Procon Systems

Terms and Conditions

 

TERMS AND CONDITIONS FOR

SALE

, LEASE OR RENTAL OF PRODUCTS AND SERVICES

NOTICE: 

Sale

, Lease or Rental of any Products and/or Services is expressly conditioned on Buyer's assent to these Terms and Conditions. Any additional or different terms proposed by Buyer are expressly objected to and will not be binding upon Seller unless agreed to in writing by Seller; provided however, that no pre-printed facility entry form shall modify these Terms and Conditions even if signed by Seller’s representative. Any oral or written representation, warranty, course of dealing or trade usage not contained in these Terms and Conditions or the Contract shall not be binding on either party. Any order to perform work and Seller's performance of work shall constitute assent to these Terms and Conditions.

 

 

1. Definitions. The following capitalized terms shall be defined as follows:

BUYER means the entity to which Seller is providing Products and Services under the Contract.

CONTRACT means the documents that comprise the agreement between Buyer and Seller for the sale of Products and Services, including these Terms and Conditions, the final quotation, the agreed scope(s) of work, and Seller’s order acknowledgement.

LEASED OR RENTED EQUIPMENT means all Products Seller has agreed to lease or rent to Buyer under the Contract, as well as all equipment of Seller which will be located at the Site during all or some portion of the term of the Contract, such as remote diagnostic equipment.

PRODUCTS means all equipment, parts, materials, supplies, software, and other goods Seller has agreed to supply to Buyer under the Contract.

SELLER means Procon Systems Inc., its affiliates, subcontractors and suppliers, and their respective agents and employees, whether individually or collectively.

SERVICES means all services Seller has agreed to perform for Buyer.

Sitemeans the premises where Products are delivered and/or Services are performed.

TERMS AND CONDITIONS means these Terms and Conditions for Sale, Lease or Rental of Products and Services.

 

2. Changes.  Changes in the Products to be provided hereunder may be accomplished only by a written instrument signed by both Buyer and Seller, stating the parties mutual agreement as to: (i) the change in the scope of the Products or Services; (ii) the adjustment in estimated delivery date, if any; and (iii) the adjustment in the price as determined by Seller.

 

3. Payment. Upon approved credit, the following payment terms apply.

3.1     Buyer shall pay Seller the invoiced amount in Canadian (“Cdn.”) dollars, without right of set-off, within 30 days from date of invoice. Faxed invoices shall be allowed and receipt shall occur on the date the invoice is faced. A printed copy of the invoice may be mailed to Buyer for confirmation purposes only. Buyer agrees to pay interest in the amount of 18% per annum on all invoiced amounts not paid in full when due, and all costs of Seller’s collection efforts including legal fees as rendered on a solicitor and his own client basis.

3.2     Should Seller require payment from Buyer under letter of credit, Buyer shall establish an irrevocable letter of credit confirmed by a Canadian chartered bank that is acceptable to Seller. Buyer shall pay all banking charges.

3.3     If at any time Buyer's financial condition does not justify the continuation of Seller’s performance, Seller may require full or partial payment in advance or shall be entitled to terminate the Contract.

 

4. Taxes and Duties. Prices do not include, and Buyer is responsible for, all taxes, duties, fees, or other charges of any nature (other than taxes imposed on Seller’s net income) imposed by any government authority upon production, sale, shipment, import, or use of Products and performance of Services, including without limitation goods and services tax.

 

5. Delivery; Title Transfer; Risk of Loss; Storage.

5.1  Delivery dates are approximate and are based upon prompt receipt of all necessary information from Buyer. Specifically, time shall not be considered of the essence. Unless expressly stated otherwise in this Contract, delivery of the Products to Buyer shall be deemed to occur at the time of acceptance by a carrier at Seller’s plant or warehouse and delivery of the Products to Buyer shall be deemed complete and possession and all risk of loss with respect to any goods shipped shall pass to Buyer when such goods are delivered to the carrier at such plant or warehouse. All shipment dates are estimates of approximate date of shipment and do not constitute a guaranty of shipment on such dates.

5.2 Title to Services shall pass to Buyer as performed. Notwithstanding the foregoing, for any software provided by Seller hereunder, only the license to the software transfers as set forth herein.

 

6. Excusable Delays. Seller shall not be liable nor in breach or default of its obligations under the Contract to the extent that performance of such obligations is delayed or prevented, directly or indirectly, due to causes beyond its reasonable control, including, but not limited to, acts of God, terrorism, war, epidemics, material shortages, insurrection, acts or omissions of Buyer or Buyer’s suppliers or agents, any act or omission by any governmental authority, strikes, labor disputes, transportation shortages, or vendor non-performance. The delivery or performance date shall be extended for a period equal to the time lost by reason of delay, plus such additional time as may be reasonably necessary to overcome the effect of such excusable delay. If Seller is delayed by any acts or omissions of Buyer, or by the prerequisite work of Buyer’s other contractors or suppliers, Seller shall be entitled to an equitable price and/or performance adjustment.

 

7. Confidentiality. All specifications, designs, drawings, plans, computer programs (including the Software) and other documents prepared by or on behalf of Seller (except for the assembly drawings supplied to Buyer) in connection with the Products and Services hereunder (the "Design Materials"), and all intellectual property rights in and to the Design Materials, are and shall remain Seller’s property. The Design Materials are for use solely with respect to the Products which are the subject of this Contract, and shall not, without Seller’s prior written consent, be used by Buyer, or its agents or contractors, on any other project, for completion of any of the Products or Services hereunder by others, or for any other services or work. The Design Materials are confidential and Buyer agrees to keep the Design Materials confidential upon receipt of the same directly or indirectly from Seller or from any of Seller’s contractors, subcontractors, vendors or consultants, and to return such Design Materials to Seller upon request. The obligation to keep the Design Materials confidential shall survive the expiration or termination of this Contract or completion and delivery of the Products and Services.

 

8. Compliance with Laws, Codes and Standards.

8.1 The contract price will be equitably adjusted to reflect additional costs incurred by Seller resulting from a change in industry specifications, codes, standards, or applicable laws and regulations.

8.2 All transactions hereunder shall at all times be subject to and conditioned upon compliance with all applicable trade control laws and regulations. Buyer agrees that it shall not transship, re-export, divert or direct products other than in and to the ultimate country of destination specified on buyer’s order or declared as the country of ultimate destination on seller’s invoice, except as permitted by applicable laws and regulations.

8.3 Buyer shall secure and pay for, any required authorization, such as an export license, import license, foreign exchange permit, work permit or any other governmental authorization. Buyer shall promptly reimburse Seller if Seller is required to or otherwise secures or pays for any such authorization, license or permit.

8.4 Buyer shall secure and pay for any and all permits, licenses and governmental fees, inspections and approvals necessary for the installation and use of the Products. Buyer shall promptly reimburse Seller in the event Seller is required to secure or pay for any such permit, license, fee, inspection or approval.

 

9. Warranty

9.1     Seller warrants to Buyer that (i) Products shall be free from defects in material, workmanship and title; and (ii) Services shall be performed in a competent, diligent manner in accordance with any mutually agreed specifications. Except as expressly authorized by Seller in writing, any items manufactured by entities other than Seller carry only the warranty provided by the manufacturers thereof and Seller gives no warranty on behalf of the manufacturers of such items.

9.2 Unless otherwise stated in Seller’s documentation, the duration of the warranty period for Products and Services shall be one (1) year from shipment of the Products and/or completion of the Services, except that the warranty period for Services lasting less than 10 consecutive days shall be 90 days from completion date. 

9.3 If Products or Services do not meet the above warranties during the applicable warranty period, Buyer shall promptly notify Seller in writing within such warranty period. Seller shall thereupon, at its option, (i) repair or replace the Products, (ii) re-perform the Services, or (iii) refund/credit monies paid by Buyer for that portion of Products or Services that do not meet the above warranties. Any repair, replacement or reperformance by Seller hereunder shall not extend the applicable warranty period.

9.4 Seller shall not be responsible for removal or replacement of systems, structures or other parts of Buyer’s facility. The costs of de‑installation, re‑installation and transportation of Products to Seller and back to Buyer shall be borne by Buyer and this warranty does not include any such costs.

9.5 The warranties and remedies set forth herein are conditioned upon the proper storage, installation, operation, and maintenance of Products and conformance with the operation instruction manuals (including revisions thereto) and specific operating parameters provided by Seller and/or its suppliers or subcontractors to Buyer.

9.6 Modification of any portion of Products or Services, including calibration services performed by parties other than Seller shall render all warranties null and void. All warranties and any obligations of Seller therewith shall automatically terminate with respect to any Products which are not operated in accordance with Seller’s recommendations or are otherwise misused; are altered or repaired in any manner not authorized by Seller; are damaged; are not maintained in accordance with recommended practices and instructions, or contain parts or components not supplied   by Seller or if the Products are not properly stored, installed, operated or maintained by Buyer as  provided in Section 9.5 hereof.

9.7 In no event shall Seller be liable for any loss or damage whatsoever arising from the use of Products or Services by Buyer against the advice of Seller.

9.8 This Section 9 sets forth the exclusive remedies for all claims based on failure of or defect in Products or Services, whether the failure or defect arises before or during the applicable warranty period and whether a claim, however instituted, is based on contract, indemnity, warranty, tort (including negligence), strict liability or otherwise. THE FOREGOING WARRANTIES ARE SELLER’S SOLE AND EXCLUSIVE WARRANTIES. SELLER MAKES NO OTHER WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS, IMPLIED, ORAL, WRITTEN OR OTHERWISE, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES ARISING BY CUSTOM, TRADE USAGE, PROMISE, EXAMPLE OR DESCRIPTION, ALL OF WHICH WARRANTIES ARE EXPRESSLY DISCLAIMED BY SELLER AND WAIVED BY BUYER.

 

10. Limitations of Liability and Indemnities.

10.1 Buyer acknowledges that the price is predicated on the enforceability of the following limitation of liability, that the price would be substantially higher if Seller could not limit its liability as herein provided and that Buyer accepts this limitation of liability in exchange for such lower price.

10.2 The total liability of Seller, on all claims of any kind, whether in contract, warranty, tort (including Seller’s negligence), strict liability, or otherwise, arising out of the performance or breach of the Contract or use of any Products or Services shall not exceed the price of the specific product or service which gives rise to the claim. All Seller’s liability under the Contract shall terminate upon the expiration of the applicable warranty period, provided that Buyer may enforce a claim of such liability accruing during the applicable warranty period by an action timely commenced in accordance with the applicable statute of limitations and/or statute of repose, but in no event greater than one (1) year after the expiration of such warranty period.

10.3 In no event, whether as a result of breach of contract, warranty, tort (including Seller’s negligence), strict liability, indemnity, or otherwise, shall Seller be liable for loss of profit or revenues, loss of use of Products or Services or any associated equipment, interruption of business, cost of capital, cost of substitute equipment, facilities, services or replacement power, downtime costs, or for any special, consequential, incidental, indirect or exemplary damages.

10.4  If Buyer cannot obtain for Seller from any subsequent purchaser(s) the protections specified in this Section 10, Buyer shall indemnify, defend and hold Seller harmless from and against any and all claims made by any subsequent purchasers of Products or Services against Seller for loss or damage arising out of the performance or non-performance of Products or Services provided under the Contract.

10.5 If Seller furnishes Buyer with advice or assistance that is not required under the Contract, the furnishing of such advice or assistance will not subject Seller to any liability, whether in contract, indemnity, warranty, tort (including negligence), strict liability or otherwise.

10.6 The provisions of this Section 10 shall prevail over any conflicting or inconsistent provisions contained in any of the documents comprising the Contract, except to the extent that such provisions further restrict Seller's liability.

10.7 All limitations in this Contract on Seller’s liability shall apply notwithstanding the fact that Seller’s warranties fail of their essential purpose or are held to be invalid or unenforceable.

 

11. Dispute Resolution, Governing Law.

11.1 The validity, performance and all matters relating to the interpretation and effect of the Contract shall be construed and interpreted in accordance with the laws of the Province of Alberta, excluding its law on the conflict or choice of laws. The application of the United Nations Convention on Contracts for the International Sale of Goods shall be excluded.

11.2 Any claim brought by a party against the other party for claims arising out of or related to the Contract shall be initiated and conducted in the Province of Alberta, and the parties attorn to the exclusive jurisdiction of the Courts of the Province of Alberta in respect of all such claims. Each party irrevocably consents to the service of process in connection with any such action or proceeding by personal delivery to the party.

 

12. Health and Safety Matters.

12.1 Buyer shall take all necessary precautions, at all times, for the safety of Seller personnel at the Site. If, in Seller’s opinion, the safe execution of the Contract at the Site is, or is apt to be, imperiled by local conditions, Seller may remove some or all of its personnel from the Site and/or supervise performance of all or part of the Contract at a location determined by Seller; any such removal by reason of health or safety matters shall be considered to be an excusable delay as set forth in Section 6.

12.2 Buyer shall advise Seller in writing of all applicable and relevant Site-specific rules, regulations, safety codes, and laws forthwith after execution of this Contract.

 

13. Termination and Suspension.

13.1 Buyer shall have the right to terminate the Contract (or any portion thereof) if Seller becomes insolvent, makes an assignment for the benefit of its creditors, has a receiver or trustee appointed for the benefit of its creditors, or files for protection from creditors under any bankruptcy or insolvency laws. If Buyer terminates the Contract as provided in this Section 13.1, Buyer shall pay to Seller (i) that portion of the Contract price allocable to Products completed or partially completed prior to the termination and (ii) all hours for Services performed at Seller’s then-current standard time and material rates.

13.2 Seller shall have the right to terminate the Contract (or any portion thereof) immediately if Buyer becomes insolvent, makes an assignment for the benefit of its creditors, has a receiver or trustee appointed for the benefit of its creditors, or files for protection from creditors under any bankruptcy or insolvency laws.

13.3 Any termination, other than as provided in Section 13.1 shall be considered a breach of the Contract by Buyer. If the Contract (or any portion thereof) is terminated for any reason other than those set forth in Section 13.1 above, Seller shall be paid for all Products completed or partially completed and Services performed prior to the date of termination, plus a cancellation charge equal to 15% of the Contract price allocable to the uncompleted Products and unperformed Services. The following shall apply when determining the amount due from Buyer for Services performed prior to the date of termination: (i) for Services performed under time and material pricing, Buyer shall pay for all hours performed at Seller’s then-current standard time and material rates and (ii) for Services performed under a firm fixed price, Buyer shall pay (a) the applicable price for all milestones achieved and (b) for any milestone not yet achieved, all hours performed in connection with the unachieved milestone(s) at Seller’s then-current standard time and material rates.

13.4 Seller shall have the right to suspend any work immediately upon the failure of Buyer to make any payment when due. Any expenses incurred by Seller in accordance with a suspension under this Section 13.4 (including storage costs) shall be payable by Buyer upon submission of Seller’s invoice(s). Performance of Seller’s obligations shall be extended for a period of time reasonably necessary to overcome the effects of such suspension.

 

14. Software / Intellectual Property.

14.1 Unless subject to a separate license or agreement, any software furnished hereunder whether separate or incorporated with supplied hardware, including any subsequent updates, is furnished under the following terms and conditions:

(a)      The software, and any part thereof, is designed for use only on the type unit on which the software is first installed.

(b)     No exclusivity of use of the software is transferred to Buyer.

(c)      Software and documentation copyrighted by Seller shall not be copied in whole or in part, but additional copies of software and documentation in printed form may be obtained from Seller or its representatives at Seller's then-standard charges, subject to applicable import and export laws and regulations. Buyer agrees that any copyright, proprietary, trade secret or similar notices appearing on and in software will be reproduced and included on and in any modifications and copies, in whole or in part, of software.

(d)     The source code for software is not included unless specifically listed as an item in Seller’s specification.

(e)      On occasion, third party licensed software is provided. It will be identified as such and Buyer will be required to complete any sublicense specified by the software licensor and provided by Seller.

(f)      If a separate software license agreement is required by Seller, Buyer shall execute the software license agreement on or before installation, and the provisions of the separate software license agreement shall supersede the foregoing subparagraphs to the extent they are inconsistent with such license.

14.2 Buyer agrees that no intellectual property rights of any kind owned by Seller or its suppliers are transferred to Buyer under the Contract.

 

15. Seller’s Remedies.

Seller shall have all rights and remedies specified herein in addition to those specified in the Sale of Goods Act, (Alberta), as amended, replaced and superseded from time to time. All such rights and remedies are cumulative. No delay or failure by Seller to exercise any right or remedy shall impair in any manner whatsoever any of such rights or remedies or be construed to be a waiver of any breach or acquiescence therein, and any single or partial exercise of any such right or remedy shall not preclude other or further exercise thereof or the exercise of any other right or remedy. Buyer shall pay all costs and expenses paid or incurred by Seller in enforcing its rights hereunder including, without limitation, legal fees on a solicitor and his own client basis and court costs. In addition to the foregoing, Seller may seek injunctive relief if Buyer has breached any of its confidentiality obligations hereunder.

 

16. General Clauses

16.1 The delegation or assignment by Buyer of any or all of its duties or rights under the Contract without Seller’s prior written consent shall be void.

16.2 If any provision of the Contract is found to be void or unenforceable the remainder of the Contract shall not be affected and the parties agree that they will replace any such void or unenforceable provision with a new provision that achieves substantially the same practical or economic effect and which is valid and enforceable.

16.3 The following Sections shall survive termination of the Contract: Sections 3, 4, 5, 7, 8, 9, 10, 11, 13, 14 and 16, and all attachments and exhibits appended hereto.

16.4 These Terms and Conditions, together with the description of Products, Buyer’s name and address, any price or payment terms and any other information or terms and conditions specifically stated herein will constitute the entire agreement between Seller and Buyer with reference to the subject matter hereof. Any purchase order issued by Buyer shall be deemed to: (i) be for the record keeping convenience of Buyer; and (ii) confirm these Terms and Conditions and not add to, derogate from, or change these Terms and Conditions.

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