1. Coverage, contrary conditions, authorization
- These General Terms and Conditions of Sale and Delivery (“General Terms”) apply to all current and future offers, orders, confirmations, deliveries and other transactions, whether written or oral (each individually a “Transaction” and collectively, “Transactions”) between KB Racking Inc. (“KBR”) and each Customer.
- Unless KBR has specifically agreed otherwise in writing, no provision in any Customer documentation differing from or conflicting with these General Terms shall be effective for any purpose or to any extent, even if KBR has knowledge of such differing provision.
- Employees of KBR are not authorized to modify, amend, change or waive any of these General Terms. These General Terms may be modified, amended, changed or waived only by an Authorized Signing Officer (further on “ASO”) of KBR acting in accordance with appropriate action of KBR’s Board of Directors.
2. Offers; Contracts; Property Rights
- KBR’s quotes and offers are non-binding and shall not have binding effect until they have been accepted by Customer either by signing the quote and transmission by mail, fax or electronic mail or by purchase order. Either signed quote or purchase order has to be confirmed in writing or by electronic mail by an ASO of KBR.
- KBR shall have and retain all rights of ownership, proprietary use, registered design and other property rights of, in or to all illustrations, calculations, reports, drawings, drafts, constructions and other documents created, developed, produced or generated by KBR pursuant to any business relationship between KBR and Customer, and Customer may use such items only for the purposes contemplated by such relationship, and any other use of the same by Customer, or delivery of any of the same to a third party, is prohibited.
- Customer guarantees that it has the right and authority to deliver all illustrations, calculations, reports, drawings, drafts, constructions or other documents supplied by Customer and that no third party has any commercial property, patent, registered design, proprietary use or other rights therein which would be violated if any of the same are utilized by or on behalf of KBR. Customer indemnifies KBR from and against claims by third parties that any violation of any such rights has occurred.
3. Prices; Terms of Payment
- All prices are factory prices, and, unless otherwise stated to Customer, include packing and applicable sales or business privilege taxes.
- Unless otherwise specifically agreed in writing by KBR, all payments due KBR on the basis of the terms agreed to in the quote are payable in full without deduction within five (5) business days from due date of the pertinent invoice. All amounts not paid within such time shall bear interest at the rate of eighteen percent (18%) per annum.
- Following a default by Customer with respect to any payment or performance obligation owing to KBR, regardless of any other rights and remedies KBR may have at law or otherwise, KBR shall be entitled to immediate payment of all sums then or thereafter due and owning by Customer to KBR.
4. Offsetting; Retention
- Customer’s claims and demands shall under no circumstances be offset against amounts due to KBR except and to the extent such claims and demands have been reduced by a court of law in the province of Ontario.
- Customer shall not withhold or otherwise offset any amounts owing to KBR except in accordance with these General Terms, and only with respect to the same Transaction on account of which such amounts are due and payable.
5. Delivery; Delay; Force Majeure
- KBR’s performance is conditional upon Customer’s due, proper and punctual performance of all of Customer’s obligations.
- If any performance by KBR is unreasonably delayed, Customer may terminate the contract as to which such delay occurs in accordance with the provisions of such contract.
- If either party’s failure to meet any delivery deadline is due to force majeure or other circumstances beyond such party’s control, any applicable delivery deadline applicable to such party shall be extended until the reason for such delay is ameliorated. As used in these General Terms, force majeure means and includes acts of God, war, civil strife or riots, natural disasters, shortages of materials, or strikes impacting performance by KBR or any of its suppliers. If any force majeure persists longer than six weeks, either party shall be entitled to terminate any contract as to which such force majeure has been in effect for such six-week period to the extent that contract has not yet been performed. In order for Customer to so terminate, Customer must deliver to KBR 14 days written notice of its intention to terminate the Transaction, and must give KBR the option of performing delivery of the Transaction during such notice period.
- Subject to approval by the Customer, KBR may make any required delivery prior to the required time as included in any delivery schedule, and may immediately bill Customer pro rata for such partial advance deliveries.
- Customer must deliver written notice to KBR no less than four weeks prior to any scheduled delivery, wherein such notice must include: (a) the desired delivery date and location for delivery; (b) the Purchase Order; (c) the down payment (deposit); and (d) layout approval. If the Customer fails to deliver such written notice, along with all required deliveries and attachments, KBR shall not be held responsible for any delayed deliveries.
6. Acceptance; Risk of Loss; Transport
- Unless otherwise mutually agreed in writing by KBR and Customer, all deliveries hereunder shall be made Ex-works at KBR’s manufacturing sites at Customer’s sole cost and expense. Alternatively, Customer may request that KBR arrange for shipping to another location at Customer’s sole cost and expense, and KBR must be notified in writing in a timely manner of any special instructions in regard to the mode and type of transport. Such instructions will only be binding if confirmed by KBR in writing.
- All risk of loss, damage or deterioration of goods after delivery thereof in accordance with these General Terms shall be borne by Customer as of the time that such goods leave KBR’s manufacturing site. This allocation of risk shall apply in any case of partial delivery or if KBR has agreed to perform additional services or undertakings, such as the responsibility for transportation of goods.
- Should Customer’s acceptance of goods or other performance be delayed as a result of Customer’s failure to fulfill its duties, the risk of loss, damage or deterioration shall nonetheless be borne by Customer as of the time Customer was obliged to receive delivery of such goods or perform any inspections or other duties.
- Solely upon Customer's request and at its expense, KBR shall insure any shipped goods against transport damages
- The bill of lading will be sent to the Customer within 24 hours of delivery; Customer covenants to inspect any delivery and report any damages or quantity discrepancies to KBR within 3 business days or delivery thereof.
7. Retention of Title
- KBR shall retain title to the goods delivered to Customer until such time that Customer remits payment in full to KBR (including any such amounts due for logistics and any extras or add-ons) and has performed any and all other obligations arising from the Transaction. KBR’s retention of title extends to all claims resulting from current and former contracts between the parties, including current account balances payable by Customer to KBR.
- If Customer breaches its obligations, including, without limitation, fails to perform its payment obligations, KBR shall be entitled to terminate the Transaction, recover any goods theretofore delivered to Customer and/or register a lien against the Customer or project owner with respect to the delivered goods. KBR shall also be entitled to so terminate and recover previously delivered goods if:
1. Customer fails to comply with essential contractual obligations;
2. A material diminishment of Customer’s assets or property occurs, or any attachment or execution is levied against Customer or any of its assets, or any bankruptcy or insolvency proceedings are instituted by or against Customer or its assets, or Customer makes any assignment for the benefit of creditors;
- Customer shall handle all goods delivered to it with care and insure them at its own expense in the amount of the full replacement value thereof against fire, water, storm, hail, snow loads, theft or other casualties. Customer shall also be responsible for the care and maintenance of such goods at its own cost.
- Prior to the transfer of title in accordance with these General Terms, any goods retained by Customer may not be mortgaged or assigned as security. If attachment is levied against such goods or other claims are asserted against such goods by third parties, Customer shall immediately inform KBR thereof in writing. Customer shall be liable to KBR for all losses resulting from any such attachment, lien or claim.
8. Procurement Agreement; Assembly
- Goods shall be regarded as conforming to KBR’s obligations if they are capable of being used or are in a condition usual for use as intended or expected considering nature of such goods. Samples, depictions in leaflets or brochures, or information contained in other advertising material are to be regarded as rough guidelines and shall not be binding.
- Contract provisions differing from these General Terms or the issuance of a guarantee shall not be effective unless confirmed in writing by an ASO of KBR acting in accordance with appropriate action of KBR’s Board of Directors. Employees of KBR shall not be entitled to make agreements or issue guarantees modifying these General Terms.
- If KBR provides employees to assist Customer’s construction management or other staff with the supervision of the assembly of goods or to assist with the assembly itself, KBR shall only be liable for selecting its technically qualified, professional staff. KBR shall not be responsible for tasks and functions of construction management, surveyors, building inspections, planning, coordination or the assembly process. Moreover, no act of KBR shall constitute an undertaking of responsibility for professional and proper installation and/or mounting of the system of which KBR’s goods are a part in accordance with the plans and other documents relating.
9. Due Diligence Review; Notification of Defects; Liability for Defects
- Claims of Customer based on alleged defects in goods are subject to the prerequisite that Customer has duly fulfilled all examination, inspection and reporting obligations under Ontario law, which shall govern all rights and duties of the parties except as otherwise provided herein. All claims of defects shall be made in writing to KBR at its office at 1 Atlantic Ave., Suite 210, Toronto, ON M6K 3E7.
- Customer shall not be entitled to assert or recover for any claim that any of the goods are defective if:
- In the event that it is determined that a defect in the quality of the goods exists, KBR shall, in its sole discretion, be entitled to either correct the faults or deliver conforming goods, and all payments made by Customer for goods subject to correction or replacement shall apply to the corrected or replaced goods.
1. KBR is not given notice of the alleged defect within ten (10) business days of delivery of the goods in question;
2. Customer failed to comply with or adhere to assembly or operating instructions or any other specifications regarding the goods;
3. Customer had not properly and fully informed KBR as to all technical basic conditions pertaining to the project in with the goods were to be used (e.g. concrete wind and snow loads, building height); or
4. The goods have been misused or treated improperly or in an unsuitable way, such as by being incorrectly or inappropriately mounted or being merged with an inappropriate structure or component of another supplier.
- Customer shall be entitled to either request a reduction in the purchase price or to terminate the contract if KBR refuses or fails to correct or replace defective goods within 180 days of receipt of defect notice.
- If upon receipt of replacement material, defect still remains, the Customer shall be entitled to submit a further defect notice subject to the provisions of Section 9.2, upon which time the defect resolution process described in this Section 9, and the referenced 180 day resolution period referred to at Section 9.4, shall start again.
- Customer shall not be entitled to request a price reduction, terminate the contract or assert a claim for damages if the alleged defect is insignificant or immaterial and the goods can still be used for their intended purpose.
- If an order includes delivery of construction or assembly documents (assembly instructions) for the goods and such assembly instructions prove to be defective or incorrect, Customer shall be entitled to recover damages for any unavoidable loss incurred. However, no damages shall be recoverable if the goods have been assembled, mounted or used correctly despite defective assembly instructions, in which case KBR’s only obligation shall be obliged to deliver correct assembly instruction in accordance with Section 9.3.
- Such 180 day period referred to in Section 9.4 shall be extended during any period of time that KBR and Customer actively negotiate with respect to KBR’s rejection of a defect notice issued by the Customer under this Section 9. Such period of suspension shall commence with KB Racking’s rejection of a claim and shall end at the time that resolution of such claim is achieved.
- The exclusions and limitations of liabilities contained in Section 11 shall apply to any claims for damages.
- All liabilities for defects in quality and title are excluded in case the pertinent goods are the subject of a warranty from a third party, in which case Customer’s rights shall be limited to recovery under such third party warranty.
KBR makes no warranty or guarantee as to any goods or other items except as specifically stated in these Terms and Conditions. Without limiting the generality of the foregoing, except as specifically stated in these General Terms, KBR makes no implied warranty of merchantability or of fitness for a particular use of any goods or other items provided by KBR and there are no warranties which extend beyond the description in these General Terms.
10. Extended Guarantee for Products of Solar Mounting Systems
- KBR may, in its sole discretion, grant Customer a guarantee as to the durability of components or systems (an “Extended Guarantee”), however such guarantee shall only be effective if it is in writing and is signed by an ASO of KBR acting in accordance with appropriate authorization of KBR’s Board of Directors. If such a guarantee is issued, the remaining provisions of this Section 10 shall apply.
- In order for Customer to qualify for issuance KBR’s Extended Guarantee, Customer shall complete a site inspection checklist and send pictures showing the successful installation of the system(s) to KBR for review. KBR shall not issue any Extended Guarantee prior to receipt of such site inspection checklist and pictures of the installed goods.
- Unless otherwise agreed, the guarantee shall be for a period of twenty-five (25) years. However, for specified components generally, or for a particular type of use of a component, the term of the guarantee may be shorter or longer, as expressly specified or provided for by KBR in KBR's sole discretion. If a shorter guarantee is specified as to any component, or if an exchange of a component is scheduled within a shorter period, the guarantee period shall be restricted to such specified shorter period.
- The guarantee is granted in respect of the durability of the goods subject thereto and shall be limited exclusively to the claims specified below.
- If, despite proper installation and handling and normal use, any structural component fails to perform as designed within the guarantee period, KBR shall promptly, following receipt of notice of such defect or failure by Customer in writing, exchange such component. The guarantee is limited to additional delivery of the defective component upon notification of the damage within the guarantee period.
- The obligation to perform under the guarantee shall not apply if the pertinent damage arose in connection with defective installation or handling of the system of which it is a part or in connection with exceptional stress (e.g. storm damage, instability of the sub-surface, particular chemical or biological effects), unless the damage is documented as not having been caused thereby rather was caused by a design or manufacturing defect. With regard to installation and handling, the technical product descriptions and installation instructions regarding the goods supplied by KBR shall apply, as shall generally recognized standards and principles of building and construction work, together with, as appropriate, the plans, specifications and instructions prepared by KBR for Customer for the particular project.
- No claims shall exist if the damage is covered or coverable by insurance against storm and similar natural events, or is the result of the Customer’s own negligence or willful misconduct.
- The guarantee extends only to claims of Customer. Third parties shall have no rights or benefits under the guarantee. Customer hereby grants KBR permission, on reasonable advance notice, to enter upon the property where KBR’s components have been installed to carry out warranty obligations and for other reasonable purposes. If Customer is not the owner of the property, Customer shall procure such permission from the owner.
11. Liability, Damages and Expenses
- Except as specifically provided herein, KBR shall have no duty or liability of any type, kind or nature for damages or other claims by or on the part of Customer or any other party.
- Notwithstanding any other provision of these General Terms, the aggregate liability of KBR with respect to any Claim (defined below) arising with respect to an individual Transaction from any and all causes (whether based in warranty, contract, tort (including negligence), strict liability, law or equity, or any other cause of action) (each a “Claim”) shall not exceed the value of the Transaction giving rise to such Claim or Claims.
- UNDER NO CIRCUMSTANCES SHALL KBR BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THESE GENERAL TERMS, INCLUDING BUT NOT LIMITED TO LOST PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR BUSINESS INTERRUPTION, EVEN IF KBR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- The limitation on liability provided herein on the part of KBR shall also apply to, and Customer agrees to hold harmless of all Claims, KBR's officers, directors, shareholders, employees, staff, representatives and agents of every kind and type.
12. Applicable Law; Place of Performance Jurisdiction
- All contracts and other relationships between KBR and Customer shall be performed in accordance with and shall be subject to, and shall be construed in accordance with, the substantive laws of the Province of Ontario, without giving effect to principles of conflict of laws.
- Unless otherwise stated in the purchase contract, KBR's place of business at 1 Atlantic Ave., Suite 210, Toronto, ON M6K 3E7 shall be place of performance required of the parties.
- Any dispute arising between or involving the parties with respect to any contract or other relationship between them which is not resolved pursuant to other applicable provisions of these General Terms shall be resolved only by proceedings instituted and conducted in a court of competent jurisdiction in Toronto, Ontario. Both parties hereby (i) waive the right to sue or be sued in any other court or jurisdiction and agree to submit to the exclusive in personem and subject matter jurisdiction of such court, (ii) waive all claims or contentions that such court does not have personal jurisdiction over them or subject matter jurisdiction over the dispute or is an inconvenient forum for resolution of disputes arising under these General Terms, and (iii) agree that process may be served upon them in any such proceeding in accordance with Ontario law and the rules of such court.