Terms and Conditions
1. General. As used herein, My Engineering Ltd, having its principal place of business at 9740 47 Ave NW, Edmonton AB, Canada is referred to as the “Seller” and the entity purchasing Goods from the Seller is referred to as the “Purchaser”. The present Standard Terms and Conditions of Sale (these “Terms”) are applicable to and form the sole and integral part of every contract, quotation, purchase order, order form, proposal, invoice or signed acceptance of these Terms (the “Contract”) between the Seller and the Purchaser (referred to individually as “Party” or collectively as the “Parties”) for the sale of parts, equipment, accessories, goods or services (“Goods”). Seller’s sale of any Goods is expressly conditioned on Buyer’s assent to these Terms. Any acceptance of Seller’s offer is expressly limited to acceptance of these Terms. Notwithstanding any contrary provision in the Purchaser’s purchase order or other document, commencement of performance by Seller shall not constitute acceptance of the Purchaser’s terms and conditions to the extent any such terms or conditions are inconsistent with or in addition to these Terms. Any and all terms, conditions, and other provisions from the Purchaser (whether or not contained in a request for quotation, purchase order, or otherwise) which are inconsistent with or in addition to these Terms are rejected and shall not be binding on Seller. No waiver, alteration, amendment, or other modification of these Terms shall be binding on Seller unless made in a writing (identifying the applicable quotation number and clearly identifying and agreeing to the modification) signed by an authorized manager at Seller. The Purchaser’s issuance of a purchase order and/or the Purchaser’s acceptance of any work performed by Seller shall constitute acceptance of these Terms. In the event a separate written agreement covering terms and conditions has been negotiated and mutually signed by authorized representatives of Purchaser and Seller, and such agreement is applicable and in effect, it shall take precedence (to the extent of conflicts) and the terms and conditions set forth in these Terms will be supplemental to those of such agreement.
2. Quotation Validity. Unless otherwise expressly stated in the quotation, the quotation is valid for a period of 30 days after it is issued by My Engineering. Beyond that, quotations will require confirmation or adjustment by My Engineering Ltd.
3. Price Escalation. During execution of the work, labour wages and material prices may increase as a result of inflation. The Seller may request a price adjustment in a written change order. If the Parties do not reach agreement in writing within 30 days of the change order being issued, the Contract may be terminated as per Section 9 Cancellation.
4. Safety. During the performance of its obligations under this Contract, Seller shall be responsible for meeting all applicable safety laws, rules, regulations, codes, and orders. Without limiting the generality of the foregoing, Seller shall initiate and maintain all reasonable precautions for the safety of, and shall provide all reasonable protection and supervision designed to prevent injury to, persons (including members of the public and the employees, agents, subcontractors, consultants and representatives of Buyer, Seller and its subcontractors) while performing its obligations under this Contract at the site, and the Seller shall familiarize itself with and shall comply with the Buyer’s safety policies at all times during the progress of the work. Seller agrees to comply with all health and safety instructions and rules established by the Purchaser or its designee from time to time, and Seller shall promptly remove from the site any person under the control of Seller who violates any of the aforesaid safety, health, or site regulations, policies or directives or upon reasonable request of the Buyer or Buyer’s representative (including, without limitation, the site safety officer). Seller shall pay (or cause to be paid) when due all premiums and other amounts to be paid by it and its subcontractors under applicable workplace safety and insurance regimes and provide evidence to Buyer.
5. Credit. A Purchaser credit account cannot be opened by the Seller until receipt, by the Seller’s Finance Department (the “Finance Department”), of a signed Credit Application. The Purchaser agrees that on-going credit approval to the satisfaction of the Seller shall be a continuous pre-condition of sale of any Goods. The Purchaser will provide to the Seller, upon request, all relevant and current information allowing Seller to evaluate the financial situation or any relevant matter regarding the Purchaser’s business background and debt, including but not limited to, its annual or interim financial statements, credit reports and legal suits. The Seller may, at its sole discretion, in the event of insufficient credit worthiness, freeze the Purchaser’s account, stop all shipments and sale of Goods to the Purchaser, or even terminate the Contract.
6. Title and Risk. Unless otherwise defined by the shipping terms in the quotation it is agreed by the Purchaser and Seller that title to and ownership of the Goods shall remain in the Seller until the Goods are paid for in full by the Purchaser. The Purchaser assumes full risk of loss, damage to or destruction of the Goods, from and after the time, at which the Goods leave the Seller’s warehouse or shipping location(s) until the Goods are paid in full.
7. Price. Taxes, Duties & Levies. The price does not include taxes. Any and all applicable taxes and governmental charges will be added to any price payable by the Purchaser and shall be paid by the Purchaser. Unless stipulated otherwise by Seller, all prices are in Canadian Dollars.
8. Purchaser’s Acceptance of the Goods. The Purchaser shall inspect the Goods upon receipt and such Goods will be deemed to be in compliance with the Contract and accepted by the Purchaser, unless a written notice indicating otherwise is received by the Seller within fourteen (14) days after the Purchaser’s receipt of the Goods.
9. Cancellation. The Purchaser shall have no right to cancel the Contract (or a part of the Contract), unless the Seller, at its sole discretion, agrees in writing to such cancellation. The Seller’s determination of its acceptance of any such cancellations shall be pre-conditioned on the Purchaser sending a written notice to the Seller, requesting the cancellation and detailing with specific accuracy the reasons for any said request of cancellation. Upon Seller’s acceptance of the notice of cancellation, Purchaser shall pay Seller’s cancellation charges in accordance with the Cancellation Schedule below, unless a different schedule is specified in the purchase order.
10. Cancellation Schedule. The following cancellation charges will apply based on the time elapsed from the date of the Contract to the date of the accepted cancellation notice, and shall be the greater of the percentage of the contract value or the total costs and expenses incurred by the Seller at the time of cancellation:
· Within 7 days from Contract date: 10% of the total contract value or the total costs and expenses incurred, whichever is greater.
· Between 8 to 14 days from Contract date: 20% of the total contract value or the total costs and expenses incurred, whichever is greater.
· Between 15 to 30 days from Contract date: 30% of the total contract value or the total costs and expenses incurred, whichever is greater.
· More than 30 days from Contract date: 50% of the total contract value or the total costs and expenses incurred, whichever is greater.
· These charges cover the costs incurred by the Seller for preparation, administrative expenses, and any work already performed.
11. Returns. The Goods may not be returned to the Seller, unless approved by the Seller in writing. If Seller agrees that Purchaser may return the Goods, Seller will issue a “Return Material Authorization” number to Purchaser, and Purchaser must include such Return Material Authorization number with the return. Seller has a right to accept or refuse any return Goods at its sole discretion, without giving the notice of its decision to the Purchaser. The shipping expenses, re-stocking charges, and fees for the return of any Goods may be charged to Purchaser.
12. Terms of Payment. The terms of payment for Goods are net thirty (30) days from the date of the Seller’s invoices and services are due upon receipt, unless different terms have been agreed to in writing in a separate agreement by the Parties. All invoices shall be paid in full and Purchaser shall not be entitled to deduct, set-off or to withhold payment. Any invoice not paid by the due date will be considered outstanding and a late charge will be payable by the Purchaser on the outstanding amount from the due date until the of: (i) one percent (1%) per month (twelve percent (12%) annually); or (ii) the highest interest rate permitted by law. The Seller may at its sole discretion opt to not charge any charges for late payment.
13. Warranty. (a) The Seller warrants that the Goods are free from defects in materials and design: For new equipment: twenty four (24) months from date of shipment; (b) To avail itself of the Seller’s limited warranties, the Purchaser must make a written warranty claim by providing the Seller with written notice detailing specifically the nature of the alleged defect affecting the Goods within fourteen (14) days of discovery of such defect by delivering said Goods at its own cost to the Seller’s nearest location, prior to the expiration of the Seller’s warranties. The Seller shall investigate the warranty claim and inform the Purchaser of the results of this investigation. (c) Seller’s warranty shall not apply in cases of: (i) accidental damage; (ii) damages or failures due to accidents, power supply interruption, insufficient or contaminated fluids; and (iii) changes in operating conditions or environment/location. Should any failure to conform with this warranty appear during the specified periods under normal and proper use, Seller shall, if given prompt notice by Purchaser, repair or replace, the non-conforming Goods or authorize repair or replacement by the Purchaser at Seller’s expense. Goods that have been replaced become the property of Seller. (d) The foregoing warranties are exclusive and in lieu of all other warranties of quality, whether written, oral, or implied, and all other warranties, including without limitation any warranty of merchantability or fitness, are hereby disclaimed.
14. Delivery and Lead-Times. All delivery and production lead-times for Goods quoted by the Seller are estimations only and are, among other things, based upon timely receipt of all necessary information and approvals. Unless otherwise defined by the shipping terms in the quotation deliveries shall be Ex Works (Incoterms 2010) the Seller’s warehouse or its other facilities, as determined in the Seller’s sole discretion. For Goods shipped from outside of Canada, the deliveries are Ex Works (Incoterms 2010) the Seller’s particular facilities.
15. Force Majeure. In no event shall the Seller be held liable or responsible to the Purchaser or any other party for any delay, breach or failure arising, in whole or in part, by reason of Force Majeure including, but not limited to, all government action, declared or undeclared war, floods, fires, earthquakes, unusually severe weather conditions, epidemics, pandemics, civil unrest, riots or other civil disturbances, road conditions and construction, statutes, legislation, ordinances, court orders or regulations (including changes or repeal of these statutes, legislation, ordinances, court orders or regulations), strikes or labour disputes, inability to secure raw materials, supplies or labour, or any other event, cause, contingency or circumstance beyond the Seller’s reasonable control, which could prevent, hinder or delay the manufacture or delivery of the Goods.
16. Insurance: Each Party shall only maintain its standard commercial general liability insurance coverage in accordance with their insurers’ blanket insurance policies and any insurance coverage required under applicable law.
17. Confidentiality. In connection with this Contract or performance hereunder, Seller and Purchaser (as to information disclosed, the “Disclosing Party”) may each disclose Confidential Information to the other party hereto (the “Receiving Party”). “Confidential Information” shall mean all information related to the business, Goods, or services of the Disclosing Party that is not generally known to the public, and all pricing and terms of the contract, provided that the obligations of this paragraph shall not apply as to any portion of the Confidential Information which: (i) is or becomes generally available to the public other than as a result of disclosure by the Receiving Party, its representatives or its affiliates, or (ii) has been or is subsequently independently developed by the Receiving Party, its representatives or affiliates, without reference to the Confidential Information, or (iii) is required to be disclosed by law or valid legal process provided that the Receiving Party who intends to make such disclosure shall promptly notify the Disclosing Party in advance of such disclosure and reasonably cooperate in attempts to maintain the confidentiality of the Confidential Information. The Receiving Party agrees, except as otherwise required by law: (i) to use the Confidential Information only as the Disclosing Party intended it to be used by the Receiving Party in connection with providing or receiving the Goods, and (ii) to take reasonable measures to prevent disclosure of the Confidential Information, except disclosure to its employees to the extent necessary to facilitate providing or receiving Goods. Upon the Disclosing Party’s request, the Receiving Party shall destroy or return to Disclosing Party all copies of Confidential Information. If either party or any of their respective affiliates or representatives is required or requested by subpoena, interrogatories, or similar legal process to disclose any Confidential Information, such party agrees to provide the Disclosing Party with prompt written notice of such request, so that the Disclosing Party may seek an appropriate protective order or waive compliance by the Receiving Party with the provisions herein. It is understood and agreed that this Section 16 survives any expiration/termination of the contract.
18. Intellectual Property Rights. Neither Party shall have title nor property rights in the intellectual property of the other Party. All documentation and drawings, specifications and other technical information pertaining to the Goods, including all technical information reasonably necessary for the correct installation, operation and maintenance and the like of the Goods (collectively known as “Technical Information”), shall be considered as part of the Goods and the physical media on which the same are presented shall be granted to Purchaser by Seller, as a limited license in accordance with the present provision, upon full payment; provided however, that the copyright, patent, trademark, trade name, trade secret and other intellectual property contained therein shall be and remain the sole property of the Seller. The Seller grants to the Purchaser an irrevocable, royalty-free, non-exclusive, non-transferable, non-assignable, non-sublicensable, license to use the said intellectual property solely for the purpose of marketing, training and design of future goods and services..
19. Software. In the event the Goods contains or otherwise includes software, the software shall remain the sole property of Seller (and/or its affiliates or other third parties who are Seller’s licensors, if applicable), and in no event shall title thereto be sold or transferred to Purchaser. In the event any Goods supplied hereunder contain or otherwise include software, the following shall apply: (i) subject to Purchaser complying with these Terms, Purchaser is granted a non-exclusive, non-transferable license to properly use the software in machine readable object code form only; (ii) any license so granted is limited to the proper use of the Goods containing the software only in the manner authorized by Seller; and (iii) Purchaser shall not sublicense the software to any other entity nor assign its license rights. Notwithstanding the above, in the event Purchaser transfers (in compliance with any and all applicable laws and regulations) title to any Goods containing the software, the license granted hereby shall transfer to Purchaser’s transferee. Any license granted hereunder shall continue: (i) until terminated in accordance with this contract, or, (ii) for the useful life of the Goods in which the software is embedded or is otherwise an integral part, or, (iii) for the useful life of the software, whichever is shorter. Any modification, alteration, or removal or unauthorized use of the software constitute a breach of this contract and shall automatically terminate any license granted hereby. Purchaser shall not (and shall not permit any third party to) create derivative works based on the software, or reverse engineer, or disassemble or decompile the software, or transfer, copy, or modify, the software. In the event a separate written applicable Seller-provided Software License is provided with the Goods, specified in Seller’s quotation, and/or otherwise communicated to Purchaser, then the software shall be governed, in order of precedence, by the terms of the separate Software License and then by any non-conflicting terms hereof.
20. Trade Sanctions, Anti-Corruption and Ethical Standards. Each Party shall strictly abide by all applicable Canadian, US, UN and international trade sanctions and laws. Purchaser agrees and warrants that no Goods, items, equipment, materials, services, technical data, technology, software or other technical information or assistance furnished by Seller, or any good or Goods resulting therefrom, shall be exported or re-exported by Purchaser or its authorized transferees, if any, directly or indirectly, in violation of any law or regulation. The Parties agree to abide by all applicable anti-corruption legislation, especially the Corruption of Foreign Public Officials Act (Canada), the US Foreign Corrupt Practices Act, the UK Bribery Act and the OECD Convention on Combatting Bribery of Foreign Public Officials, and My Engineering’s Business Code of Practice and ethical standards, all as amended from time to time. If Buyer breaches any obligation in this Section, Purchaser shall indemnify Seller from all expenses, liabilities, sanctions, and fines arising from such breach.
21. Environmental Disclaimer. The environmental management at any site on which any Good is used is the responsibility of the Purchaser. Seller shall not be liable for any violation by the Purchaser of any environmental law or regulation, including but not limited to any law or regulation pertaining to noise, water, atmosphere, air, sewer, hazardous waste, disposal, etc.
22. Limitation of Liability. Notwithstanding anything else, the total liability, in the aggregate, of the Seller arising out of, related to, or resulting from the order or contract, or the performance or breach thereof, or the design, manufacture, sale, delivery, resale, repair, replacement, installation, technical direction of installation, inspection, service, operation, or use of any goods or services, shall be limited to the actual purchase price amount paid by the Buyer to the Seller for the specific goods/services giving rise to the claim (regardless of whether damages are characterized as arising out of breach of warranty, tort, contract, or otherwise). The Purchaser acknowledges that My Engineering Ltd shall not be liable for any delay or failure to perform the Services resulting from the Purchaser's failure to provide timely information, instructions, or approvals, and that such failure may affect the project timeline and delivery of Services. For purposes of this Section, the term “Seller” means Seller, its affiliates, suppliers, and subcontractors, and their respective employees/agents.
23. No Consequential Damages. Notwithstanding anything else, under no circumstances shall the Seller be liable for any loss of profits or revenue, loss of total or partial use of the goods or services, downtime costs, delay costs, or any consequential, indirect, incidental, or special damages, even if advised of the possibility of such damages or if such damages are foreseeable, and even if any of the limited remedies in this contract fail in their essential purpose (regardless of whether damages are characterized as arising out of breach of warranty, tort, contract, or otherwise).For purposes of this Section, the term “Seller” means Seller, its affiliates, suppliers, and subcontractors, and their respective employees/agents.
24. Client Cooperation and Information Delivery. The Purchaser acknowledges that timely completion of the Services requires their cooperation, including the provision of complete and accurate information, approvals, and instructions as requested by My Engineering Ltd. The Purchaser agrees to respond to any such requests promptly and to continue to communicate in good faith.
25. Notice of Delay. In the event that My Engineering Ltd requires information or action from the Purchaser to continue and/or complete the Services, and the Purchaser does not provide such information or take such action, My Engineering Ltd will notify the Client in writing of the delay (the "Delay Notice").
26. Suspension of Services. If the Purchaser fails to respond to the Delay Notice within two (2) weeks, My Engineering Ltd may, at its sole discretion, suspend Services until such time the necessary information or response is provided.
27. Right to Invoice. Notwithstanding the above, if the Purchaser has not responded or provided the necessary information within the time frame specified in Section 26, the Company reserves the right to issue an invoice for the entire projected cost of the Services as outlined in the initial agreement, or for the portion of the work already completed, whichever is greater. This invoice will become payable under the same terms as set out for regular invoices in the Agreement.
28. Resumption of Services. Upon receipt of the required information or instructions from the Purchaser, My Engineering Ltd will make reasonable efforts to resume Services. Additional costs incurred due to the suspension of Services and delay caused by the Purchaser may be invoiced separately at the Company's standard rates.
29. Non Exclusive Rights. All rights in the Terms shall be in addition to, and not in lieu of, the Seller’s other rights and remedies pursuant to applicable law.
30. Waiver. Any failure of the Seller to enforce any provision or to exercise any of its rights pursuant to the Terms or Contract shall not constitute a waiver, estoppel or relinquishment of any terms, conditions or rights pursuant to the Terms and Contract and will not limit the Seller’s right to enforce strict compliance of its rights at a later date.
31. Governing Laws and Jurisdiction. For the perfection of any security interest over the Goods sold to the Purchaser by Seller, the applicable law governing security interest of the province where the Goods are located shall apply. Otherwise, the interpretation, validity and performance of the Terms and Contract must be governed by and interpreted in accordance with the laws of the Province of Alberta, without taking into account conflict of laws rules. All disputes arising out of or in connection with these Terms, or in respect of any legal relationship associated with or derived from these Terms, will be finally resolved by arbitration under the Arbitration Rules of the ADR Institute of Canada, Inc. The seat of arbitration will be Edmonton, Alberta, Canada.
32. Severability. If any provision in the Terms should be held invalid, unenforceable or against public policy by a Canadian court of competent jurisdiction, the remaining provisions shall remain valid with full force and effect.
33. Entire Agreement. The Terms shall constitute and be deemed the entire agreement between the Seller and the Purchaser, and cannot be modified or amended in any way, except by a subsequent document, duly executed by a signing officer or employee of the Seller, who is authorized to bind the company. All other documents, negotiations, representations and agreements, either oral or in writing, made by any other persons, are of no effect and are expressly superseded.
34. Survival. The provisions of these Terms that by their nature are intended to survive expiration or termination of this Contractor, including but not limited to the provisions pertaining to intellectual property, confidentiality, warranties, indemnification will survive the expiration or termination of this Contract.
35. Language. The Parties hereby acknowledge that they have expressly requested and are satisfied that these presents, and the documents related thereto, be drawn in English.
36. Acceptance of Terms. By signing these Terms, the Purchaser acknowledges and agrees that such signature constitutes an official order for the Goods and services specified, and no separate purchase order is required. However, if the Purchaser’s internal processes require the issuance of a purchase order, this signed document will serve as a binding agreement in conjunction with any subsequently issued purchase order.
37. Order and Payment Terms. Upon signing these Terms, the Purchaser authorizes the Seller to proceed with the fulfillment of the Goods and services as specified herein, without the need for a separate purchase order. The Seller will issue an invoice based on the terms outlined in this document, and payment shall be due as per the agreed payment terms.
38. Conflict Resolution. In the event of any conflict between these signed Terms and any subsequently issued purchase order, the provisions of these Terms shall prevail, unless explicitly agreed otherwise in writing by both Parties.