Solex Purchasing Terms and Conditions
STANDARD TERMS AND CONDITIONS OF PURCHASE OF EQUIPMENT
Last Updated: April. 17, 2017
1. Purchase Documents: The attached purchase order (“PO”) and all attachments, including these Terms and Conditions (“Terms”, and together with the PO, the “Agreement”) for the purchase of certain goods (“Goods”), that may include equipment (“Equipment”) and/or works (“Works”) as indicated in the specification which is attached to and forms part of the PO (the “Specification”), are the complete agreement between Solex Thermal Science Inc.(“Solex”) and the entity selling the Goods as set forth on the PO (the “Vendor”) and constitute the full and complete understanding of the parties and shall supersede any other prior Agreement. No other document or agreement, written or verbal, including the Vendor’s terms and conditions, purporting to modify or vary the terms of this Agreement is binding unless made hereafter in writing and signed by both parties. A PO is not binding unless accepted in writing by Solex. In the event of conflict between these Terms and the PO, the PO shall govern and control.
2. Scope of Supply and Services: Vendor shall supply the Equipment designed for the purpose specified by Solex and carry out the Works in accordance with this Agreement. In consideration of Vendor supplying the Equipment and performing the Works, Vendor will pay Solex the price listed in the PO (the “Contract Price”) in accordance with this Agreement.
3. Price and Payment: The Contract Price and currency of all payments shall be agreed to in the PO. The Contract Price is a fixed price and is the total price payable for the Equipment and Works (including all import duties, taxes or charges that may be levied by any local authority), including VAT if applicable. The Contract Price shall be payable in accordance with the payment schedule set out in the PO. Vendor will not delay, suspend or postpone the Works or any date for shipment or the delivery date indicated in the PO (the “Delivery Date”) of the Equipment, and any of its obligations under this Agreement, should any payment be overdue. The Vendor shall send invoices in duplicate with a full set of the Bills of Lading (if applicable) to the address noted on the face of the PO. The Vendor shall show the order number and the items invoiced and state whether partial or complete order is covered. Escalation and any sales, use and excise taxes and duties shall be listed as separate items. If freight is not included in the Contract Price, and is prepaid by the Vendor, it must be invoiced separately with receipted copies of freight bill attached. Unit prices must agree with the prices shown on the PO. Brokerage, duty, applicable sales taxes, authorized special charges for packing, boxing, crating or services and freight charges, must be shown as separate items on Vendor’s invoice.
4. Change Orders/Cancellation: Solex may at any time make a written request for a change to any part of the Equipment or Works, including a request for additional work or a reduction in the scope of the Works. In the event any requested change affects either the Contract Price or the Delivery Date, Vendor shall provide Solex with a statement in writing showing the extent and cost of the work involved and the effect upon the Contract Price and Delivery Date. Vendor shall put no change into effect unless written instructions are given to Solex and agreed to in writing by Solex. If Solex does not accept any proposal from Vendor after negotiation, Solex will be entitled to cancel the order without liability to Vendor. Solex may at any time, by written notice to the Vendor, cancel any part of this Order not shipped prior to cancellation. Liability of Solex shall be limited to costs incurred by Vendor solely in connection with fulfillment of the PO prior to receipt of cancellation notice.
5. Shipment and Delivery: Vendor shall deliver the Equipment as per the Incoterms delivery protocol listed in the PO, or if not stated, within a commercially reasonable timeframe. Partial shipment of the Equipment is not permitted. The time and date of delivery of the Equipment is determined by the relevant Incoterms protocol. Vendor shall notify Solex of date of intended shipment of Equipment at least five (5) days in advance. Any costs associated with any delay attributed in whole or part to Vendor shall be at Vendor’s sole risk and expense, and Vendor shall promptly arrange for shipment when requested by Solex. Payment schedule shall be extended by the length of delay of delivery. All cases, packages, bundles, etc. shall be marked with the Order Number. The Vendor shall enclose with each box, package or container a shipping notice showing contents, together with the name of the Vendor and the Order Number. No charge will be allowed for boxing, packing, crating or for cases, packages, pallets or boxes, unless so specified in the Order.
6. Extensions of Time: Vendor shall notify Solex immediately upon becoming aware of any event which may prevent or delay delivery of Equipment or completion of the Works by the due dates. Unless otherwise agreed to in writing by the Parties, an extension of time will only be granted to the extent that Vendor proves that delivery of Equipment or completion of the Works is delayed by any act, default, omission and/or negligence of Solex and that Vendor has used its best endeavours to mitigate or avoid the delay. Any extension of time negotiated between the Parties is not binding until agreed to in writing by both parties.
7. Warranties and Guarantees: The Works shall be performed in a good and workmanlike manner in accordance with the Specification and the Agreement. All materials used in the manufacture of the Equipment shall be new and in conformity with, and the performance of the Equipment will meet, the Specification. All Equipment shall, upon delivery, be subject to no lien or other rights in favour of any third party. The duration of warranty for the Equipment (the “Warranty Period”) will extend for two (2) years from delivery unless otherwise indicated in the PO. If Solex determines that the Vendor has failed to conform to the warranties set out above in respect of goods or services supplied, Solex, in its absolute discretion, may elect to:(i) reject the non-conforming goods or services, withhold payment not yet made in respect thereof, and receive a full refund for any payments made for such goods or services; (ii) require the Vendor, at Solex’s option, to repair or replace the goods or services in question at the Vendor’s sole risk and expense, in accordance with the terms and conditions of this Order; or (iii) retain the non-conforming goods or accept the non-conforming services and claim for any loss or damage which the Solex suffers in connection with the Vendor’s breach of warranty. The Warranty Period shall be renewed for the original warranty duration indicated in the PO in respect of any part of the Equipment that is remedied under this clause. No payment or acceptance by Solex shall constitute a waiver of the foregoing warranties, nor shall anything contained herein be construed to limit or exclude any other warranty or condition implied by law to the benefit of the Solex.
8. Force Majeure: Force Majeure is an event or circumstance beyond the control of a party, which prevents or impedes the due performance of this Agreement. Force Majeure includes but is not specifically limited to, the occurrence of events of the following type: War or hostilities (whether war is declared or not); Revolution, insurrection, terrorism, riot, civil commotion; Earthquake, flood, fire or other natural physical disaster; Extreme weather conditions, high water level; International embargoes, sanctions or boycotts; Industrial disputes. A party affected by Force Majeure shall immediately notify the other party of the circumstances constituting the Force Majeure and shall specify the obligations, which are delayed or prevented. The party giving the notice shall be excused from performance for so long as the Force Majeure circumstances continue and that party is unable to perform. Any event, deliverable or deadline will be extended by an amount equal to the duration of the Force Majeure event. Vendor shall be responsible for any additional costs which Solex demonstrates have been caused by the delay resulting from the event of Force Majeure up to six (6) months from the time any notice of Force Majeure is given under this section.
9. Termination: If Vendor breaches any term of this Order, becomes insolvent, enters into voluntary or involuntary bankruptcy or receivership proceedings or makes an assignment for the benefit of its creditors, Solex shall have the right, without limiting any other rights or remedies which Solex may have hereunder or by operation of law to terminate this Order by written notice to the Vendor upon which Solex shall be relieved of all obligations hereunder. The Vendor shall be liable to Solex for all costs in completing or procuring the completion of the object of this Order in addition to any other remedy available by law.
10. Indemnity & Liability: Vendor shall indemnify Solex against all losses and claims for death or injury to any person or damage to any property, and against all resulting liabilities, costs, proceedings and expenses, arising out of or in connection with any act or omission caused by them or any of its employees or sub-contractors or suppliers during the performance of the Works and supply of Goods.
11. Risk & Title: Risk and title in each item of Equipment shall pass to Solex upon delivery as per the Incoterms listed in the PO.
12. Intellectual Property: Solex shall have an irrevocable royalty-free licence to use all equipment, designs, documents and data for the sole purpose of the operation and maintenance of the Equipment. Vendor warrants that none of the Equipment to be supplied under this Agreement violates any patent or other intellectual property rights of any third party, however, if the Equipment or the use thereof is covered by an existing patent or patent application or other intellectual property rights, that it has full and valid license under such rights to produce, sell, and use the Equipment and to grant user rights to its clients to operate the Equipment for its intended purpose without restrictions. The Contract Price includes full user rights hereby granted to Solex to use the Equipment for its intended purpose without restrictions. Vendor shall indemnify Solex against any claims, damages, costs and expenses arising out of any infringement or alleged infringement of any patent or other rights of third parties in connection with the Equipment or the Works, including any components used in the Works.
13. Confidentiality and Publicity: All designs, drawings and information made available to Solex by Vendor or to Vendor by Solex shall be treated as confidential and shall only be used by the receiving Party for the purposes of supplying the Equipment or completing the Works or for the operation and maintenance of the Equipment and they shall not be communicated to any third party except insofar as may be necessary for the proper execution of the Works. Each Party shall not make public or issue any press release or information relating to this Agreement without the prior written approval of the other Party, which shall not be unreasonably withheld. A draft of every proposed press release or publicity material shall be submitted to the other Party when seeking approval. This section and any confidentiality provisions shall survive the expiration or termination of this Agreement.
14. Assignment and Sub-contracting: Vendor shall not assign any of its interests under this Agreement without the prior written consent of Solex, which may be withheld without any reason being given.
15. Anti-Corruption: Solex and Vendor undertake that, at the date of the entering into force of the Agreement, itself, its directors, officers or employees have not offered, promised, given, authorized, solicited or accepted any undue pecuniary or other advantage of any kind (or implied that they will or might do any such thing at any time in the future) in any way connected with the Agreement and that it has taken reasonable measures to prevent subcontractors, agents or any other third parties, subject to its control or determining influence, from doing so.
16. Governing Law and Disputes: This Agreement is governed in all respects by Alberta law. Any dispute which cannot be resolved amicably shall be referred to and finally resolved by arbitration under the current version of the ICC Rules of Arbitration, which rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be three (3). Arbitration shall be conducted in Calgary, Canada.
17. Notices: Any notice under this Agreement shall be delivered by hand, facsimile, e-mail or recorded delivery airmail to the other party. The address of each party for service of notices is shown in the PO.
18. General: No waiver by a Party of any breach of contract by the other Party shall be considered as a waiver of any subsequent breach. If any provision of these terms and conditions becomes void, voidable or unenforceable, it shall not affect the validity of the other provisions. The parties shall replace the part affected with one expressing similar legal and economic intent, insofar as possible. Time is of the essence with respect to all obligations under this Agreement.
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