performed. In the event of any delivery discrepancies or errors, Buyer shall be entitled to withhold a portion of the payment until proper execution. Buyer further has the right to set off any loss, damage, liability or claim which it may have against Seller under any agreement Buyer has entered into with Seller against payment Buyer owes to Seller.
(e) If a discount is allowed for payment within a certain time, the time for taking the discount will not begin until the later of (i) the Delivery Date; (ii) the date of Buyer’s acceptance of all the Goods and Services; or (iii) Buyer’s receipt of an invoice prepared in accordance with this Agreement. Minimum quantity surcharges shall not be paid, unless otherwise agreed.
(f) In the event of advance payments, Seller shall furnish an appropriate security, such as a guarantee.
(g) No amounts shall be paid by Buyer for site visits, the preparation of quotations or similar preliminary expenses.
(h) Buyer is entitled to deduct applicable withholding taxes from the price and submit such deductions on behalf of Seller to the tax authorities, as long as no valid withholding tax exemption is provided to Buyer.
(i) Seller shall notify Buyer in writing prior to executing the Purchase Order if the documents and information provided to it are not sufficient to establish all plans necessary to execute the Goods and Services for the Purchase Price. Seller is not entitled to claim for additional cost due to insufficient information if notice is not given.
(a) Buyer shall have the right to order changes to the Goods and Services, including, without limitation, addition or deduction of quantities ordered, changes in applicable specifications or drawings, or changes in the time of delivery.
(b) When a change to the Goods and Services is proposed, Buyer shall provide notice in writing to Seller describing the change to the Goods and Services. Seller shall propose, in a form and in detail acceptable to Buyer and within such time as may be reasonably prescribed by Buyer, an amount of adjustment to the Purchase Price or Delivery Date, if any, for the change to the Goods and Services. When Buyer and Seller agree to the adjustments to the Purchase Price and the Delivery Date, if any, such agreement shall be recorded in writing and signed by both parties (a “Change Order”).
(c) No changes to the Goods and Services shall be undertaken or commenced without a Change Order and any such Change Order will be considered incorporated into this Agreement.
(a) Delivery shall be in accordance with the Incoterms 2010 specification set out in the applicable Purchase Order. Buyer reserves the right to select the shipping company or freight forwarder.
(b) Seller will preserve, package and handle the Goods so as to protect the Goods from loss or damage and in accordance with best commercial practices in the absence of any specifications which Buyer may provide. Only environmentally friendly packaging materials shall be used. Seller is obligated to take back the packaging free of charge for Buyer and shall bear the transportation costs. If packaging is invoiced separately to Buyer, Buyer shall be entitled to return to Seller freight paid the packaging which is in a good condition against payment of 2/3 of the value resulting from the invoice.
(c) Time is of the essence in Seller’s performance of its obligations under this Agreement. Seller will immediately notify Buyer if Seller’s timely performance under this Agreement is delayed or is likely to be delayed, stating the reason and anticipated duration of the delay. Buyer’s acceptance of Seller’s notice will not constitute waiver of any of Seller’s obligations. In the case of such delay, Buyer is entitled to terminate the Agreement upon written notice.
(d) If Seller delivers Goods and Services after the Delivery Date, Buyer may refuse to accept such Goods and Services and hold Seller liable for all costs and damages incurred by Buyer caused by the delay. Buyer shall not be liable for Goods and Services delivered in advance of the Delivery Date or in excess of this Agreement.
(e) Upon Buyer’s request, Seller shall inform Buyer of progress on aspects of the Scope of Goods and Services, particularly if agreed or originally promised deadlines were missed or are anticipated to be missed by the Seller or if Buyer requires the information for its own purposes.
(f) If Seller delivers Goods having preferential origin status or other trade designation under an international agreement, Seller shall to provide Buyer with a valid declaration in respect of such designation.
(g) Notwithstanding any Incoterms 2010 specification set out in the applicable Purchase Order, title and risk of loss for the Goods shall pass to Buyer upon acceptance of the Goods in accordance with Section 7 (Reports, Inspection and Acceptance) of these General Terms and Conditions.
6. Services and Installation
Where this Agreement requires Services to be performed by Seller, the following additional terms apply:
(a) Seller must take precautions to protect all property and persons from damage or injury arising out of the Services. Seller must comply with all applicable laws and regulations prescribed by any relevant governmental authority, including (without limitation) all fire, health, safety, employment, labour, workplace safety and insurance and other applicable laws and regulations. Seller is obliged to equip its personnel on site with personal protective equipment;
(b) All Services must be performed in accordance with current, prudent and generally accepted industry practices by qualified personnel, trained and experienced in the appropriate fields;
(c) Seller must carry on the Services so that the premises are at all times clean, orderly and free from debris. Upon completion of the Services, Seller must remove all unused materials or Seller’s equipment, clean up all debris, and leave the premises clean, orderly and in good condition;
(d) Where Services are performed on Buyer’s premises or premises under Buyer’s control, Seller must comply with all reasonable directions and requests of Buyer and with Buyer’s health and safety rules, and must require its personnel to so comply. Buyer has the right to exclude Seller’s personnel from Buyer’s premises who do not comply with such directions, requests or rules and, at Buyer’s option, Buyer may terminate this Agreement if Seller or its personnel fail to comply with this provision;
(e) All tools, equipment, models, drawings or other materials paid for or furnished by Buyer for the purpose of performing the Services are and remain exclusively the property of Buyer. Seller must use such property only for the purposes of performing the Services and return it to Buyer promptly upon request;
(f) In the case where any employees of the Supplier are fulfilling their obligations on a construction site, the following documents have to be available and must be provided on site upon request:
(i) WSIB clearance;
(ii) Relevant health and safety certification; and
(iii) Union affiliation.
7. Reports, Inspection and Acceptance
(a) Payment for the Goods and Services will be subject to Buyer’s inspection and acceptance of the Goods and Services, and Seller will provide all reasonable assistance to any representative of Buyer for the purpose of inspection, including, if applicable, permitting any representative of Buyer to attend at the places(s) of performance by Seller.
(b) Payment for the Goods and Services prior to inspection will not constitute an acceptance thereof. Buyer may reject any or all of the Goods and Services that does not conform to the applicable requirements. At Buyer’s option, Buyer may (i) return the non-conforming Goods to Buyer for a refund or credit; (ii) require Seller to repair or re-perform the non-conforming Goods and Services so that it meets the specifications; or (iii)require Seller to replace the non-conforming Goods. Buyer will notify Seller in writing of its acceptance of the Goods and Services.
(c) Seller shall maintain complete and adequate records in respect of the Goods and Services and shall provide Buyer with access of such records upon Buyer’s request. During the performance of this Agreement and for the duration of the applicable warranty period, Buyer has the right to visit Seller’s facilities to monitor the Goods being manufactured for Buyer. Buyer may audit the product, Seller’s production/manufacturing processes, any applicable quality control system, and all applicable records to determine compliance with the requirements of this Agreement. Any such inspection by Buyer, whether during manufacture, prior to or after the Delivery Date, shall not, in and of itself, constitute acceptance of any Goods and Services.
8. Technical Data
Seller agrees that all designs, drawings, field notes, specifications, software, and any other documents and materials relating to this Agreement whether written, audio, video, or other electronic format (“Technical Data”) developed for Buyer under this Agreement and listed in the Purchase Order (List of Technical Documents and Drawings) shall be the property of Buyer. Seller shall provide all Technical Data to the Buyer, if possible, four (4) weeks prior to the completion of the Goods and Services but in no case later than the date on which the Goods and Services is completed. Seller agrees to assign or procure the assignment of the copyrights for all such Technical Data to Buyer. If the Goods and Services is provided with embedded or included software, whether created by Seller or a third party, Seller grants Buyer a perpetual and irrevocable right to use the software in connection with the Goods and Services. Any Buyer plans or documents provided to the Seller are only permitted to be used for the execution of the Goods and Services. Publication or provision to third parties which are not directly involved in the Goods and Services is prohibited.
(a) Seller expressly warrants that:
(i) it has the full power to enter into this Agreement and has marketable title to the Goods and the right to convey such Goods;
(ii) the Goods and Services and Buyer’s use thereof does not and will not infringe upon any patents, trademarks, industrial design, copyright or similar rights;
(iii) the Goods and Services conforms to this Agreement and all Technical Data and is free from defects in material, workmanship and design;
(iv) the Goods are of good and merchantable quality, including all implied warranties or merchant-ability and fitness for a particular use as represented;
(v) the Goods and Services are free from all liens, claims and encumbrances; and
(vi) the Goods and Services comply with all applicable laws.
(b) Buyer shall promptly inform Seller in writing of any Goods and Services that fails to meet the warranties set out in Subsection 10(a) of these General Terms and Conditions. Seller shall, within 5 business days or as otherwise agreed to by the parties in writing, and without cost to Buyer, re-perform the Services and/or replace or repair any of the Goods or any part thereof if the whole or any part of the Goods and Services fails to meet the warranties set out in Subsection 10(a) of these General Terms and Conditions. The warranties contained in this Agreement will continue in effect for the period specified in the Purchase Order commencing on the date of acceptance of the applicable Goods and Services.
(c) Seller hereby passes through to Buyer all manufacturer representations, warranties and indemnities for the Goods and Services at no additional cost to Buyer.
(d) In case Seller does not rectify defective Services within a period reasonably set by Buyer, Buyer is entitled to engage a third party to rectify the defective Services on behalf and at the cost of Seller.
(e) In case the rectification by Seller is unacceptable to Buyer or is impossible or would incur unreasonably costs and therefore is rejected by Seller, Buyer is entitled to reduce the Purchase Price accordingly.
(f) Buyer is entitled in its discretion to retain free of interest 10% of the Purchase Price to secure its warranty claims.
(g) Seller is entitled to substitute the retained amount by a guarantee payable on first demand.
(h) Buyer may request originals or copies, as available, of the following documents:
(i) Clearance certificate from the Workplace Safety and Insurance Board or other applicable labour board;
(ii) Certificate of Status of the Supplier;
(iii) Proof of insurance;
(iv) If available, evidence in respect of quality management; and
(v) Evidence or proof of certification of relevant skills or qualifications.
(a) Buyer has the right to terminate this Agreement at any time and for any reason, upon 15 days written notice to Seller. If Buyer exercises its right to terminate this Agreement, Seller is entitled to have its unrecoverable expenses paid in connection with the terminated Agreement, but Seller is not entitled to make a claim against Buyer for loss of earnings on the remaining part of the terminated Agreement. Buyer will have no further payment obligation in connection with any such termination.
(b) Without prejudice to any other rights and remedies of Buyer under this Agreement or otherwise at law, Buyer may, without further obligation towards Seller, terminate this Agreement by written notice to Seller if Seller breaches any of the terms of this Agreement and fails to correct such breach within a period of 7 days (or such longer period as Buyer may agree).
Seller shall take out and maintain insurance policies adequate to cover its liabilities here under including, as applicable, professional liability insurance and general (comprehensive commercial) liability insurance including product liability coverage, all-risk contractors’ equipment insurance, and automobile liability insurance, with such insurers and providing for such amounts of coverage as may be reasonably required from Buyer. If requested by Buyer, Buyer will be named as an additional insured under any such policy. Seller shall, if so requested, produce to Buyer evidence satisfactory to Buyer that such insurance has been affected and will be maintained thereafter as required.
12. Indemnification and Limitation of Liability
(a) Seller will indemnify and save harmless Buyer, its directors, officers, employees and agents, from and against all claims, losses, expenses, damages, causes of action and liabilities of every kind and nature, arising from or out of (i) any breach of any of Seller’s obligations or warranties; (ii) any omissions/ misrepresentation by Seller, its officers, employees or agents, whether negligent or otherwise; (iii) any actual or alleged infringement of patents, trademarks, copyrights or other intellectual property with respect to any Goods and Services.
(b) BUYER’S LIABILITY WITH RESPECT TO ALL CLAIMS OF ANY KIND, WHETHER BASED ON CONTRACT, INDEMNITY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, FOR ALL LOSSES OR DAMAGES ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THIS AGREEMENT, SHALL IN NO CASE EXCEED THE PRICE ALLOCABLE TO THE SPECIFIC GOODS AND SERVICES THAT GIVE RISE TO THE CLAIM. IN NO EVENT SHALL BUYER, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND AFFILIATES BE LIABLE FOR SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, AND SELLER WILL INDEMNIFY BUYER, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND AFFILIATES AGAINST ANY SUCH CLAIMS.
13. Force Majeure
“Force Majeure” means any delay or failure of either party to meet its obligations under this Agreement for a reason beyond the reasonable control of the invoking party, without the fault or negligence of the invoking party, such reasons including, but not limited to, any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, illness or injury to workers, delayed or failed deliveries by subcontractors, power failure, damage or destruction of production facilities, lighting strike, riot, insurrection, transportation delays or defaults, delay in supply or shortages of fuel, components, raw materials or supplies, labour shortage, acts or omissions of third parties, action of any governmental authority. In such event, the invoking party will not be held to have defaulted on its contractual obligations to the extent that its performance has been hindered or prevented by Force Majeure. Upon invoking this provision, the invoking party will (i) immediately notify the other party, (ii) make every effort to remedy the cause of non-performance, and (iii) perform the entirety of its obligations as soon as this cause has been remedied, the invoking party being released from its contractual obligations until such time as the cause has been remedied. This Section 14 shall not preclude Buyer from terminating this Agreement in accordance with Section 11(a) of these General Terms and Conditions.
Seller agrees not to disclose to others or to use any Confidential Information or materials of Buyer acquired in connection with the performance of this Agreement, and will protect same using no less than reasonable care. This obligation shall survive the acceptance of the Goods and Services and/or termination of the Agreement. After the acceptance of the Goods and Services and/or termination of the Agreement, all Confidential Information is to be returned to Buyer, including all copies made, in any form, or, upon written consent, destroyed by Seller. “Confidential Information” shall include, but not be limited to, all Technical Data, business information or plans, customer lists or other customer information, and any other documents and materials relating to the business of Buyer.
15. Assignment and Subcontracting
Seller may not assign any of its rights or delegate any of its obligations under this Agreement without Buyer’s prior written consent. Seller may not subcontract any of its rights or obligations under this Agreement without Buyer’s prior written consent. If Buyer consents to the use of a subcontractor, Seller will: (i) guarantee and will remain liable for the performance of all subcontract obligations; (ii) and make all payments to its subcontractors. If Seller fails to timely pay a subcontractor for work performed, Buyer will have the right, but not the obligation, to pay the subcontractor and offset any amount due to Seller by an amount paid to the subcontractor. Seller will defend, indemnify and hold Buyer harmless for all damages and costs of any kind, without limitation, incurred by Buyer and caused by Seller’s failure to pay a subcontractor.
16. Waiver and Severability
Failure by any party to enforce any term of this Agreement shall not be deemed a waiver of future enforcement of that or any other term. If any provision is held invalid, unlawful or unenforceable to any extent, such provision shall be severed from the remaining provisions which shall continue to be valid to the fullest extent permitted by law.
17. Governing Law
This Agreement will be construed in accordance with, and all disputes will be governed by, the laws of the Province of Ontario and the federal laws of Canada applicable therein without regard to its conflict of law’s provisions. The parties specifically waive application of the UN Convention of Contracts for the International Sale of Goods. Seller irrevocably consents to the exclusive jurisdiction and venue of the courts of the Province of Ontario and irrevocably waives any claim it may have that any proceedings brought in such courts have been brought in an inconvenient forum.
The provisions of this Agreement shall (whether or not expressly stated) survive the completion of the performance of this Agreement.