T&T Power Group
Terms and Conditions of Sale
1. AGREEMENT. These terms and conditions of sale apply to all goods, services, or combination of goods and services (the “Goods and Services” or individually “Goods” or “Services”), sold, furnished (or provided by T&T Power Group (the “Seller”) to (the “Purchaser”) pursuant to certain written quotes provided by the Seller to the Purchaser from time to time (each a “Quote”). These Terms and Conditions and each applicable Quote accepted by the Purchaser in writing, set out the exclusive terms and conditions applicable to the Goods and Services provided by the Seller to the Purchaser pursuant to each Quote, and any conflicting or additional terms are expressly rejected and of no force or effect.
2. PRICE; PAYMENT. The price to be paid by the Purchaser to the Seller for Goods and Services is as stated in the applicable Quote (the “Price”). Unless expressly stated, prices do not include taxes, freight or insurance, such amounts to be paid by the Purchaser in addition to the Price. Payment terms are as set out on the Quote, or if not set out on the Quote, thirty (30) days net. The Price shall be paid by the Purchaser without deduction, deferment, set-off, lien or counterclaim of any nature. All amounts payable by the Purchaser hereunder and not paid within thirty (30) days after the date such amounts are due and payable shall bear interest at the lesser of 1.5 percent (1.5%) per month or the maximum rate of interest allowed by law. The Price set out in a Quote is firm for thirty (30) days from the date of the Quote, after which the Price is subject to change at the Seller’s sole discretion. If the Purchaser requests changes to the Goods and Services, scope or schedule, or if the Purchaser’s actions or failure to act delays production or shipment of Goods and Services, the Purchase Price and any delivery dates shall be adjusted at Seller’s sole discretion to reflect the changes caused thereby.
3. SERVICE RATES; CANCELLATION AND STANDBY CHARGES. Services requested or required outside regular business hours, including evenings, weekends and statutory holidays, will be billed at Seller’s applicable after-hours or non-standard regional service rates. Scheduled maintenance, testing or service work may be subject to cancellation or rescheduling charges if less than forty-eight (48) hours’ notice is provided. If Seller personnel are unable to perform scheduled work due to unavailable access, inaccurate keys or codes, absence of an authorized site contact, unsafe conditions or Customer delay, Seller may bill standby charges, including labour, travel time and associated costs, and any return visit will be at the Purchaser’s expense.
4. DELIVERY. Delivery is EXW, as defined in the Incoterms® 2020 published by the International Chamber of Commerce, at place of shipment. The Purchaser assumes all risk of loss and expense following delivery of the Goods by the Seller to the first carrier. Dates for the delivery or shipment of the Goods set out in the Quote are approximate only and are subject to change by the Seller. The Seller is not liable in any way for delays in performance or non-performance of Services or delays in the delivery of Goods due to causes, contingencies or events beyond its reasonable control, including any labor difficulties, shortages, strikes or stoppages of any sort, failure or delay in obtaining materials from ordinary sources, fires, floods, storms, insurrection, riots, wars, breakdowns of essential machinery and equipment, embargoes, tariffs, delays in transportation, accidents, epidemic or pandemic, or other acts of force majeure. If such a delay occurs, the Seller may, at its option, extend the performance or delivery date for a period of time equal to the delay or terminate acceptance of the Quote. If the Purchaser requests to defer delivery dates by a written request adequate to support revenue recognition by the Seller, or if the Purchaser fails to promptly accept the Goods tendered for delivery, or shipment of the Goods is otherwise delayed by causes beyond the Seller’s reasonable control, the following conditions shall apply (i) payments due upon shipment (or “delivery”) shall be invoiced, due and payable upon “readiness to ship;” (ii) all financial securities required of the Seller shall be released based upon “readiness to ship”, (iii) the Purchaser shall pay the Seller reasonable storage and handling charges incurred by the Seller on the Purchaser’s behalf; (iv) risk of loss shall transfer to the Purchaser upon “readiness to ship,” (v) the Purchaser shall be responsible for insuring the Goods, and (vi) the Purchaser shall inspect at delivery and give notice as soon as practical of any loss, damage or shortage evident by visual inspection and quantity count.
5. SERVICE SCHEDULING; SYSTEM OUTAGE. Unless otherwise agreed in writing, Services, testing and maintenance will be performed during Seller’s regular business hours. Any performance dates are estimates only. The Purchaser acknowledges that generator systems or related equipment may be taken offline for several hours while Services, maintenance or testing are being performed.
6. WARRANTIES. The Seller hereby assigns to the Purchaser any rights it may have under any warranty extended by a third party covering the Goods or part thereof. Goods manufactured by others and resold by the Seller carry the original warranty but do not carry any additional warranty by the Seller unless stated specifically in writing or as set forth below.
7. THIRD-PARTY AND PRODUCT WARRANTY CONDITIONS. Any warranty coverage is conditional upon the Goods and Services being properly installed, maintained and operated in accordance with Seller and original equipment manufacturer instructions, manuals and applicable service logs. Commissioning documentation, where applicable, must be completed and on file with Seller. Goods manufactured by others remain subject to the applicable third-party or manufacturer warranty and do not carry any additional warranty by Seller unless expressly stated in writing.
(a) LIMITED WARRANTY. Seller warrants that all Services furnished to the Purchaser hereunder will be performed in a good and workmanlike manner (the “Warranty”). The Warranty expires ninety (90) days from the performance of the Services. The Purchaser shall rely exclusively on manufacturer warranties with respect to Goods provided, delivered or installed by Seller hereunder. The Purchaser acknowledges and agrees that the Seller makes no warranties or guarantees with respect to the Goods.
(b) SERVICE WARRANTY LIMITS. Any warranty for Services is limited to the re-performance of the applicable defective Services, or a credit or refund of the price paid to Seller for such defective Services, at Seller’s sole discretion. Service warranty coverage is not transferable and applies only to the Purchaser for whom Seller performed the Services.
(c) WARRANTY NOTICE AND REMEDY. The Purchaser must make a claim for any breach of the Warranty by written notice to the Seller within thirty (30) days of the discovery of the breach of Warranty. The Seller will, at its option and expense, repair or re-perform the Services. If the Seller is unable to re- perform the defective Services after a reasonable number of attempts, the Seller will refund the portion of the Purchase Price paid that is attributable to the Services that were defective. These remedies are the exclusive remedies for breach of Warranty. No expenses incurred by the Purchaser in replacing, repairing, re-performing or returning defective Goods or Services will be reimbursed by the Seller.
(d) EXCLUSIONS FROM WARRANTY. The Seller does not guarantee, assume any responsibility for, or make any representation or warranty either express or implied with respect to the Goods, the Services or the performance thereof. To the maximum extent permitted by applicable law the Purchaser waives the benefit of any implied or statutory representations or warranties. Without limiting the foregoing, the Seller makes no representations or warranties with respect to merchantability, fitness for purpose, profitability or expected savings. The Warranty is inapplicable to and excludes: (i) damage caused by accident or negligence, normal wear and tear, erosion, corrosion or by disasters such as fire, flood, wind and lightning; (ii) damage caused by the failure to follow all installation and operating instructions or manuals or to provide normal maintenance; (iii) damage caused by improper water treatment; (iv) damage caused by unauthorized or improper installation of attachments, repairs or modifications; or (v) any other abuse or misuse.
(e) ADDITIONAL WARRANTY EXCLUSIONS. Warranty coverage excludes normal wear and tear, routine tune-ups, periodic service, adjustments, consumables and wear components, including filters, fluids, grease, gauges, light bulbs, fuses, switches, spark plugs, exhaust components, gaskets, o-rings, sealing materials, electrochemical sensors, rubber components, batteries beyond the applicable battery warranty period and similar items. Warranty coverage also excludes damage, deficiency or failure resulting from neglect, unreasonable use, misuse, improper operation, improper storage, improper installation or handling, unauthorized service or repair, non-approved parts or procedures, lack of required maintenance, contaminated or insufficient fuel, coolant or glycol issues, fire, flood, wind, lightning, grid instability or other external causes.
8. SECURITY INTEREST. Until payment in full of the Price, the Purchaser grants to the Seller purchase money security interest in the Goods and any proceeds thereof (including insurance proceeds), to secure full payment of the Price. Until payment of the Price in full, the Purchaser will not encumber the Goods with any mortgage, lien, pledge or other attachment and will not remove the Goods from the province in which they were delivered to the Purchaser. In the event that applicable law requires the registration of any notice, financing statement or other document in any personal property registry or otherwise the Purchaser hereby consents to the registration of such notice, financing statement or other document without further notice to the Purchaser. The Purchaser acknowledges receipt of a true copy of these Terms and Conditions of Sale and waives, to the extent permitted by applicable law, all rights to receive copies of financing statements, financing change statements, verification statements or copies of other notices or filings made by the Seller at any time in connection with these Terms and Conditions.
9. CREDIT INVESTIGATION.
a) The Purchaser hereby consents to the Seller conducting a credit investigation of the Purchaser and to the Seller making inquiries with financial institutions or other persons in a business relationship with the Purchaser, and the Purchaser hereby authorizes and directs persons to answer the Seller’s inquiries.
b) If at any time the Purchaser is or has been in default under the terms of this or any other agreement with the Seller, or if the Seller acting reasonably and in good faith determines that the Purchaser’s financial position may impair the Purchaser’s ability to perform its obligations under these Terms and Conditions, the Seller may demand adequate assurance of the Purchaser’s financial position and ability to perform. Such demand of assurance my require full payment of all amounts due and owing by the Purchaser or may require partial or full advance of amounts coming due.
10. HAZARDOUS MATERIALS. Any hazardous materials encountered by the Seller at the site will be the responsibility of the Purchaser and may cause delays in performance of the Services or delivery of the Goods.
11. CUSTOMER SITE, ACCESS AND OPERATING OBLIGATIONS. The Purchaser shall ensure Seller is provided with accurate and current site contact, property management, access, keys, codes, permits, approvals and other information required to perform the Services. The Purchaser is responsible for ensuring sufficient and suitable fuel, coolant, ventilation, lighting, electrical infrastructure and safe working conditions are available for the Services, including load bank testing where applicable. Seller is not responsible for incomplete testing, test failure, delay or equipment issues caused by insufficient access, unsuitable site conditions, inadequate fuel quantity or quality, or Customer-provided information or approvals.
12. PREVENTATIVE MAINTENANCE SCOPE; DEFICIENCIES. Where Services consist of planned preventative maintenance or testing, the scope is limited to the maintenance and testing specifically set out in the applicable Quote, agreement or maintenance schedule. Deficiencies, failures, non-compliant conditions, pre-existing conditions, diagnostic work, corrective repairs, replacement parts and associated labour are excluded unless expressly authorized under a separate written agreement or Quote and will be quoted separately upon request.
13. UNSAFE OR UNFIT WORKING CONDITIONS. Seller may suspend, refuse or reschedule Services if site conditions are unsafe or unsuitable, including restricted access, environmental hazards, inadequate lighting or ventilation, hazardous materials or conditions that do not meet applicable safety requirements. Any resulting delay, standby time, return visit or additional cost may be billed to the Purchaser.
14. SELLER’S REMEDIES: The Seller has the right to recover the Price and any other amounts owed to it hereunder or pursuant to any Quote. The Purchaser agrees that in the event the Purchaser’s creditworthiness becomes unsatisfactory to the Seller in its sole discretion, or upon the Purchaser’s default in the payment of any amount owing hereunder, the Seller shall have the following rights, in addition to any and all other rights that Seller may possess under federal, provincial or municipal law:
(a) to withhold shipment of Goods, or suspend providing Services in whole or in part;
(b) to require cash payments or additional security for future deliveries of Goods or the provision of Services;
(c) to recall Goods in transit and retake the same;
(d) to peaceably enter upon Purchaser ’s premises to repossess the Goods, without the necessity of any legal notices or process; and
(e) to terminate these Terms and Conditions.
The Purchaser acknowledges and agrees that any Goods withheld, recalled, retaken or repossessed pursuant to these Terms and Conditions, shall become the property of the Seller subject only to reasonable set-off for any partial payment made to the Seller for such Goods so long as the Goods are in good working condition upon repossession and are resalable by the Seller. In the event of termination of these Terms and Conditions or other termination of Services, the Purchaser shall pay to the Seller fees for Services performed to the date of termination.
15. PAYMENT OF COSTS. The Purchaser agrees to pay all costs and expenses of the Seller incurred in protecting its rights or property under these Terms and Conditions, or in enforcing these Terms and Conditions, including without limitation legal fees and expenses on a full indemnity basis.
16. LIMITATION OF LIABILITY. THE SELLER WILL NOT BE LIABLE FOR AND THE PURCHASER HEREBY WAIVES AND RELEASES ANY CLAIMS AGAINST THE SELLER FOR ANY DIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, INDIRECT, AGGRAVATED, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST SALES, REVENUES OR PROFIT, LOSS OR RETURN OF OR DAMAGE TO PRODUCT, LOSS OF PROSPECTIVE ECONOMIC ADVANTAGE AND LOSS OF FACILITIES, INVENTORY, WORK-IN-PROGRESS OR TIME AND MATERIALS, ARISING FROM ANY PERFORMANCE OR FAILURE OF PERFORMANCE BY THE SELLER OR ITS EMPLOYEES OR SUBCONTRACTORS UNDER THESE TERMS AND CONDITIONS OR A QUOTE OR FROM THE BREACH OF THE WARRANTY HEREUNDER. THE TOTAL CUMULATIVE LIABILITY OF SELLER, IF ANY, FOR DAMAGES OF ANY KIND RELATING TO THE GOODS SUPPLIED OR SERVICES PERFORMED HEREUNDER OR OTHER BREACH OF THESE TERMS AND CONDITIONS SHALL NOT EXCEED THE PURCHASE PRICE PAID TO THE SELLER FOR SUCH GOODS OR SERVICES.
17. SERVICE LIABILITY CLARIFICATION. Seller shall not be liable for pre-existing conditions, unidentified deficiencies, equipment failures or non-compliant conditions discovered during performance of Services, and the identification of any such issue does not constitute responsibility for repair unless expressly authorized in a separate written agreement or Quote.
18. INDEMNITY. The Purchaser shall defend, indemnify and save harmless the Seller, its agents, directors, officers, shareholders, agents, employees, successors and assigns (collectively the “Indemnitees”) from and against any and all claims, demands, causes of action, losses, costs, damages, liabilities and expenses (including legal fees and expenses) imposed on, incurred by, or asserted against any or all of the Indemnitees, relating to or arising in connection with (i) this Agreement, (ii) the possession, use, maintenance, operation, loss or return of the Goods and Services, (iii) any breach of these Terms and Conditions or default by the Purchaser, (iv) the exercise by the Seller of any rights or remedies hereunder or (v) any entry or taking of possession, removal or disabling the Goods and Services pursuant to this Agreement.
19. CONFLICTS. Except as otherwise expressly agreed by the Seller and the Purchaser in writing, in the event of a conflict between these Terms and Conditions and the Seller’s Quote, these Terms and Conditions and the Seller’s Quote shall prevail.
20. GOVERNING LAW AND DISPUTE RESOLUTION. These Terms and Conditions shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflict of laws principles.
21. NOTICES. Unless specifically directed otherwise, whenever written notice is required under this Agreement, it may be provided by e-mail or other recognized electronic means and the parties further agree that communications and other business dealings between the parties may where appropriate also be conducted by such means.
22. RELATIONSHIP OF THE PARTIES. The relationship of the parties hereto is that of independent contractors. Nothing contained within these terms and conditions, or the course of dealings between the parties shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties and neither party shall have authority to contract for or bind the other party in any manner whatsoever. These terms and conditions are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the terms and conditions herein.
23. GENERAL. Neither party shall assign these Terms and Conditions or a Quote without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. If any provision of these Terms and Conditions is held to be invalid or unenforceable, such holding shall not affect the validity or enforceability of any other provision herein. No waiver by either party of any default or breach by the other party will operate as or be deemed a waiver of any subsequent default or breach. These terms and conditions may only be modified by a writing signed by both Seller and Purchaser.
24. ENUREMENT. Subject to the terms hereof, these Terms and Conditions shall enure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators, successors, permitted assigns and legal representatives.
25. INTERPRETATION. Whenever the context of these Terms and Conditionsso requires, the singular shall include the plural and vice versa and words importing the masculine gender shall include the feminine and neuter genders. Time is of the essence of these Terms and Conditions and each of its provisions. Headings are for convenience of reference and do not affect interpretation. Unless the context otherwise requires, the meaning ascribed thereto by such use. In this Agreement, the word “including” means “including without limitation”.
26. FURTHER ASSURANCES. The Purchaser agrees to do all things and execute or obtain all documents as may be requires by the Seller in order to give effect to or better evidence this Agreement.
27. SURVIVAL. All outstanding obligations shall survive termination of this Agreement.