haynes Elevators’ Commercial Terms and Conditions of Sale

 

 

1. AGREEMENT. hE's sale of Goods, Software, and Services (“Product”) as well as its performance of Services and Buyer’s use of the Software are subject to the terms and conditions of this document between Buyer and hE (the "Agreement").  “Buyer” shall include itself and any of Buyer’s affiliates that request the purchase of Product through the means of a purchase order or other conveyance of the Buyer’s requirements (“Order”). Haynes Elevators Inc. (“hE”) shall include itself and its distributors, dealers and licensors (collectively referred to as “Affiliates”) with which such an Order is placed. In instances where Buyer purchases through an Affiliate,  final prices and terms and conditions of sale will be as agreed between Buyer and the Affiliate from which Buyer makes such purchases; however, the terms set forth herein are applicable to the Buyer’s use of hE Software and the performance of hE Services. 

 

2. ACCEPTANCE. This Agreement shall be in effect when hE issues written confirmation of acceptance of a Buyer’s Order (“Acknowledgement”). Buyer accepts the Acknowledgement and this Agreement unless Buyer advises hE in writing of a dispute within fourteen (14) days of the date of such Acknowledgment. The Order is subject to acceptance or cancellation by hE, in hE's sole discretion. Shipping and delivery dates are provided as estimates only to which hE will provide best efforts to meet. Each accepted Order will be interpreted as a single agreement, independent of any other Order. 

 

3. CONTRACT. The whole agreement that exclusively governs the sale of Products by hE to Buyer are: this Agreement, the Acknowledgement, the Service Agreement (if any) and any other documents referred to within the Acknowledgment including the Order (collectively the “Contract”). In the event of a conflict between any of these documents, the terms of these documents will be interpreted in the following order of precedence: (1) the Service Agreement; (2) this Agreement; (3) the Acknowledgement; and (4) the Order. The Contract supersedes all prior understandings, negotiations, and dealings between the parties with respect to the Contract. No agreement or understanding, oral or written, in any way purporting to modify the terms of the Contract shall be binding upon either party unless contained in a writing signed by the party against whom enforcement of such agreement or understanding is sought. 

 

4. PRICE. The prices charged for Products purchased under this Agreement shall be the amounts set forth in hE's price book or other quotation as provided from time to time. Quoted prices will remain in effect only until the expiration date of the quote or hE's acceptance of an Order by way of an Acknowledgement.   

 

5. EXCLUSIONS. Unless hE agrees otherwise in the Acknowledgement, hE’s quoted and/or acknowledged prices for the Products exclude charges for carriage, taxes, insurance and customs duties that either party is required to pay on the subject sale of Products, but include the costs of standard packaging of the Products. Any and all current or future taxes, fees, or governmental charges applicable to the sale,  delivery or shipment of the Product that hE is required to pay or collect shall be shall be payable by Buyer either directly or if paid by hE, paid by Buyer upon receipt of invoice from hE of such additional costs which are not subject to any offset or reduction for any reason. 

 

6. CURRENCY. Buyer shall pay the Price in the currency as directed in the Acknowledgement. 

 

7. INVOICE.Invoices are due and payable within the time period noted on the invoice, or if not noted, then within 30 days, measured from the date of the invoice, subject to continuing credit approval by hE; such approval may be revoked without advanced notice by hE. If Buyer does not pay timely all money due to hE, Buyer shall pay interest to hE on overdue amounts at a rate of one and one-half per cent (1ó%) of the unpaid balance monthly, commencing from the payment due date of the invoice. Late penalties will be recalculated every 30 days thereafter, based on Buyer’s current outstanding balance. In addition, hE, without waiving any other rights or remedies to which it may be entitled, shall have the right to suspend or terminate any or all Services and refuse additional orders for Products from Buyer until hE's receipt of all overdue amounts. hE shall have no liability to Buyer for any such suspension or termination of services or for its refusal of additional orders. 

 

8. ERRORS.Any typographical, clerical or other accidental errors or omissions in any sales literature, quotation, price list, Acknowledgement, invoice or other document or information issued by hE shall be subject to correction without any liability on the part of the hE and hE reserves the right to cancel Contracts arising from such errors. Buyer agrees that all invoices shall be deemed accurate unless Buyer advises hE in writing of a material error within fourteen (14) days of the date of such invoice. In the event that Buyer advises hE of a material error, (i) payment of any amounts corrected or modified by hE in writing shall be due within fourteen (14) days of such correction, and (ii) all other amounts shall be paid by Buyer by the invoice due date. In the event Buyer withholds payment of any invoiced amounts upon an assertion by Buyer that such amounts are erroneous, and hE subsequently concludes that such invoiced amounts are accurate, Buyer shall pay interest on such amounts as described above from the due date for such amounts until hE's receipt of those amounts. In no case shall Buyer be entitled to offset, defer or deduct any invoiced amounts that hE determines are not erroneous following the notification process set forth above.

 

9. ASSIGNMENT. Buyer may not assign rights or delegate duties under this Contract including any assignment by Buyer of its Order to a third-party financing company without first obtaining written consent from hE, which shall not be withheld unreasonably. In no case shall any such approval excuse Buyer from its obligations hereunder.

 

10. PAYMENT. Payment for Products must be made by cheque, wire transfer or other prearranged payment method as agreed to in the Acknowledgment; credit cards will not be accepted at any time. Orders for third party Goods are: i) subject to availability and are cancellable by hE; and ii) at the sole discretion of hE, both noncancellable and non-returnable (“NC&R”) by Buyer or subject to a 20% restocking fee.

 

11. DELIVERY. hE shall deliver Goods and Software EXW (ex works Incoterms 2010), hE's plant (“Delivery”). Title, for the purpose of full risk of loss, damage, and carrier delay pass to Buyer upon Delivery. If hE arranges transport or supervises loading of Goods at Buyer’s request, it shall be a courtesy that shall not act to modify or waive the EXW term of Delivery.

 

12. TITLE. Notwithstanding Delivery of the Product or any other provision of these terms, title to Products (except title to Software which remains with the applicable licensors) shall not pass to Buyer until hE has received payment in full for the invoiced amount for the Product and payment of all other monies then due or owing to hE.

 

13. FORCE MAJEURE. hE shall substantially meet the Delivery dates in the Acknowledgement. hE shall not be liable for any nonperformance by circumstances beyond its reasonable control such as, loss, damage, or delay due to war, acts of terrorism, riots, civil commotions, natural physical disaster, strikes or other labor difficulty, action by governmental or public authority (a “Force Majeure”), acts of the Buyer, transportation delays, or other such causes. During the period of a Force Majeure, hE’s performance shall be excused for a commercially reasonable time that is at least the length of time lost due to such delay.

 

14. CANCELLATION; TERMINATION. Buyer may only cancel this Contract if hE consents in writing; hE may place conditions on consent, including a requirement that Buyer pay a restocking fee of twenty-five per cent (20%) of the Prices for NC&R Goods. For custom Goods, Software and Services, if hE permits cancellation of a Contract, hE may require Buyer to pay: (a) the Prices of Product delivered; (b) material and labor costs incurred; (c) engineering services; and (d) any other related costs and expenses, including without limit any that will arise from hE’s cancellation of a contract with hE’s suppliers. hE may terminate this Contract if Buyer breaches any material term, including without limit Buyer’s payment obligations, and fails to cure the breach within seven (7) calendar days of receipt of hE’s written notice of the breach. Obligations for payment, proprietary rights and confidentiality shall survive cancellation or termination of this Contract.

 

15. ACCEPTANCE OF GOODS AND SOFTWARE. hE’s representation that the Goods and Software meet all requirements and specifications at Delivery shall be deemed Buyer’s irrevocable acceptance of the Goods and Software (“Acceptance”). After Acceptance, defects in Goods and Software, if any, shall be handled exclusively as provided in the Warranty.

 

16. RETURNS AND EXCHANGES. hE’s return policy can be found at www.hayneselevators/returnspolicy and Buyer agrees to those terms. Before returning or exchanging a Good, including Goods under Warranty, Buyer must contact hE directly to obtain an authorization for the return. Buyer must return Products to hE in their original or equivalent packaging, and Buyer is responsible for risk of loss, as well as shipping and handling fees. Additional fees, including up to a 25% restocking fee, may apply. If Buyer fails to follow the return or exchange instructions provided by hE, hE will not be responsible for any loss, damage, or modification of a Good, or processing of a Good for disposal or resale. Credit for partial returns may be less than invoice or individual component prices due to bundled or promotional pricing associated with Buyer’s original purchase.

 

17. SOFTWARE LICENSE. If hE provides restricted Software with the Goods, that restricted Software is proprietary to hE. hE grants Buyer a nonexclusive, perpetual license to use the Software only on and in conjunction with the Goods. Buyer agrees that title remains with hE and Buyer shall not disassemble, decode, or translate the software, or copy or modify the Software except for archival or back-up purposes as necessary for use on and with the Goods. Buyer will maintain all proprietary marks on Software provided by hE. Buyer may transfer this license if transferring the Goods also and if the transferee agrees to comply with the restrictions of this license. Upon such transfer, Buyer’s license terminates and Buyer shall destroy all copies of the Software and related documentation in Buyer’s possession.

 

18. SERVICE AGREEMENTS. hE may provide Services, Software or other deliverables to Buyer in accordance with one or more Service Agreements. "Service Agreements" are service contracts, including Statements of Work, and any other such mutually agreed upon documents. Each Service Agreement will be interpreted as a single contract, independent of any other Service Agreement or contract.

 

19. WARRANTY. hE warrants that the Goods and Software, at Delivery and for one year thereafter (“Warranty Period”), will conform to published specifications and be free from defects, unless another Warranty Period is affirmed within the Acknowledgement. Buyer shall report any claimed defect in writing to hE promptly upon discovery and within the Warranty Period. hE shall elect either to repair or replace nonconforming Good and/or Software (“Remedy”). This warranty does not extend to: (a) Goods repaired or modified in any manner by persons other than hE or hE's authorized Affiliate; and (b) Goods that are defective due either to excessive wear and tear, the Buyer's failure to properly store, install, operate or maintain the Goods or use of the Good and Software within environments that are beyond the specifications for the Goods and Software. Any repair or replacement of defective Goods and Software within the Warranty Period shall not extend the original Warranty Period. The Remedy is hE's sole obligation, and Buyer's exclusive recourse, for all claims of defects with respect to the Goods and Software. If the Remedy is adjudicated insufficient however, hE shall refund the Price paid without further liability to Buyer relating to the subject Goods and Software. Buyer shall pay costs of returning Goods under a warranty claim, and hE shall pay the costs of sending Goods to Buyer after the Remedy is performed.

 

hE MAKES NO OTHER WARRANTY OF ANY KIND WITH RESPECT TO THE GOODS, SOFTWARE OR SERVICES. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ANDNONINFRINGEMENT ARE HEREBY DISCLAIMED. 20. LIMITATIONS OF LIABILITY. IN NO EVENT SHALL hE OR ITS AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, AGGRAVATED OR INCIDENTAL DAMAGES, INCLUDING ANY CLAIM FOR INFRINGEMENT, LOST DATA OR LOSS OF PROFITS, ARISING FROM OR RELATING TO THIS CONTRACT, EVEN IF hE OR ITS AFFILIATES HAVE BEEN ADVISED BY THE BUYER OF THE POSSIBILITY OF SUCH DAMAGES. hE’S AND ITS AFFILIATES’ TOTAL CUMULATIVE AND AGGREGATE LIABILITY IN CONNECTION WITH THIS CONTRACT AND THE PRODUCT, WHETHER SUCH LIABILITY IS BASED UPON BREACH OF CONTRACT (INCLUDING FUNDAMENTAL BREACH), EQUITY, TORT, NEGLIGENCE, STRICT LIABILITY, RESTITUTION OR BASED UPON ANY THEORY OF LIABILITY HOWSOEVER ARISING, SHALL IN NO EVENT EXCEED THE SALES PRICE PAID FOR THE PRODUCT. BUYER ACKNOWLEDGES THAT THE PRICE PAID BY IT PURSUANT TO THIS CONTRACT AND IN RESPECT OF THE PRODUCT REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS CONTRACT AND THAT hE WOULD NOT ENTER INTO THIS CONTRACT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.

 

21. INDEMNIFICATION. Buyer covenants and agrees to indemnify, defend and hold harmless hE and its Affiliates, subcontractors, vendors, officers, directors, employees, agents, consultants and representatives (collectively, the “Indemnitees”) from and against any and all claims, demands, suits, liabilities, injuries (personal or bodily), causes of action, proceedings, losses, expenses, damages or penalties, including without limitation court costs and reasonable attorneys’ fees (collectively, “Claims”), arising or resulting from its use of the Product. If hE or any other Indemnitee seeks indemnification from Buyer pursuant to this section, hE shall give Buyer prompt notice of such Claim. Buyer shall defend the Indemnitees from any such Claim at Buyer’s sole cost and expense using counsel reasonably acceptable to the Indemnitees and shall keep the Indemnitees informed as to the progress of the defense of any such claim or suit. The Indemnitees shall have the right to participate, at their own expense, with respect to any third party claim, demand, action or proceeding. The Indemnitees shall reasonably cooperate with the Buyer in such defense at Buyer’s cost and expense. Buyer shall have the right to control the defense and disposition; provided, however, that, if Buyer assumes control of such defense and the Indemnitees reasonably conclude, based on advice from their counsel, that Buyer and the Indemnitees have conflicting interests with respect to such Claim, Buyer shall be responsible for the reasonable fees and expenses of counsel to the Indemnitees solely in connection therewith, except that in no event shall Buyer be responsible for the fees and expenses of more than one counsel for all Indemnitees. Buyer shall not agree to any settlement of such action, suit, proceeding or claim that does not include a complete and unconditional release of the Indemnitees from all liability with respect thereto or that imposes any liability or obligation on the Indemnitees, without the prior written consent of the Indemnitees.

 

22. PROPRIETARY RIGHTS. Sale of Product to Buyer does not convey any right, title, license or interest, implied or otherwise, in the intellectual property (including all copyrights, patents, trademarks and trade secrets) embodied in the Goods and Software, as well as the methods by which the Services are performed and the processes that make up the Services, and shall belong solely and exclusively to hE or the applicable Affiliate, except as expressly granted in the Contract. The Goods and Software are protected pursuant to copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Buyer may not modify, remove, delete, augment, add to, publish, transmit, adapt, translate, transfer or sell, create derivative works from, or in any way exploit any of the Goods and Software, in whole or in part.

 

23. CONFIDENTIALITY. All details of the Contract, all technical and commercial information hE discloses to Buyer excluding public domain information, shall be considered as confidential, and shall not be imparted to any third party in any form whatsoever without prior written authority of hE, expecting that any necessary information required by a third party for execution of the Contract may be imparted. Whilst performing duties associated with the Contract, Buyer may become privileged to certain information that they would not have been exposed to in normal circumstances. Such information shall remain confidential and shall not be divulged in any way, means or form without the prior written consent of hE.

 

24. COMPLIANCE WITH LAWS AND REGULATIONS. Buyer is responsible for complying with any and all applicable federal, provincial/state and local laws, codes, ordinances, rules, regulations, and administrative orders, including, without limitation, export/import and all product safety laws, rules and regulations.

 

25. HEADINGS. Headings used herein are for the convenience of reference only and shall not control the construction or interpretation of any of the provisions of the Contract.

 

26. DEFINITIONS. Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to them in the Order Acknowledgment and Service Agreement.

 

27. APPLICABLE LAW. The Contract resulting from acceptance of the Buyer’s purchase Order by hE’s issuance of an Acknowledgment shall be governed and construed in accordance with the laws of the Province of Alberta. Haynes Elevators. Attention: VP Operations 4, 4639 6 street NE, Calgary, AB T3E 2Z6

 

Commercial Terms and Conditions of Sale Revision Date December 11, 2017

 

END OF AGREEMENT