TERMS AND CONDITIONS
Acceptance by Vendor of this order, in whatever form, will be according to these terms and conditions only. None of these terms or conditions may be modified unless by instrument in writing signed by both parties. Without limitation, any term or condition of any of Vendor’s own form of acknowledgment, confirmation of sale or invoice which modifies, conflicts with or adds to any term or condition hereof is hereby deemed to be waived by Vendor unless expressly accepted in writing by 12608413 dba GBES / CG Energy Services / Charge Guys (“GBES / CG).
REPRESENTATIONS AND WARRANTIES
It is a condition of this agreement, and Vendor represents and warrants, that all goods and services (as applicable) to be furnished hereunder will be: (a) free from defects in material and workmanship; (b) of merchantable quality; (c) fit for purpose; (d) of a grade and performance strictly conforming with all specifications, designs, drawings, approved samples, models, descriptions, instructions and other items referred to in this order; (e) processed, manufactured, packaged, labelled, advertised, stored, transported, installed, repaired, maintained and otherwise performed, as the case may be, in compliance with all applicable laws, regulations and orders; and (f) free of infringement of any property rights of third persons, including without limitation any patent, trade-mark, copyright, industrial design, integrated circuit topography right, right of privacy or trade secret. Vendor’s warranties and guarantees will survive acceptance and payment and will apply to and be for the benefit of GBES / CG, its successors, assigns and customers.
PRICES
Price increases will not be binding unless approved by GBES / CG in advance, in writing. All unit and total prices in this order and in all of Vendor’s invoices will be in Canadian currency, unless otherwise specifically agreed to by GBES / CG in writing.
DELIVERY
Time is of the essence of this order and if delivery of goods or rendering of service is not completed by the time promised, GBES / CG will have the right to cancel this order effective on GBES / CG’s written notice thereof. Vendor will notify GBES / CG promptly whenever it appears to Vendor that it will not be able to make deliveries on any date(s) specified. GBES / CG’s acceptance of deliveries on dates other than as specified will not constitute a waiver of GBES / CG’s rights to damages. Delivery will not be deemed to be complete until the goods have been received and accepted by GBES / CG.
CHANGES
GBES / CG may from time to time, without notice to any sureties or assignees, change packing, testing, destination, specifications and designs and may delay delivery schedules. Vendor will immediately notify GBES / CG of any increases or decreases in costs caused by such changes and an equitable adjustment in prices or other terms hereof will be agreed upon in a written amendment to this purchase order.
INSPECTION
All goods purchased hereunder are subject to inspection and approval at GBES / CG’s destination prior to, during and for a reasonable period of time after delivery, notwithstanding any prior payment. GBES / CG reserves the right to have its quality assurance personnel audit products listed on this order prior to shipment. In the event that goods purchased hereunder in whole or in part fail to comply with any conditions, representations or warranties herein (“Defective Goods”), GBES / CG will have the option, at its sole discretion, to: (a) reject all goods and recover from Vendor all amounts paid therefor or in connection therewith; (b) reject the Defective Goods only and recover from Vendor all amounts paid therefor or in connection therewith;(c) reject the Defective Goods and require Vendor to correct, repair or replace the Defective Goods at Vendor’s cost and expense; or (d)correct and repair the Defective Goods and charge the cost and expense to Vendor. The right of rejection is exercisable notwithstanding any inspection or any dealing with the goods by GBES / CG or its customers. Upon GBES / CG’s notifying Vendor of its intention to reject the goods or Defective Goods, risk of loss for all goods rejected will pass to Vendor. Without limiting GBES / CG’s rights and remedies, Vendor will bear the cost to GBES / CG of unpacking, inspecting, examining, repacking, storing and reshipping rejected goods. Rejected goods will not be replaced without GBES / CG’s consent. Vendor will be responsible for freight and transportation charges, duties and taxes, and GBES / CG’s processing and handling costs for replacement shipments.
PROPERTY PROVIDED BY GBES / CG TO VENDOR
Unless otherwise agreed in writing, all raw materials, components, work in progress, designs, patterns or molds and any other property provided at any time by GBES / CG to Vendor, or specifically paid for by GBES / CG, for use in the performance of this order, will be and remain the property of GBES / CG, will be subject to removal upon GBES / CG’s instruction, will be used only in filling orders from GBES / CG and will be held at Vendor’s risk. Vendor agrees that the features of any components, work in progress, designs, patterns or molds or any other technical or proprietary information furnished by GBES / CG are confidential and proprietary to GBES / CG. Such information will only be provided by Vendor to those of its employees, agents and representatives with a “need to know”. Vendor will not disclose, and will ensure that none of its agents, employees or representatives disclose, any such information to any third person. Vendor will use such items only for the purposes of this order or other orders and not otherwise without GBES / CG’s prior written consent. On completion or termination of this order or sooner if so requested by GBES / CG, Vendor will return all such items to GBES / CG or dispose of such items as may be directed or approved by GBES / CG. In the event that GBES / CG supplies any materials to Vendor for use by Vendor in the fulfillment of Vendor’s obligations hereunder, and the goods produced by Vendor are defective, Vendor will reimburse GBES / CG for the total cost of all such materials supplied by GBES / CG to Vendor.
FREIGHT AND TAXES
Unless otherwise specifically provided for in this order, Vendor will pay all freight and other transportation charges and insurance covering the goods until they are delivered to the destination indicated herein, and all federal, state, provincial and local sales, use, excise, value-added and other taxes and duties which may imposed on the goods ordered hereunder or by reason of their sale or delivery. Any freight, transportation or insurance costs, taxes or duties for which GBES / CG has agreed in writing to reimburse Vendor will be separately listed on Vendor’s invoice.
RISK OF LOSS
Unless otherwise specified in this order, and notwithstanding any agreement to pay freight or other transportation charges, risk of loss of or damages and title to the goods will not pass to GBES / CG until the goods have been received and accepted by GBES / CG or its customers at the destination specified in this order.
SET-OFFS
GBES / CG will be entitled at all times to set off any amount owing at any time from Vendor to GBES / CG against any amount payable at any time by GBES / CG to Vendor in connection with this order. Disputes between GBES / CG and Vendor in connection with GBES / CG’s claims for set-off will not excuse Vendor from further deliveries in accordance with the dates and other terms and conditions specified herein.
CANCELLATION
GBES / CG will have the option at any time, for any reason whatsoever, to cancel this order in whole or in part stating the extent and effective date of such cancellation by notice to Vendor in writing and for reasons including if: (a)Vendor defaults in performance hereunder in a material respect; (b) in GBES / CG’s opinion there has been a failure of Vendor to make sufficient progress in the work so as to endanger substantially Vendor’s performance hereunder; (c) Vendor ceases to conduct its operations in the normal course of business; or (d) Vendor becomes insolvent or makes an assignment for the benefit of creditors, or if proceedings are taken by or against Vendor under any bankruptcy, insolvency or reorganization laws, or if a trustee, receiver or administrator is appointed with respect to Vendor or its business or property. GBES / CG will return at Vendor’s cost any goods previously delivered pursuant to this order in whole or in part so canceled without having any further liability to Vendor Upon receipt of such notice, Vendor will to the extent directed by GBES / CG terminate work under this agreement and any Subcontracts outstanding hereunder and take any necessary action to protect property in Vendor’s possession in which GBES / CG has or may acquire an interest. The only liability of GBES / CG for the cancellation of this order in whole or in part is reimbursement to Vendor for all direct costs incurred by Vendor for this order as of the time of receipt of the cancellation notice, less the greater of either amounts received by Vendor on resale of such work in process or the reasonable value of such work in process. Such payment by GBES / CG will be in full satisfaction of all claims which Vendor may have against GBES / CG under this order or for the cancellation.
ASSIGNMENT AND SUBCONTRACTING
Vendor will not: (i) sell, transfer or assign to any third party, or otherwise dispose of, any raw materials, components, work in progress or finished goods obtained, used or produced hereunder; or (ii) assign any of its rights or delegate or sub-contract any of its duties hereunder, without GBES / CG’s prior written authorization. Any transaction, which would result in the vesting of the rights and duties of Vendor hereunder in any third party, whether or not by the operation of law, will be deemed to be an assignment subject to GBES / CG’s authorization as aforesaid. Any unauthorized assignment or delegation in contravention of this provision will be void and GBES / CG will have all rights and remedies herein and under applicable law.
INDEMNITY
Vendor will defend, protect, indemnify and hold harmless GBES / CG, its affiliates, successors, assigns and customers from all liability, loss, damage, cost or expense, including legal fees, paid or incurred by reason of the breach or the claim of breach of any of the conditions, representations or warranties of this purchase order, including without limitation all claims relating to product liability or injury or damage to people or property. GBES / CG will be entitled to collect incidental and consequential damages including but not limited to damages for GBES / CG’s loss of goodwill, profits and business opportunities. GBES / CG’s rights and remedies set forth in this order are cumulative and in addition to all other rights and remedies under applicable law.
NOTICES
All notices, consents, approvals, statements, authorizations, documents, or other communications (collectively “notices”) required or permitted to be given hereunder will be in writing, and will be delivered personally, sent by fax, or mailed by registered mail, postage prepaid, at the addresses provided by GBES / CG and the vendor respectively on the face of the purchase order herein, or at any such other address or addresses as may be given by any of them to the other in writing in accordance with this subsection from time to time. If sent by registered mail, such notice will be deemed to have been given on the fifth business day following such mailing. If delivered personally or sent by fax during regular business hours, such notice will be deemed to have been given on the day of delivery or transmission, if during regular business hours on a business day, or if not, on the business day next following the day of delivery or transmission.
ENTIRE AGREEMENT / NO WAIVER
The terms and conditions of this order constitute the entire agreement and understanding between the parties pertaining to the subject matter hereof. No amendment of or addition to any of the terms and conditions hereof will be binding on either party unless in writing signed by both parties. No waiver by GBES / CG of any term or condition of this order or any remedy it may have pursuant hereto will affect any of GBES / CG’s rights to enforce or to exercise any right or remedy in the event of any other breach of any other or the same term or condition.
GOVERNING LAW
This Agreement will be governed by the laws of the Province of Ontario and those of Canada applicable therein.
