In these Wajax Standard Terms and Conditions of Sale (the “Terms”):
- “Buyer” means the purchaser of the Equipment pursuant to the Contract;
- “Contract” means the contract formed between Buyer and Wajax pursuant to a written contract (of which these Terms form a part), or pursuant to a Purchase Order which has been accepted by Wajax in writing (of which these Terms shall be deemed to form a part), in either case with respect to the Work;
- “Equipment” means the equipment to be sold by Wajax to Buyer pursuant to and as specified in the Contract;
- “Parties” means Buyer and Wajax;
- “Purchase Order” means a written purchase order of Buyer in form and content satisfactory to Wajax in its sole discretion which has been accepted by Wajax in writing;
- “Purchase Price” means the price payable by Buyer to Wajax pursuant to the Contract;
- “Services” means the services to be provided by Wajax to Buyer pursuant to and as specified in the Contract;
- “Wajax” means the Wajax entity identified on the Contract (either Integrated Distribution Systems Limited Partnership or Wajax Industrial Components Limited Partnership); and
- “Work” means the Equipment and the Services.
The Contract is the complete and entire agreement between the Parties with respect to the subject matter of the Contract. No understandings or communications between the parties, whether written or verbal, including but not limited to any bid invitation, proposal, tender, bid or other document, exchanged between the parties on or before the date of the Contract, or any information and data contained in general product documentation and price lists, form part of the Contract and none of the foregoing has any legal effect between the parties unless contained expressly in the Contract.
The Parties shall act reasonably and in accordance with the principles of good faith in dealing with the performance of this Contract. Unless expressly provided in this Contract that a Party may exercise its sole discretion with respect thereto, where the Contract requires the consent, approval or similar action by a Party, such consent or approval shall not be unreasonably withheld or delayed and wherever the Contract gives a Party a right to determine, require, specify or take similar action with respect to a matter, such determination, requirement, specification or similar action shall be reasonable.
In the event of any conflict or inconsistency between the Terms herein and the terms and conditions contained in any acknowledgement or in any other form issued by Buyer, whether or not any such form has been acknowledged or accepted by Wajax, the Terms herein shall prevail unless specifically set out in the Contract with reference to these Terms. Any conflicting or additional terms not expressly set out in the Contract shall be of no force or effect. No waiver, alteration, revision or modification of the Terms shall be binding on either Party unless made in writing and signed by a duly authorized representative of Wajax and confirmed by an official change order to the Contract. In the event of part of the Contract being ineffective, the validity of the remaining portion shall not be affected, provided such ineffectiveness is without prejudice to the essence of the Contract.
Failure or delay by either party in enforcing any right or provision hereof shall not be deemed a waiver of such provision or right.
Each Purchase Order issued by Buyer shall be binding only when accepted in writing by an authorized representative of Wajax, and shall be deemed to incorporate these Terms. If Wajax accepts a Purchase Order for the Equipment and Work, Wajax shall acknowledge, sign and return via email a scanned signed copy of the Purchase Order. Any delivery commitments made as part of the Contract shall commence on this date of acknowledgement only. Any work performed prior to the acknowledgement by Wajax shall not constitute a commencement date in advance of the date of acknowledgement.
Acceptance and Remedial Work
When Wajax considers the supply of the Work (or any portion of the Work) to be complete in accordance with the Contract, Wajax will notify Buyer in writing and will request that Buyer accept such Work. Buyer will be deemed to have unconditionally accepted the Work (or the relevant portion of the Work) if it does not, within five (5) days of receipt of Wajax’s completion notice, provide written notice to Wajax of Buyer’s rejection of the same, provided that Buyer may only reject any Work if it is not substantially in conformity with the requirements of the Contract. Prior to acceptance of Work and prior to the Equipment going into operation, the Buyer may identify a final deficiency list of items to be remedied by Wajax. If Wajax is in agreement with the deficiency list, the Work is deemed to be completed and accepted, with exception of the deficiency list items and the Equipment may be put into operation. If the Buyer, for any reason, puts Equipment into operation prior to a deficiency list being accepted by Wajax, the Work is then automatically deemed to be accepted without any deficiencies.
- Wajax warrants that:
- the design, manufacture and material of the Equipment is of good workmanship, free of defects, and in conformance with the manufacturer’s specifications;
- Wajax has good and marketable title to the Equipment and that such title, when it passes to Buyer, will be free and clear of any and all liens, claims, charges, security interests, encumbrances and rights of other persons arising as a result of any actions or failure to act of Wajax; and
- the Services will be performed in a good and workmanlike manner.
- If any Equipment (or part thereof) fails to conform with the warranties contained herein during the applicable warranty period, and the terms and conditions of warranty have been satisfied, Wajax, in its sole discretion, shall promptly repair or replace such Equipment (or part) at Wajax’s expense and to be delivered FCA Wajax facilities. Wajax shall warrant any repaired or replaced parts until the expiration of the original Equipment warranty. Parts that have been replaced shall become the property of Wajax. If any Services fail to conform with the warranties contained herein during the applicable warranty period, and the terms and conditions of warranty have been satisfied, Wajax, in its sole discretion, will re-perform such Services in accordance with the warranty standards for such Services.
- The warranty period for the Equipment shall extend for the lesser of (i) twelve (12) months from the date of Buyer’s acceptance or deemed acceptance of such Equipment; or (ii) eighteen (18) months after the date of delivery of such Equipment, unless otherwise stipulated within the manufacturer’s warranty statement with respect to such Equipment. The warranty period for the Services shall extend for a period of six (6) months from the date of performance of such Services.
- Wajax is the only authorized agency to perform warranty work and is not responsible for any cost incurred by Buyer or any other third party that are related to the Work. Any alteration or modification of the Equipment made by any person not authorized by Wajax shall immediately terminate Wajax’s warranties hereunder and any responsibility of Wajax relating to the Equipment or its use.
- The warranty contained herein shall not cover
- normal wear and tear,
- parts that, owing to their inherent material properties or their specified use, are subject to premature wear,
- testing, transportation, labour and any incidental cost involved with defects in material or workmanship concerning the Equipment, or
- damage caused by improper use, care, storage, operation, maintenance, handling, treatment, overloading, the use of unsuitable fuels, oils or other materials, chemical, electro-chemical or electrical influences, failure to adhere to the recommendations contained in Wajax’s or manufacturer’s materials or user manuals, failure to undertake recommended preventative maintenance or any other circumstances which may arise through no fault of Wajax.
- Buyer may only claim Wajax’s warranty if:
- the event giving rise to the warranty claim occurs within the warranty period set out herein,
- Buyer advises Wajax in writing of the claimed defect not later than 7 days after the occurrence of the event,
- Buyer has observed the instructions issued by Wajax in respect of the handling and maintenance of the Equipment, and in particular, has duly carried out any specified checks,
- no subsequent adjustments have been carried out without the approval of Wajax,
- all spare parts to be used for the Equipment have been supplied by Wajax,
- the defects of the Equipment and materials supplied are not caused by or related to equipment or material provided or designs specified by Buyer or any acts or omissions of Buyer, and,
- all repairs to the Equipment have been completed by an authorized distributor of that part of the Equipment.
- Notwithstanding any other provision of the Contract, Wajax does not provide any warranties or guarantees for products, work or services supplied by third party manufacturers or service providers, and the terms and conditions, including as to warranty length, that are contained in any manufacturer’s warranty applicable to any portion of the Equipment or Work shall take precedence over the terms of Wajax’s warranty herein and such Wajax warranty is limited and subject to the terms and conditions of any applicable manufacturer’s warranty.
- Notwithstanding any other provision of the Contract, the warranty of Wajax set out herein and any applicable manufacturer’s warranty are the only warranties applicable to the Work and all other warranties, conditions, guarantees or similar obligation, whether express or implied by fact, by law (including any statute or regulation), by customer or trade usage or by any course of dealing, including, without limitation, any implied warranties of quality, merchantability, fitness for purpose and fitness for a particular purpose or otherwise, are excluded from the Contract and are inapplicable. The warranty of Wajax set out herein and any applicable manufacturer’s warranty is the only remedy of Buyer arising out of defective or deficient Equipment or Work.
Delivery and Title
- Unless otherwise specified in the Contract, any delivery date or schedule specified in the Contract is an estimate only. Wajax shall use its reasonable commercial efforts to meet such delivery date or schedule but shall not be liable for delay.
- Title to the Work and Equipment will transfer to the Buyer when Wajax receives full payment, including all applicable taxes, from Buyer or in the case of progress payments, title shall pass only for the portion of Work or Equipment Wajax has received payment for, including applicable taxes, as described by such progress payment milestone.
- Delivery of the Equipment is FCA Wajax facilities, or as otherwise stipulated within the Contract, and defined in accordance with Incoterms 2010 rules and regulations. The method and route of shipment shall be as mutually agreed in the Contract.
- Buyer shall have care, custody and control of, and shall bear the risk of physical loss with respect to the Equipment and all materials and supplies in connection with the Work, even if title has not passed, upon whole or part delivery to the Buyer in accordance with the delivery terms specified in the Contract. Buyer shall, at the request of Wajax, take all measures as may be reasonably necessary to assist Wajax in protecting Wajax’s title to the Equipment. If Buyer fails to take any such measures, the balance of the Purchase Price shall become immediately due and payable and Wajax may retake possession of the Equipment or take all such other measures as are reasonably necessary to prevent Buyer from using the Equipment.
Each Party agrees to the extent of its responsibility to save, defend, indemnify and hold harmless the other Party against any and all liability, claims and costs whatsoever for injury to or death of any person(s) and for loss or damage to any property (belonging to the other Party or otherwise) occurring in connection with the performance of obligations or the exercise of rights hereunder resulting from the negligent acts, faults or omissions of the indemnifying Party, its agents, employees or subcontractors in connection with the Work or any breach by the indemnifying Party of a representation or any covenant contained in the Contract. Buyer agrees to save, defend, indemnify and hold harmless Wajax against any and all liability, claims and costs whatsoever relating to the Work and its use arising after delivery of the Work, including without limitation pursuant to any third party claims. These indemnities shall survive cancellation or termination of the Contract.
Limit of Liability
Notwithstanding any other provision of the Contract, Wajax shall in no event be liable to Buyer or any other person, by way of indemnity or by reason of any breach of contract, warranty or statutory duty or in tort or otherwise, for any indirect, special, incidental, punitive, exemplary or consequential loss or damage, or any liquidated damage for any obligation, including delivery of equipment or documents or performance of Wajax or the Equipment, or as a result of any cancellation, which may be suffered by Buyer or any other person, including loss of revenues or profits or opportunities, and whether or not the possibility of such losses or damages were known or should have been known by Wajax.
Notwithstanding any other provision of the Contract, the total aggregate liability of Wajax to Buyer or any other person under or in relation to the Contract or the Work, whether by way of indemnity or by reason of any breach of contract, warranty or statutory duty or in tort or otherwise, shall not exceed the Purchase Price. Buyer shall provide written evidence to Wajax that Buyer’s insurer has waived its right of subrogation against Wajax.
Prior to commencing any field services and continuing until the field services are completed, Wajax (in its name and at its sole expense) shall maintain broad form insurance policies with public bodies or insurance carriers authorized to do business in the province in which the services are to be performed, including coverage for contractual liability, bodily injury, product and completed operations liability and property damage with a minimum limit of CAD $1,000,000 (One million Canadian Dollars) or its equivalent per occurrence.
Neither Party shall be considered in default or be liable for any failure to perform any obligation under the Contract (other than a payment obligation) in the event and to the extent that such failure is caused by a condition of force majeure. A condition of force majeure shall arise from any circumstances beyond the reasonable control of the affected Party which prevents or impedes the execution of the Contract, including without limitation the following:
- Delays of Wajax’s sub-contractors or suppliers;
- Labour disruptions including strike or lock out, including employees of Wajax and its sub-contractors or suppliers.
- War, hostilities, or military mobilization.
- Riot, insurrection, seizure by non-governmental groups, or civil disturbance.
- Earthquake, flood, fire or other natural physical disaster.
- Embargo, prohibition on import and exportation of materials or equipment or services.
- Act of terrorism.
The party claiming force majeure shall give notice in writing to the other party of the occurrence of any force majeure event which causes or is likely to cause any failure to perform any obligation hereunder. Such notice shall include the nature of the event, the expected duration and any anticipated impact on performance of the Order. Within five (5) working days after the cessation of the force majeure event, the affected party shall give a further notice specifying the final impact on the performance of the Order and a plan for recovery, including any cost impacts for such recovery plan. Failure to give either of the above notices may cause denial of any relief for the force majeure event, at the affected party’s discretion.
No assignment of the Contract, in whole or in part, or of monies due or to become due hereunder shall be made by the Buyer without the prior written consent of Wajax, and notwithstanding any such consent by Wajax or assignment by Buyer the original party hereto as Buyer shall remain liable, jointly and severally with the assignee, for the obligations of Buyer under the Contract. Wajax in its sole discretion may assign or subcontract its rights or portion of its responsibility hereunder to its affiliates or any third party.
If Buyer fails to accept delivery at the delivery time set out in the Contract for reasons other than for substantial non-conformity of the Equipment with the Contract, Wajax shall arrange for storage of the Equipment at Buyer’s risk and expense. Notwithstanding the foregoing, Buyer shall pay any part of the Purchase Price which becomes due on delivery, as if delivery had taken place.
Requests by Buyer for any changes to the Work, including but not limited to, changes in specifications, quantities, delivery obligations and terms of payment, must be made to Wajax in writing. All such requests are subject to Wajax’s written acceptance and may result in adjustments to the Purchase Price and/or delivery schedules which must be agreed to as part of a contract change order.
Cancellation for Convenience
- Buyer shall have the right to cancel for its convenience any or all unperformed part(s) of the Contract at any time by written notice to and acknowledged by Wajax, provided that if a cancellation schedule is included in the Contract, then Buyer shall only have the right to cancel any or all unperformed part(s) of the Contract at the next milestone defined within the cancellation schedule. On the cancellation date stated in the notice, Wajax shall discontinue all cancelled work, shall (with respect to the cancelled work) place no additional orders, and preserve and protect materials purchased for or committed to the cancelled work, work in progress, and completed goods, and shall dispose of these materials and goods in accordance with Buyer instructions.
- In connection with a cancellation pursuant to this Section, Buyer will pay and Wajax will accept as final payment either the amounts identified in the cancellation schedule included in the Contract or if no cancellation schedule is included in the Contract, the total Purchase Price payable pursuant to the Contract prorated to the portion of the entire scope of the Contract performed to the date of cancellation, plus Wajax’s costs in connection with the disposition of work and material on hand, any demobilization costs and any subcontract cancellation payments and amounts previously paid by Buyer. For greater certainty, Wajax shall be entitled to any loss of profits, contribution to overhead or incidental, consequential or other damages due to such cancellation.
Cancellation for Wajax Default
- Wajax shall be in default hereunder upon occurrence of any one of the following events, which shall be events of default if not cured within thirty (30) days following delivery to Wajax of a notice of such event from Buyer, or, if capable of being cured but not within such period, if Wajax has not commenced the cure within such period and does not thereafter diligently pursue such cure:
- Wajax shall have defaulted in its performance under any material provision of the Contract, or
- Wajax shall be sequestrated or liquidated as insolvent or placed under judicial management, whether provisionally or finally, or shall commit any act of insolvency or shall make, or prepare to make an arrangement or composition with, or assignment in favour of creditors
- In case of such termination, Wajax shall, subject to its receipt of all amounts payable to it pursuant to the Contract:
- use its best efforts to assign to Buyer all contracts with any supplier or subcontractor of Wajax as may be designated by Buyer, to the extent such contracts are assignable, provided that the Buyer shall assume and become responsible for all obligations of Wajax arising under such contracts with the supplier or subcontractor after the date of such notice of termination, and
- deliver the relevant design documents made by it to the Buyer.
- As soon as practicable, however no later than thirty (30) days after a notice of termination has taken effect, the Parties shall in good faith determine the value of the Work, Equipment and Wajax’s documents, and any other sums due to Wajax for Work executed in accordance with the Contract, for which Wajax is entitled to receive payment from Buyer.
Cancellation for Buyer Default
- Buyer shall be in default hereunder upon the occurrence of any one of the following events if not cured within thirty (30) days following the delivery to Buyer of a notice of such event or, if capable of being cured but not within such period if Buyer has not commenced the cure within such period and does not thereafter diligently pursue such cure:
- Buyer shall have assigned or transferred the Contract or any right or interest herein except as expressly permitted by this Contract,
- any representation made by Buyer in the Contract shall have been materially false or misleading when made,
- Buyer shall have defaulted in its performance under any material provision of the Contract,
- Wajax does not receive from Buyer the payment(s) due within the agreed payment term,
- a prolonged suspension affects the whole of the Work, or
- Buyer shall be sequestrated or liquidated as insolvent or placed under judicial management, whether provisionally or finally, or shall commit any act of insolvency or shall make, or prepare to make an arrangement or composition with, or assignment in favour of creditors.
- In addition, title to all Work, material, equipment tools and supplies that shall have previously passed to Buyer shall automatically revert to Wajax until Wajax has received the payment required by this Section, at which time title shall pass to Buyer.
- In case of such termination, Wajax shall, in addition to any other rights and remedies that may be available by law or in equity or as otherwise provided herein, be entitled to receive from Buyer:
- the greater of payment for Work actually performed prior to termination for which Wajax has not already received payment (including, without limitation, the costs of supplies and inventory, and payment for work in progress and Equipment procured or produced but not yet delivered at the time of termination and profit earned and overhead costs to the time of termination), or the next milestone payment; and
- all other costs and expenses incurred by Wajax by reason of such termination of the Contract, including, without limitation, demobilization costs, interest on overdue payments and any subcontract cancellation payments or costs.
Wajax retains all ownership of its intellectual property of every nature and kind and of all materials prepared or developed by Wajax or its employees, including without limitation all calculations, maps, diagrams, notes, models, etc. The Buyer may use the intellectual property contained in any Work product or deliverable by means of a perpetual, royalty-free, non-exclusive license to use any such intellectual property in connection with the operation of the deliverables under the Contract. Under no circumstance shall Buyer reverse engineer or design the Equipment for Buyer’s use, without prior written permission from Wajax.
Unless otherwise expressly stated in writing, all information including general business information, financial data, technical data, reports, photographs, electronic files, specifications, software, drawings, tools, dies, patterns, plans methods or other intellectual property supplied, disclosed, conceived or prepared by Wajax in connection with the Contract shall be considered confidential, shall not, at any time, be disclosed to a third party by Buyer without written consent of Wajax and shall be used by Buyer solely for the purpose of using and maintaining the Equipment.
Inspections and Audits
The Buyer has the right to inspect the equipment at Wajax facilities only upon reasonable notice of its intent to do so. Any inspection shall not impede or restrict Wajax’s ability to continue to perform it obligations under the Contract and any impediment to perform may result in additional charges to Buyer.
All invoices of Wajax are due and payable by Buyer NET 30 days from date of invoice and are payable by Buyer without any set off, withholding or other deduction. In the event that hold backs are negotiated as part of the Contract, the total amount of applicable taxes including HST, GST and/or PST will be due with first invoice. Wajax may suspend the Work where Wajax determines in its discretion that the Buyer’s credit situation is or has become insecure. The Buyer agrees to immediately notify Wajax of any material change in the Buyer’s financial condition or credit worthiness. Overdue payments shall bear interest at an annual rate equal to the “prime rate” plus 3.5%. “Prime rate” means the annual rate of interest announced by the Bank of Canada as its prime or reference rate then in effect for the purpose of determining interest rates on Canadian dollar commercial loans. If Buyer has not paid an amount due within the agreed payment term, Wajax may, upon notice to Buyer, suspend performance of the Contract and the Buyer will be in default in accordance with Section 18. If Wajax suspends its performance, then the completion, delivery and other dates contemplated under the Contract shall be adjusted as reasonably required to accommodate the effects of Wajax suspension of performance and Buyer shall pay Wajax additional costs reasonably and necessarily incurred by Wajax.
The Contract shall be governed by, construed and interpreted in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein (but without giving consideration to any conflict of law rules). Wajax and Buyer agree that the courts of Ontario have jurisdiction to entertain any legal proceedings in respect of the Contract and Wajax and Buyer hereby irrevocably consent to and attorn to the jurisdiction of such courts. The International Sale of Goods Act and the United Nations Convention on Contracts for The International Sale of Goods do not apply to the Contract.