DEFINITIONS
a. “Agreement” means the Purchaser’s agreement to purchase the Product(s) and Services(s) from the Seller;
b. “Purchaser” means the company, partnership, person or entity purchasing the Product(s) and Services(s) from the Seller identified in the Purchase Documents;
c. “Product(s)” means the equipment parts and materials (the Goods) being purchased by the Purchaser identified in the Purchase Documents;
d. “Service(s)” means employment in any duties or work for the Purchaser;
e. “Purchase Documents” means the documents accompanying these Terms and Conditions which more fully describe the Products being purchased from the Seller, including, as applicable, the Purchaser ‘s request for quotation, purchase orders, and the Seller’s quotation;
f. “Company” and “Seller” means Utherm and any affiliate or related company identified in the Purchase Documents;
g. “Carrier” means any person who, in a contract of carriage, undertakes to perform, or procure the performance of transport;
h. “FCA” means that the Seller delivers when he places the Product(s) at the disposal of the Purchaser at the Seller’s premises. In this case it will be ex Works Squamish, BC workshop and Utherm will load the Product(s) on the Carrier contracted by the Purchaser and will provide documentation to allow the Purchaser’s Carrier or Agent to clear through Customs at the Border.
GENERAL
The possession of the Utherm (the “Company”) catalogue and/or literature is not to be construed as an offer to sell the Goods listed therein. All orders shall be subject to the approval and acceptance of the Company. Purchaser must express in writing to the Company any objection Purchaser has to the terms and conditions contained herein within five (5) days of receipt of this document, otherwise assent to the terms and conditions herein shall be conclusively presumed. All Company quotations or proposals, all acceptances of Purchaser’s orders, and all sales by the Company are expressly limited to, and expressly made conditional upon, the Purchaser’s acceptance and assent to the Standard Terms and Conditions of Sale as set forth herein, notwithstanding receipt of, or acknowledgement of, the Purchaser’s order form or specifications containing additional or different provisions or, conflicting oral representations by any agent or employee of the Company. No waiver, change or modification of any terms or conditions on the face or reverse hereof shall be binding on the Company unless made in writing and signed by an authorized representative of the Company. Unless expressly stated otherwise, all Company quotations, prices and terms are expressed in Canadian Dollars
PRICES AND TERMS
Unless otherwise specified by the Seller, the Seller’s price for the sale of the Product(s) will remain in effect for thirty (30) days from the date of the Seller’s quotation. The Seller’s prices do not include applicable tax which will be added to the prices quoted and appear as a separate line item on the Seller’s invoice. The Seller’s prices also do not include third party testing or inspection and associated documentation unless quoted as an additional extra charge
All prices are subject to change without notice. Terms are 30 days net from the date of issuance of invoice, subject to approved credit. Shipments can be expedited, prior to establishing credit, by including a cheque or direct deposit with the order for the full amount or including a cheque or direct deposit for 33% of the estimated price or contract value and specifying C.O.D.
Any order valued at $20,000 or more for non‐standard material shall be subject to progress payment terms.
Any order originating outside Canada or the contiguous United States, Alaska, Hawaii shall be subject to an Irrevocable Letter of Credit confirmed by a Canadian Bank or by a sight draft.
If delivery of products or services in accordance with a duly executed contract is delayed beyond 90 (ninety) days, and such delay is due to no fault of Seller, then Seller shall have the right to submit a change order for any escalation in the price of materials or subcontractor services that have increased 2% or more above the original price as per the contract.
If shipment of an order is delayed more than 15 (fifteen) days after the agreed delivery date per the incoterms of the contract (or any applicable change orders), or after Buyer has formally accepted the goods and been duly notified of readiness for shipment, Seller shall have the right to invoice Buyer for any storage of the equipment and other related costs including insurance, security and handling. Buyer shall be responsible for arranging their own insurance on any goods to which they have title and which are stored on Seller’s property, other than goods that are free issued or otherwise provided to the Seller as project materials during the execution of the contract.
Finance charges at a rate of 2% per month (annual percentage of 26.824%) will be charged on all invoices which remain unpaid after expiry of the agreed payment term per the contract. Interest on unpaid invoices shall be calculated from the date of issue of the invoice.
PERFORMANCE WARRANTY
The Company warrants to the original Purchaser that the equipment provided by the Company will perform at rated capacity as stated only when:
1. Properly installed, connected, started, operated and maintained in accordance with Company instruction(s), and/or Information Guide(s), as revised from time to time, and;
2. Parts and/or accessories or components replaced or changed are approved in writing by the Company, and
3. Repairs, alterations, modifications or changes are approved in writing by the Company, and;
4. Used for the applications specified and;
5. Used in the environments as specified or as limited. If equipment is part of a greater system, the Company accepts responsibility only for the equipment manufactured by it and only when Purchaser complies with the restrictions herein.
The Company shall not be responsible or liable for any claims and/or losses, direct, indirect, incidental, consequential, punitive or otherwise arising out of the election of its products to fulfil the requirements of any plans and specifications.
CAUTION
DUE TO THE NATURE OF FUEL‐FIRED EQUIPMENT, ITS CONTROLS AND ACCESSORIES, AN EXPLOSION AND FIRE HAZARD WILL ALWAYS EXIST. TO MINIMIZE SUCH HAZARDS, THIS EQUIPMENT MUST BE INSTALLED, OPERATED AND MAINTAINED IN ACCORDANCE WITH THE APPROPRIATE INSTRUCTION(S) AND/OR INSTALLATION GUIDE(S), AS REVISED BY THE COMPANY FROM TIME TO TIME.
LIMITED WARRANTY ON THE EQUIPMENT ITSELF
The Company, for a period of eighteen (18) months from shipment or twelve (12) months from start‐up, whichever occurs first, warrants each product or system of its own manufacture, with the exception of burner blocks and any other refractory materials and flame rods, spark plugs, thermocouples and any consumable materials (which the Company does not warrant), to the original purchaser to be free from defects in material and workmanship under normal use, service and maintenance. Normal use, service and maintenance means:
1. The equipment is not operated in excess of the maximum pressures, temperatures, volumes and rated capacities or other parameters specified in the Company’s Product Bulletins, Specification Sheets, and/or quotation(s).
2. Only fuels specified in the Company’s Product Bulletins, Specification Sheets, and/or quotations are used.
3. Operation and maintenance are conducted in compliance with the appropriate Instructions and/or Information Guides.
4. Products or Goods not of the Company’s manufacture supplied as a singular item, or as components within a system designed or sold by the Company, are not covered by this warranty and shall be covered by the warranty provided by the original manufacturer such as it exists.
This warranty does not apply to damage caused by any or all of the following circumstances or conditions:
1. Failures not reported in writing to the Company within the specified warranty period ;
2. Freight damage not covered by the Incoterms of the contract. Purchaser’s remedy for such damage shall be from the carrier;
3. Parts and/or accessories or components replaced or repairs, alterations, modifications or changes made by Purchaser or authorized by Purchaser without written consent of the Company;
4. Any consequential, direct, indirect, incidental or other damage arising from the use of the product, system or other Goods manufactured or sold by the Company;
5. Misapplication, misuse, abuse and failure to follow the Product Instruction Sheets and/or information Guides.
The sole and exclusive remedy, under this warranty, for any claim of damage in connection with the sale or furnishing of materials by Company, shall be limited to the repair or replacement, without charge for labour to repair or materials to replace, of any parts found upon examination by the Company to have been defective.
The warranty shall not include field erection costs, if any, including labour cost to remove, replace or reinstall parts or materials, travel and living expenses. The Company shall not be deemed to have failed in its essential purpose so long as Company is willing to repair or replace any defective parts or materials. The Company reserves the right to replace returned material with equivalent devices. Generally, consent for the return of items to Company, if given, will be upon the condition that the purchaser assumes and prepays all carrier charges.
This warranty is exclusive. The Company expressly disclaims any and all other warranties and conditions, whether expressed or implied, including any implied condition or warranty of merchantability or fitness for a particular purpose.
No person, including any dealer or representative of the Company, is authorized to make any representations concerning the Company’s products or systems on behalf of the Company or to assume for the Company any obligations beyond those contained in this warranty. The Company reserves the right to make design and other changes, modifications or improvements upon its products or systems, without any obligation to install same on any previously sold or delivered products or systems.
LIMITATION OF LIABILITY
It is expressly agreed that the Company’s liability is limited as stated herein. If the Company should be found liable to anyone (except any warranty where the remedy is set forth in this document) for loss, harm, or damage, the liability of the Company shall be limited to the lesser of the actual and direct loss, harm or damage, or the original purchase price of the involved equipment, system or service when sold (or when service performed) by the Company to its Purchaser. This liability is exclusive and regardless of cause or origin resulting directly or indirectly to person or property from:
1. The performance or non‐performance of any obligation set forth in this warranty;
2. Any agreement, oral or written, including specifications, between the Company and the Purchaser;
3. Gross negligence of the Company or any of its agents, employees, or independent contractors;
4. Breach of any judicially or legally imposed warranty or covenant and;
5. Misrepresentation or strict liability involvement.
The Seller shall not be liable for any kind of consequential damages including loss of anticipated profits, loss of use of equipment or any associated equipment, the loss of product from the Purchaser’s facility(s) or the loss of capital however caused. The Purchaser agrees that the Seller’s sole and exclusive liability for any and all losses and damages arising out of, or connected in any way with, the Product(s) provided by the Seller shall be limited to the repair, correction or replacement of the Product(s) in accordance with the terms of the limited warranty set out herein.
Purchaser shall indemnify and hold the Company harmless against any and all debts, obligations, costs and damages, including solicitor fees on a solicitor and his own client basis and other legal costs, arising from any claims or causes of action, whether in law or equity, or arising in contract, tort or otherwise, which may be asserted against the Company by any person or entity or government authority not a party to this Agreement, resulting from the subsequent sale by Purchaser or the installation/reinstallation by Purchaser, use, repair, maintenance or decision to purchase the Goods and materials described herein, provided, however that this indemnity and hold harmless provision shall not apply to the Company’s own acts of wilful misconduct in the initial production thereof. It shall be the responsibility of the Purchaser to ensure that the Purchaser complies with applicable laws in the jurisdiction(s) in which it subsequently sells, installs/reinstalls, uses, repairs, maintains and purchases the Goods and materials described herein. The provisions of this indemnity and hold harmless provision shall apply to any non‐compliance by the Purchaser of any such applicable laws.
PATENTS
Subject to the limitations of liability set out herein, the Seller shall defend any suits brought against the Purchaser based upon a claim that the use of the Product(s) manufactured by the Seller constitutes an infringement on a valid patent of Canada or the United States and the Seller shall pay any damages awarded therein as against the Purchaser, provided that the Purchaser promptly notifies the Seller in writing of such a suit or threat thereof; permits the Seller to control completely the defense or compromise of such a claim; and provides all reasonable assistance and co‐operation requested by the Seller for the defense of such a claim. In the event that the Product(s) manufactured by the Seller is held to be infringing a patent in any such suit and its use is enjoined, the Seller shall, at the Seller’s option and expense, procure for the Purchaser the right to continue using the Product(s), replace it with non‐infringing Product(s) or modify it so it becomes non‐infringing. The Purchaser agrees that the Seller shall not be liable for any action for an infringement, and that the Purchaser shall fully indemnify the Seller in respect thereof, if the infringement action is based upon the use of the Product(s) in connection with other products or equipment not manufactured by the Seller, the use of the Product(s) in any manner for which the Product(s) was not designed by the Seller, or if the Product(s) was designed by the Purchaser or modified by or for the Purchaser in a manner to cause it to infringe any patent.
DELIVERY
The quoted time of delivery is understood to be from date of receipt of a contract properly signed by the Purchaser and containing all necessary information to execute the contract. Purchaser accepts delivery by instalments. Any delay in delivery of any instalment shall not relieve purchaser of its obligation to accept remaining deliveries. The Company shall not be liable for damages or for cancellation of the contract as a result of any delay due to any cause beyond the Company’s reasonable control including, but not limited to, acts of God, acts of the purchaser, embargo, or other governmental acts, regulations, or requirements, fire, accident, labour disputes, war, civil insurrection or riot, delay in transportation, or the inability to obtain necessary labour, materials, or manufacturing facilities. In the event of any such delay, the date of delivery may be extended for a period equal to the time lost by reason of the delay. Inspection of products, if requested, shall occur at the Company’s place of business as stated in the contract and shall be conducted by Purchaser or its authorized representative. It is agreed that the Purchaser shall notify the Company of any shortage within fifteen (15) days of receipt of the Goods.
All shipments, unless otherwise specified, shall be FCA Company facility and the Purchaser assumes responsibility for damage or loss in transit. In the event of loss or damage incurred in transit, claims for parts broken or lost in shipment are to be filed with the Carrier by the Purchaser. Purchaser bears the risk of loss during transit. In case of partial or total loss, the Purchaser promises that any settlement arising therefrom with the Purchaser’s Insurer or the Carrier or its insurance shall be payable to the Purchaser and the Company, jointly, according to their respective interest.
Title to the Product(s) shall pass to the Purchaser on the Purchaser making payment in full for the Product(s). Payment is considered effective once the funds have been cleared by the Purchaser’s bank.
INSURANCE
The Purchaser shall provide, at its expense, property damage insurance or “all risk” insurance covering the full cost of the Seller’s Product(s) while the Product(s) that has been delivered by the Seller in accordance with the terms of this Agreement but the Product(s) are still in transit or are stored at a location and have not yet been paid for by the Purchaser. This insurance will name the Seller of the Product(s) as an additional insured with a waiver of subrogation against all insured parties thereunder.
PACKAGING
All prices are based on domestic packaging. For export packaging, contact the Company for pricing.
CANCELLATION OF ORDERS
If, for any reason, the Purchaser desires to cancel an order, such cancellation shall only be with the written consent of the Company, and then only after payment is made to the Company for all costs incurred which shall include, but not be limited to, material purchased in anticipation of the fulfilment of the order, labour, overhead, material cancellation/restocking charge and reasonable profit.
RETURNS AND RESTOCKING CHARGES
Equipment may be returned only upon prior written authorization of the Company. Generally, consent, if given, will be upon the condition the Purchaser assumes all carrier charges, responsibility for damages in transit, and a restocking charge, and then only if the so‐authorized material is in new and unused condition and returned within one year from the original date of shipment. The credit will be based on the original invoice price less the applicable restocking charge.
INSTALLATION AND SERVICE
Unless otherwise noted herein, the cost of the equipment does not include installation, start‐up or other services. All services performed by the Company are subject to Purchaser’s payment of the Company’s prevailing charges including necessary travel and living expenses.
TAXES
Any tax or taxes that may be imposed upon the Goods and/or services that are the subject of this sale or upon the sale or delivery shall be added to and become a part of the contract price.
GOVERNING LAW
This contract is governed by the laws of the Province of British Columbia. The parties irrevocably attorn to the jurisdiction of the Courts of such Province.
PROVISIONS
a. Purchaser shall not assign its rights or obligations under this Agreement without Seller’s prior written consent;
b. No action, regardless of form, arising out of transactions under this Agreement, may be brought by either party more than two (2) years after the cause of action arose.
ENGLISH LANGUAGE
The parties have requested that this “Standard Terms and Conditions of Sale” be drawn up in English. Les parties ont exigé que le présent contrat “Modalités de Vente” soit rédigé en anglais.