(UPDATED May 2020. SUBJECT TO CHANGE WITHOUT NOTICE)
The accompanying Agreement, including these Terms, together comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Client’s general terms and conditions of purchase regardless whether or when Client has submitted its order or such terms. Fulfilment of Client’s project does not constitute acceptance of any of Client’s terms and conditions and does not serve to modify or amend these Terms.
Delivery of Goods and Performance of Services
The Goods will be delivered according to the timelines set out in the Agreement, or if not specified in the Agreement, within a reasonable time after the receipt of such Order.
Unless otherwise agreed in writing by the parties, Contractor shall deliver the Goods to the location(s) at which the Services are to be performed (as applicable, the “Delivery Point“) using Contractor’s standard methods for packaging and shipping such Goods. Client shall take delivery of the Goods upon delivery of such Goods to the Delivery Point. Client shall be responsible for all loading costs and provide equipment and labour reasonably suited for receipt of the Goods at the Delivery Point.
Contractor may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Client. Each shipment will constitute a separate sale, and Client shall pay for the units shipped whether such shipment is in whole or partial fulfilment of the Goods for the project.
If for any reason Client fails to accept delivery of any of the Goods at the Delivery Point, or if Contractor is unable to deliver the Goods at the Delivery Point on such date because Client has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Client; (ii) the Goods shall be deemed to have been delivered; and (iii) Contractor, at its option, may store the Goods until Client picks them up, whereupon Client shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
Contractor shall use reasonable efforts to meet any performance dates to render the Services specified in the Agreement, and any such dates shall be estimates only.
With respect to the Services, Client shall: (i) cooperate with Contractor in all matters relating to the Services and provide such access to Client’s premises, and such office accommodation and other facilities as may reasonably be requested by Contractor, for the purposes of performing the Services; (ii) respond promptly to any Contractor request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Contractor to perform Services in accordance with the requirements of this Agreement; (iii) provide such customer materials or information as Contractor may request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
The quantity of any instalment of Goods as recorded by Contractor on dispatch from Contractor’s place of business is conclusive evidence of the quantity received by Client on delivery unless Client can provide conclusive evidence proving the contrary.
Contractor shall not be liable for any non-delivery of Goods (even if caused by Contractor’s negligence) unless Client gives written notice to Contractor of the non-delivery within fifteen (15) days of the date when the Goods would in the ordinary course of events have been received.
Any liability of Contractor for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
Client acknowledges and agrees that the remedies set forth in this Section 3 are Client’s exclusive remedies for the non-delivery of Goods. Except as provided under Section 3(c), or returns expressly permitted by Contractor on a case-by-case basis and subject to a restocking fee, all sales of Goods to Client are final and Client has no right to return Goods purchased under this Agreement to Contractor.
Title and Risk of Loss Unless the Agreement expressly states otherwise, title and risk of loss passes to Client upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Client hereby grants to Contractor a lien on and security interest in and to all of the right, title and interest of Client in, to and under the Goods, 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 all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Alberta Personal Property Security Act.
Client’s Acts or Omissions If Contractor’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants or employees, Contractor shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
Inspection and Rejection of Non-conforming Goods
Client shall inspect the Goods upon receipt, and for a period of three (3) days after receipt (“Inspection Period“). Client will be deemed to have accepted the Goods unless it notifies Contractor in writing of any Non-conforming Goods during the Inspection Period and furnishes such written evidence or other documentation as is reasonably required by Contractor. “Non-conforming Goods” means only the following: (i) certain Goods shipped are different than the applicable products identified in Agreement; or (ii) a product’s label or packaging incorrectly identifies its contents.
If Client timely notifies Contractor of any Non-conforming Goods, Contractor shall, in its sole discretion, either: (i) replace such Non-conforming Goods with conforming Goods; or (ii) credit or refund the Price for such Non-conforming Goods, together with any reasonable shipping and handling expenses incurred by Client in connection therewith. Client shall ship, at its expense and risk of loss, the Non-conforming Goods to Contractor’s facility located at Suite 110, 6835 Railway Street S.E., Calgary, AB, T2H 2V6, Canada. If Contractor exercises its option to replace Non-conforming Goods, Contractor shall, after receiving Client’s shipment of Non-conforming Goods, ship to Client, at Client’s expense and risk of loss, the replaced Goods to the applicable Delivery Point.
Client acknowledges and agrees that the remedies set forth in Section 6(b) are Client’s exclusive remedies for the delivery of Non-conforming Goods. Except as provided under Section 6(b), or returns expressly permitted by Contractor on a case-by-case basis and subject to a restocking fee, all sales of Goods to Client are final and Client has no right to return Goods purchased under this Agreement to Contractor.
Client shall purchase the Goods and Services from Contractor at the prices (the “Prices“) set forth in the Agreement.
Client agrees to reimburse Contractor for all reasonable travel and out-of-pocket expenses incurred by Contractor in connection with the performance of the Services.
All Prices are exclusive of all harmonized sales tax, goods and services tax, sales tax, value added tax, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Client. Client shall be responsible for all such charges, costs and taxes; provided, that Client shall not be responsible for any taxes imposed on, or with respect to, Contractor’s income, revenues, gross receipts, personnel or real or personal property or other assets.
Contractor shall invoice Client according to the terms set out in the Agreement.
Client shall pay all invoiced amounts due to Contractor within thirty (30) days from the date of Contractor’s invoice. Client shall make all payments hereunder by wire transfer, cheque or electronic funds transfer and in Canadian dollars.
Client shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Client shall reimburse Contractor for all costs incurred in collecting any late payments, including, without limitation, legal fees solicitor-client basis. In addition to all other remedies available under these Terms or at law (which Contractor does not waive by the exercise of any rights hereunder), Contractor shall be entitled to suspend the delivery of any Goods or performance of any Services if Client fails to pay any amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
Client shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Contractor, whether relating to Contractor’s breach, bankruptcy or otherwise.
Unless otherwise stated in the Agreement, all Goods are products manufactured by a third party (“Third Party Products“). Third Party Products are not covered by any Contractor warranty, but may be covered by a manufacturer’s warranty. For the avoidance of doubt, Contractor makes no representations, conditions or warranties with respect to any Third Party Product, whether express or implied by law, course of dealing, course of performance, usage of trade or otherwise, including any: (i) condition or warranty of merchantability; (ii) condition or warranty of fitness for a particular purpose; (iii) condition or warranty against infringement of intellectual property rights of a third party; (iv) condition or warranty that any Third Party Products will be secure from hacking or other unauthorized intrusion or that Client data will remain private or secure; or (v) condition or warranty that any Third Party Products will protect or maintain the security of Client’s files, network, or endpoints from all malware, viruses or third party malicious attacks.
Contractor warrants to Client that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
Except for the warranties set forth in Section 9(b), Contractor makes no condition or warranty whatsoever with respect to the Goods or Services, whether express or implied by law, course of dealing, course of performance, usage of trade or otherwise, including any condition or warranty: (i) of merchantability; (ii) of fitness for a particular purpose; (iii) against infringement of intellectual property rights of a third party; (iv) that the Goods or Services will be secure from hacking or other unauthorized intrusion or that Client data will remain private or secure; (v) that the Goods or Services will protect or maintain the security of Client’s files, network, or endpoints from all malware, viruses or third party malicious attacks; or (vi) that the Goods or Services will enable Contractor to detect, identify or prevent all security threats, intrusions or data losses.
The Contractor shall not be liable for a breach of the warranties set forth in Section 9(b) unless: (i) Client gives written notice of the defective Services, reasonably described, to Contractor within fifteen (15) days of the time when Client discovers or ought to have discovered the defect; and (ii) Contractor reasonably verifies Client’s claim that the Services are defective.
The Contractor shall not be liable for a breach of the warranty set forth in Section 9(b) if: (i) Client makes any further use of the applicable Goods after giving such notice; (ii) the defect arises because Client failed to follow Contractor’s oral or written instructions as to the storage, installation, use or maintenance of the Goods; or (iii) Client alters or repairs such Goods without the prior written consent of Contractor.
Subject to Section 9(d) and Section 9(e), with respect to any Services subject to a claim under the warranty set forth in Section 9(b), Contractor shall, in its sole discretion, (i) repair or re-perform the applicable Services or (ii) credit or refund the price of such Services at the pro rata contract rate.
The remedies set forth in Section 9(f) shall be the Client’s sole and exclusive remedy and Contractor’s entire liability for any breach of the limited warranties set forth in Section 9(b).
Limitation of Liability
In no event shall Contractor be liable for any consequential, indirect, incidental, special, exemplary, or punitive damages, lost profits or revenues or diminution in value, arising out of or relating to any breach of this Agreement, whether or not the possibility of such damages has been disclosed in advance by Client or could have been reasonably foreseen by either Party, regardless of the legal or equitable theory (contract, tort or otherwise) upon which the claim is based, and notwithstanding the failure of any agreed or other remedy of its essential purpose.
In no event shall Contractor’s aggregate liability arising out of or related to this Agreement, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed the total of the amounts paid to Contractor for the Goods and Services sold under this Agreement.
Insurance. During the term of this Agreement and for a period of one year thereafter, Client shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability and cybersecurity coverage) in a sum no less than $1,000,000 with financially sound and reputable insurers. Upon Contractor’s request, Client shall provide Contractor with a certificate of insurance from Client’s insurer evidencing the insurance coverage specified in these Terms. Client shall provide Contractor with thirty (30) days’ advance written notice in the event of a cancellation or material change in Client’s insurance policy.
Compliance with Law. Each party shall comply with all applicable laws, regulations and ordinances. Each party shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.
Termination. In addition to any remedies that may be provided under this Agreement, Contractor may terminate this Agreement with immediate effect upon written notice to Client, if Client: (a) fails to pay any amount when due under this Agreement and such failure continues for fifteen (15) days after Client’s receipt of written notice of nonpayment; (b) has not otherwise performed or complied with any of the terms of the Agreement, 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.
Waiver. No waiver by Contractor of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Contractor. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or 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.
Confidential Information. All non-public, confidential or proprietary information of Contractor, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, and the terms of this Agreement, disclosed by Contractor to Client, 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 Contractor in writing. Upon Contractor’s request, Client shall promptly return all documents and other materials received from Contractor. Contractor 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 Client at the time of disclosure; or (c) rightfully obtained by Client on a non-confidential basis from a third party.
Non-Solicitation. Throughout Contractor’s performance of the Services and for a period of six (6) months after the completion of the Services, regardless of the reason for cessation of the relationship, Client shall not, without the advance written consent of Contractor (which Contractor may withhold in its sole discretion), directly or indirectly, either as an employee, employer, consultant, agent, principal, partner, shareholder, proprietor, investor, financier, officer or director, or in any other individual or representative capacity: (a) solicit, induce, encourage or facilitate employees or consultants of Contractor to leave the employment of, or consulting relationship with, Contractor including in favour of, or for the benefit of, Client; or (b) solicit, induce, encourage or facilitate any entity that Client knows is a customer of Contractor to alter, modify, vary, diminish or cease such customer’s relationship with Contractor, including in favour of, or for the benefit of, Client.
Force Majeure. The Contractor shall not be liable or responsible to Client, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Contractor including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
Assignment. Client may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Contractor. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Client of any of its obligations under this Agreement. Contractor may assign any or all of its rights or delegate any or all of its obligations under this Agreement without requiring the consent of the Client.
Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this 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.
No Third-Party Beneficiaries. This 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 Terms.
Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the Province of Alberta and the applicable federal laws of Canada, without giving effect to any choice or conflict of law provision or rule (whether of the Province of Alberta or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Province of Alberta. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the courts of the Province of Alberta in each case located in the City of Calgary, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
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 in the Agreement 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), e-mail (with confirmation of receipt) 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.
Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Survival. Provisions of these Terms which by their nature should apply beyond the termination or expiration of this Agreement will remain in force after any termination or expiration of this Agreement.
Amendment and Modification. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative.