Standard Terms and Conditions

These Standard Terms and Conditions (the “Terms”) are applicable to each purchase order or statement of work submitted by the Buyer (as defined below) (a “PO”), sales of products and goods (the “Goods”) or service of said Goods by Commercial Burner Maintenance Limited (“CBM”), as further set forth on each purchase order provided by the applicable customer (“Buyer”) and accepted by CBM (each PO, together with these Terms, the “Agreement”).

  1. The sale of Goods or provision of Services is expressly conditioned on the Buyer’s acceptance of these Terms. CBM’s acceptance of Buyer’s PO is expressly conditioned on Buyer’s consent to these Terms. The terms of the Agreement will constitute the entire agreement between the parties with respect to the Goods and shall supersede all prior proposals, negotiations and communications, oral or written, between the parties regarding the same.

2. PURCHASE ORDERS

  1. Purchase Details. The deliverables will be prepared as per specifications, quantities, and prices as listed in the quote and PO. All parts to be procured by CBM through authorized third-party suppliers shall be set forth in each PO. CBM shall not use any alternative components without the prior written approval and authorization of the Buyer. In the event sufficient parts are unavailable from authorized third-party suppliers; such parts shall be provided by an alternative third-party supplier mutually agreed upon by the parties. In the parties fail to agree on an alternative third-party supplier, the Buyer shall purchase the unavailable parts and deliver same to CBM.
  2. Cancellation. Upon acceptance of a PO, the Buyer shall be obligated to purchase from CBM such quantities of the Goods specified in such PO. All parts as listed in the PO are non-cancellable and Non-Returnable (NCNR) components. If the PO is cancelled or modified by the Buyer, CBM shall not be obligated to provide a refund to the Buyer for parts procured as of the date notice of cancellation or modification is received. In the event the Buyer cancels a PO for which third-party parts have been ordered and delivered, CBM may ship all procured third-party parts, along with the invoices associated therewith, to the Buyer and the Buyer shall remit payment to CBM for such parts.
  3. Modification. The Buyer may request a change in the quantity if Goods to be provided by CBM by submitting a request to CBM in writing. CBM shall not proceed with any change to its obligations under a PO unless the change request is documented and signed by both parties. Upon receipt of a change request, CBM shall provide the Buyer within 10 business days a detailed proposal to the Buyer outlining any increase or decrease, if any, to the price for the Goods, the effect on the delivery date of the Goods as a result of such change request, and any other information necessary for the parties to consider the change request. Following receipt of the proposal by the Buyer, the parties shall meet and, acting reasonably, negotiate in good faith a mutually acceptable amended PO.

3. SHIPMENT, DELIVERY AND INSPECTION

  1. Shipment. CBM shall select the method of shipment of and the carrier for the Goods. CBM shipment will constitute a separate sale and the Buyer shall pay for the cost of shipping the Goods, in accordance with the payment terms specified in this Agreement, whether such shipment is in whole or partial fulfillment of one or more POs.
  2. Late Delivery. Any time quoted for delivery is an estimate only; provided, however, CBM shall use commercially reasonable efforts to deliver all Goods referred in a certain PO within a reasonable time consistent with that outlined in the PO.
  3. Transfer of Title and Risk of Loss.
    (a) Title to Goods shipped under any PO passes to the Buyer upon the Buyer’s payment in full for the Goods.
    (b) Risk of loss or damage passes to Buyer passes upon delivery to the carrier.

4. PRICE AND PAYMENT

  1. Price. The Buyer shall purchase the Goods from CBM at the prices and on the terms set forth in the PO (the “Prices”).
  2. Shipping Charges and Taxes. All Prices are exclusive of, and the Buyer is solely responsible for, and shall pay all taxes, levies, imposts, shipping, duties deductions, charges, fees or withholdings imposed, levied, withheld or assessed by any governmental authority, with respect to, or measured by, the manufacture, sale, shipment, use or price of the Goods (including interest and penalties thereon) including any import charges.
  3. Payment Terms. The Buyer shall pay to CBM all invoiced amounts within prescribed time as laid out in the PO.
  4. Late Payments. The Buyer shall pay interest on all late payments calculated daily and compounded monthly, at the lesser of the rate of interest prescribed by the Bank of Canada or the highest rate permissible under applicable law after the period of 45 days has elapsed from the date of receipt of a notice for payment sent by CBM to the Buyer. The Buyer also shall reimburse CBM for all reasonable costs incurred by CBM in collecting any late payments, including attorneys’ fees and court costs. In addition to all other remedies available under this Agreement or at law (which CBM does not waive by the exercise of any rights under this Agreement), if Buyer fails to pay any undisputed amounts when due under this Agreement, CBM may suspend the delivery of any Goods.
  5. Non-Payment. If the Buyer fails to pay when and as required to be paid herein, any amount due to CBM within the prescribed time as determined in sole discretion of CBM, which shall not be less than 30 days from the date of receipt of an invoice, CBM shall have the unqualified right to sell all or any third-party parts ordered by the Buyer but not yet paid for, to set-off any costs or fees incurred by CBM up to date.

5. TERMINATION

  1. Termination. In addition to any remedies that may be provided under this Agreement, CBM may terminate this Agreement with immediate effect upon written notice to the Buyer, if the Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. Where this Agreement is terminated prior to completion of the PO, but where the PO have been partially fulfilled, CBM is entitled to payment for all work performed and third-party parts ordered up to the date of termination.
  2. Effect of Expiration or Termination. Any termination under this Agreement automatically operates as a cancellation of any deliveries of Goods to the Buyer that are scheduled to be made subsequent to the effective date of termination, whether or not any orders for such Goods had been accepted by CBM. With respect to any Goods that are still in transit upon termination of this Agreement, CBM, in its sole discretion, may require that all sales and deliveries of such Goods be made on either a wire-transfer or certified-cheque basis immediately upon termination. Termination of this Agreement will cease all production activities relating to any outstanding POs and CBM shall not be liable for any delays as it relates to such existing POs.

6. LIMITED WARRANTY

  1. Warranty Limitations. CBM warrants that for a period of one year from the date of shipment of the Goods, such Goods are fit and safe for use, under normal operating conditions, consistent with and will materially conform to the specifications in the PO, save and except for those third-party components which shall be subject to any warranty provided by the third-party manufacturer of such components. CBM does not provide any warranty for Goods that (a) have been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal environmental conditions or use contrary to any instructions issued by CBM; or (b) have been reconstructed, repaired, modified or altered by anyone other than CBM. CBM also does not provide any warranty for any labour or travel expenses directly or indirectly related to the replacement or repair of the Goods.
  2. DISCLAIMER OF OTHER WARRANTIES; NON-RELIANCE. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 6(1), (A) NEITHER CBM NOR ANY PERSON ON CBM’S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, EITHER ORAL OR WRITTEN, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED; AND (B) THE BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY CBM, OR ANY OTHER PERSON ON CBM’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION.

7. LIMITATION OF LIABILITY

  1. NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES. IN NO EVENT SHALL CBM OR ITS REPRESENTATIVES BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT THE BUYER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
  2. MAXIMUM LIABILITY FOR DAMAGES. IN NO EVENT SHALL CBM’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO CBM PURSUANT TO THE APPLICABLE PO GIVING RISE TO THE CLAIM.
  3. ASSUMPTION OF RISK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE BUYER ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY GOODS IN THE PRACTICE OF ANY PROCESS, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE RELATED TO THE USE OF SUCH GOODS. CBM ASSUMES NO RESPONSIBILITY FOR ANY DAMAGES OR FAILURES THAT MAY OCCUR AS A RESULT OF THE BUYERS OPERATION OR MAINTENANCE OF THE GOODS.

8. CONFIDENTIALITY

The parties hereto agree that each party shall treat all information provided by each party to the other party regarding its business and operations as confidential (“Confidential Information”). All Confidential Information provided by a party hereto shall be used by the other party hereto solely for the purpose of rendering or receiving services pursuant to this Agreement and, except as may be required in carrying out this Agreement, shall not be disclosed to any third party. Neither party will use or disclose Confidential Information for purposes other than the activities contemplated by this Agreement or except as required by law, court process or pursuant to the lawful requirement of a governmental agency, or if the party is advised by counsel that it may incur liability for failure to make a disclosure, or except at the request or with the written consent of the other party. This Section 8 does not apply to information that is: (a) in the public domain; (b) known to the Buyer or CBM at the time of disclosure; or (c) rightfully obtained by the Buyer or CBM on a non-confidential basis from a third party.

9. OWNERSHIP

The Buyer acknowledges and agrees that:
(a) any and all of CBM’s rights associated with any intellectual property contained within or provided by CBM in connection with the delivery of the Goods, including, but not limited to, any software, technical documents, or electrical schematics (the “CBM Intellectual Property Rights”), are the sole and exclusive property of CBM or its licensors;
(b) the Buyer shall not acquire any ownership interest in any of CBM’s Intellectual Property Rights under this Agreement;
(c) any goodwill derived from the use by Buyer of CBM’s Intellectual Property Rights enures to the benefit of CBM or its licensors, as the case may be;
(d) if Buyer acquires any intellectual property rights, rights in or relating to any Goods (including any rights in any trademarks, derivative works, or patent improvements relating thereto) by operation of law, or otherwise, such rights are deemed and are hereby irrevocably assigned to CBM or its licensors, as the case may be, without further action by either of the Parties; and
(e) Buyer shall use CBM’s Intellectual Property Rights solely for purposes of using the Goods under this Agreement and only in accordance with this Agreement and the instructions of CBM.

10. MISCELLANEOUS

  1. Relationship of the Parties. The relationship between CBM and the Buyer is solely that of vendor and vendee, and are independent contracting parties.
  2. General Compliance with Laws. Buyer shall at all times comply with all laws applicable to this Agreement, Buyer’s performance of its obligations hereunder, and Buyer’s use of the Goods. Without limiting the generality of the foregoing, Buyer shall (a) at its own expense, maintain all certifications, credentials, licences, and permits necessary to conduct its business relating to the purchase or use of the Goods and (b) not engage in any activity or transaction involving the Goods, by way of shipment, use, or otherwise, that violates any law.
  3. Survival; Statute of Limitations. Any provision that, in order to give proper effect to its intent, should survive such expiration or termination, including, without limitation, Section 3, Section 4, Section 5.2, Section 6, Section 7 and Section 8, will survive the expiration or earlier termination of this Agreement.
  4. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability does not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the parties shall negotiate in good faith to modify this Agreement to effect the original intent of the parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
  5. Waiver. No waiver under this Agreement is effective unless it is in writing and signed by an authorized representative of CBM. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion. None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege or condition arising from this Agreement: (a) any failure or delay in exercising any right, remedy, power or privilege or in enforcing any condition under this Agreement; or (b) any act, omission or course of dealing between the parties.
  6. Assignment. The Buyer may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of CBM. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves the assigning or delegating party of any of its obligations under this Agreement.
  7. Force Majeure. CBM will not be liable for any failures or delays caused by strikes, differences with workers, or any causes beyond the reasonable control of CBM, including but not limited to fires, floods, accidents, action of any governmental authority, war, insurrection or riots, or shortages of labor, energy, raw materials, production facilities, transportation, or pandemic. Where delays or failures are caused by labor difficulties, CBM will not be obligated to seek or obtain any settlement that, in CBM’s sole judgment, is not in CBM’s best interest.
  8. Successors and Assigns. This Agreement is binding on and inures to the benefit of the parties and their respective permitted successors and permitted assigns.
  9. Governing Law. These Terms are made under and will be construed in accordance with the laws of the Province of Ontario. Any suit to enforce any provision of this Agreement, or arising out of or based upon this Agreement, shall be brought exclusively in the courts of the Province of Ontario.