For the purposes of construction projects, items not specifically addressed within DHC Communications Inc.., General Terms and Conditions and where Seller is providing Goods and Services as subcontract work, such work shall be governed by CCA 1 Stipulated Price Subcontract in its most recent form. Where Seller is providing Goods and Services direct with a Customer who is the owner of the project, such items not specifically addressed herein shall be governed by CCDC 2 Stipulated Price Contract in its most recent form.
The Customer and DHC Communications Inc. (“Seller”) have entered into a binding quotation for the provision of the “Goods” or “Services” described therein and is expressly conditioned on Customer’s assent to the following General Terms and Conditions that will take priority over and exclude any terms and conditions proposed by Customer dealing with the same or similar subject matter, including but not limited to any pre-printed terms and conditions on the Customer’s purchase order.
1. Sales and payment terms. All pricing is in Canadian dollars and the fees are exclusive of GST & PST. Upon acceptance of this proposal, the client shall provide DHC COMMUNICATIONS Inc. with a written, tangible document detailing its acceptance (i.e. purchase order document, credit card, etc.)
Terms are net 30 days from date of invoice, unless mutually agreed otherwise in writing. If payment is not received when due, Customer will be responsible for all collection and legal fees and Seller shall be entitled to charge interest at a rate of the lesser of [eighteen percent (18%)] per annum, and the highest rate permissible by applicable law. Customer may not retain payment on account of any claim that it may have against Seller or offset any such claim against the invoiced price. Nothing shall serve to void Seller’s construction lien and/or bonding claim rights in accordance with provincial law. If Customer has an account in arrears with Seller, Seller reserves the right to withhold documentation including verification reports and/or inspection certificates until such time account is current.
2. Delivery, title, and risk of loss. All shipments of Goods will be FOB shipping point. Delivery, shipment, and installation dates are estimated dates only, and unless otherwise specified are figured from date of receipt of complete technical data and approved drawings as such may be necessary. Seller will ship via its preferred carrier. Seller reserves the right to make partial shipments unless specifically stated otherwise on Customer’s purchase order. Freight charges will be prepaid by Seller and invoiced to Customer unless mutually agreed otherwise in writing. Customer must promptly file claims for damaged items with the freight carrier. Seller will determine the point of shipment and Goods may be shipped from multiple locations. All Services will be FOB destination.
3. Force Majeure. Seller shall not be liable, directly or indirectly, for non-delivery, delays in performance, or any other failure to comply with our obligations under these terms and conditions if same is due to labour difficulties, inability to secure transportation, shortages, lockouts, strikes or stoppages of any sort, fires, floods, accidents (in manufacture or otherwise), failure or delay in obtaining materials or manufacturing facilities, acts of government, weather, embargoes, civil unrest, terrorism, war, invasion, riots, acts (or omissions) of Customer or Customer’s suppliers or agents including (but not limited to) Customer’s failure to promptly supply all necessary documentation or acts of God or any other cause beyond our reasonable control, and, when such delays arise, all of our obligations and estimated dates 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 the delay. Seller will be entitled to an equitable price and performance adjustment.
4. Cancellation and Return of Goods. Goods may be cancelled only with Seller’s written consent and upon payment of reasonable and proper cancellation charges. Goods may be returned only when specifically authorized by Seller in writing. Customer may be required to pay reasonable charges including cost of placing returned Goods in saleable condition, sales expenses further incurred, a restocking charge and transportation costs (incoming and outgoing) which Seller pays.
5. Governing law. This Agreement shall be governed by the laws of the jurisdiction in which the Goods and Services are provided and performed.
6. WARRANTY. SELLER WARRANTS TO CUSTOMER THAT (I) THE GOODS WILL BE SHIPPED FREE FROM DEFECTS IN MATERIAL, WORKMANSHIP AND TITLE AND THAT(II) THE SERVICES WILL BE PERFORMED IN A COMPETENT AND REASONABLE MANNER IN ACCORDANCE WITH ANY MUTUALLY DETERMINED SPECIFICATIONS IN WRITING. ALL GOODS (INCLUDING INCIDENTAL MATERIALS AND CONSUMABLES USED IN THE SERVICES AND SOFTWARE) WILL CARRY ONLY THE WARRANTY OF THEIR ORIGINAL MANUFACTURER OR SOFTWARE PROVIDER. Unless otherwise stated in the binding quotation, the warranty period for Goods and Services is one year from substantial completion of Sellers work. If Goods or Services do not meet the above warranties, Customer will promptly notify Seller in writing within the warranty period. Seller will thereupon (i) at Seller’s option, repair or replace the defective Goods, or (ii) re-perform or correct the defective Services. Where a failure cannot be corrected by Seller’s reasonable efforts, the parties will negotiate an equitable adjustment in price. Any repair, replacement, modification or reperformance by Seller hereunder will not extend the applicable warranty period. Customer will bear the costs of access (including removal and replacement of systems, structures or other parts of Customer’s facility), de-installation, decontamination, re-installation and transportation of Goods to Seller and back to Customer. These warranties and remedies are conditioned upon (a) the proper storage, installation, operation, and maintenance of the Goods and conformance with the proper operation instruction manuals provided by Seller or its suppliers or subcontractors, (b) Customer keeping proper records of operation and maintenance during the warranty period and providing Seller access to those records, and (c) modification or repair of the Goods only as authorized by Seller in writing. Seller does not warrant the Goods or any repaired or replacement parts against normal wear and tear or damage caused by misuse, accident, or use against the advice of Seller. Any modification or repair of any of the Goods not authorized by Seller including any third-party repair or attempted repair will render the warranty null and void. This clause provides the exclusive remedies for all claims based on breach or a failure of or defect in Goods and Services, whether the breach, failure or defect arises before or during the applicable warranty period and whether a claim, however described, is based on contract, warranty, indemnity, tort/extra contractual liability (including negligence), strict liability or otherwise. THE WARRANTIES PROVIDED IN THIS CLAUSE ARE EXCLUSIVE AND IN LIEU OF, AND SELLER EXPRESSLY EXCLUDES ANY AND ALL OTHER WARRANTIES, GUARANTEES, OBLIGATIONS, LIABILITIES, REPRESENTATIONS (INNOCENT OR NEGLIGENT) OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, SUITABILITY, QUALITY OR CONDITION OR ANY CONDITION OR WARRANTY ARISING BY STATUTE OR OTHERWISE IN LAW OR IN EQUITY OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
7. Limitation of Liability. Seller is not an insurer, and payments for Seller’s Goods and Services are based solely on the value of the Goods and Services provided and are unrelated to the value of the Customer’s premises, its contents or occupants. SELLER SHALL NOT BE LIABLE TO CUSTOMER OR ANY PERSON WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE, OR UNDER ANY STATUTE OR REGULATION, FOR ANY COST OR EXPENSE, NOR FOR ANY CLAIMS ARISING OUT OF THE SERVICES PROVIDED BY SELLER, THE SUPPLY OR USE OF THE GOODS FURNISHED BY SELLER, NOR FOR ANY PENALTY, EXPENSE, LOSS OR DAMAGE OF ANY KIND OR NATURE WHATSOEVER IN ANY MANNER RESULTING FROM ANY BREACH OR FAILURE IN PERFORMANCE BY SELLER HEREUNDER, WHETHER OR NOT FROM NEGLIGENCE, FUNDAMENTAL BREACH OR BREACH OF A FUNDAMENTAL TERM OTHER THAN FOR CUSTOMER”S ACTUAL DIRECT DAMAGES WHICH IN NO EVENT SHALL EXCEED THE INVOICE PRICE PAID TO SELLER FOR THE GOODS THAT ARE THE SUBJECT OF CUSTOMER”S CLAIM, OR THE PRICE PAID DURING THE YEAR IN WHICH THE SERVICES WERE PERFORMED. IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL (INCLUDING LOSS OF PROFITS) OR OTHER SIMILAR DAMAGES, REGARDLESS OF THE LEGAL THEORY OF ANY CLAIM, EVEN IF ADVISED OF THE POSSIBILITY THEREOF. The foregoing limitation of liability is a condition of sale of the Goods and provision of Services at the price quoted and shall apply notwithstanding any defect in or failure of, including total failure of any Goods. If Customer is supplying the Goods to a third party, Customer will require the third party to agree to be bound by this clause and will indemnify, defend and hold Seller harmless from and against any and all claims made by the third party in excess of the limitations and exclusions of this clause. Seller will not be liable for any advice or assistance that is not required under the Agreement.
8. Title / Non-Payment / Intellectual Property. Title to the products and to the work product arising from any Goods or Services shall not pass to Customer until Seller has been paid in full for such Goods and Services. Products shall be and remain personal or moveable property, notwithstanding their mode of attachment to realty or other property. If default is made in any of the payments herein, Customer agrees Seller may retain all payments which have been made on account of the purchase price as liquidated damages, and shall be free to enter the premises where the products may be located and remove them as Seller’s property, without prejudice to its rights to recover any further expenses or damages suffered by reason of non-payment.
“Intellectual Property” shall mean all patents, copyrights, trademarks, confidential Information and other similar rights and information contained in, arising out of, or applicable to, work performed by Seller or the deliverables (including, but not limited to, any digital or written materials such as reports, software code, drawings, schematics, programming, evaluations, etc.) or specified to be performed as part of the Goods or Services hereunder.
Customer acknowledges and agrees that Seller and its licensors own all Intellectual Property and proprietary rights underlying in the Goods and Services provided to Customer. Customer’s use of the Intellectual Property and proprietary rights is authorized only in accordance with the licenses provided to it. Unless otherwise agreed, upon termination of these General Terms and Conditions for any reason, such authorization will cease.
9. Hazardous Substances. Customer shall be responsible for all costs, expenses, damages, fines, penalties, claims and liabilities associated with or incurred in connection with any hazardous materials or substances, including but not limited to asbestos, upon, beneath, about or inside customer’s equipment , facility or property. Title to, ownership of, and legal responsibility and liability for any and all such hazardous materials or substances, shall at all times remain with Customer. Customer shall be responsible for the removal, handling and disposal of all hazardous materials or substances in accordance with all applicable governmental regulations. Customer shall defend, indemnify, reimburse and hold harmless Seller and its officers, directors, agents, and employees from and against any and all claims, damages, costs, expenses, liabilities, actions, suits, fines, and penalties (including without limitation, attorneys’ fees and expenses) suffered or incurred by any of such indemnified parties, based upon arising out of or in any way relating to exposure to, handling of, or disposal of any hazardous materials or substances in connection with the Services performed hereunder. Seller shall have the right to suspend its work with no penalty to Seller until such hazardous materials or substances are removed. The time for completion of the work shall be extended to the extent caused by the suspension and the Service price equitably adjusted.
10. Entire Agreement. This Agreement and provisions of the binding quotation made in respect of the Goods and Services represents the entire agreement between the parties for the purchase of the Goods or Services. Notwithstanding any negotiations or discussions or any provision to the contrary in any purchase order or other document, all terms and conditions in any document which modify, add to or are at variance with the provisions in this Agreement will be binding only if Seller expressly accepts them in writing.
11. Language. It has been agreed between the parties hereto that this Agreement and all related documents thereto be drawn in the English language. Il a été convenu entre les parties aux présentes que ce Contrat ainsi que tous les documents y afférents soient rédigés en langue anglaise.
12. Miscellaneous. This Agreement cannot be waived, varied, modified or amended in any manner (including subsequent conduct between the parties) unless agreed upon in writing by both parties. Seller reserves the right to terminate this Agreement for Customer’s failure to pay when due or Customer’s insolvency. If any provision of this Agreement is found by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision shall be severed from this Agreement to the extent of its illegality, invalidity or unenforceability and the remaining provisions of this Agreement shall continue in full force and effect.
NOTICE: This material is propriety to DHC COMMUNICATIONS INC. and has been given on a confidential and restricted basis. DHC COMMUNICATIONS INC. expressly reserves all rights, without waiver, election, or other limitation to the full extent allowed by law, in and to this material and the information contained herein. Any reproduction, use, or display or other disclosure or dissemination, by any method now known or later developed, of this material or the information contained therein, in whole or in part, without the prior written consent of DHC COMMUNICATIONS INC. is strictly prohibited.
TRADEMARKS: All products or services mentioned in this document are identified by the trademarks or service marks of their respective companies or organizations. DHC COMMUNICATIONS INC. Corporation refuses any responsibility for specifying the trademarks owned by other companies or organizations.
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