High Purity Water Services Inc (“HPWS”) OBJECTS IN ADVANCE TO ANY TERMS WHICH ATTEMPT TO MODIFY OR ADD TO THESE TERMS WHICH ARE CONTAINED IN ANY DOCUMENTS, ACCEPTANCES OR THE LIKE WHICH MAY BE FURNISHED BY THE CUSTOMER. ANY SUCH MODIFICATIONS OR ADDITIONS SHALL BE VOID, UNLESS EXPRESSLY ACCEPTED IN WRITING BY HPWS.
2. EXCUSABLE DELAYS
HPWS shall not be responsible for non-performance or delays in performance occasioned by any causes beyond HPWS’s reasonable control, including, but not limited to labor difficulties (including strikes), delays of vendors or carriers, fires, acts of God, war, terrorism, riot, governmental actions and material shortages. Any delays so occasioned shall result in a corresponding extension of HPWS’s performance dates which are, in any event, understood to be approximate.
HPWS’s prices are based on the terms and conditions contained in this document. This document together with any order acknowledgement issued by HPWS, represents the final, complete and exclusive statements of the agreement (the “Agreement”) between HPWS and the Customer, and may not be modified, amended, supplemented, rescinded, waived, explained or otherwise affected by verbal evidence, Customer’s purchase order, a course of dealing, or in any other way, except in writing signed by an authorized representative of HPWS. These terms and conditions are intended to cover all activity of HPWS and the Customer, including sales and use of product and work and all related matters (references to products under the Agreement include parts sold separately and/or parts and components used in work to be performed under the Agreement, and references to work include the service or services rendered under the Agreement). Any reference by HPWS to Customer’s specifications and similar requirements are only to describe the products and work covered hereby and no warranty or other terms or conditions therein shall have any force or effect. Website information, catalogs, and circulars or similar pamphlets or brochures of HPWS, are issued for general information purposes only, and are not part of the Agreement. Any reference in this document to HPWS includes HPWS’s directors, officers, employees, representatives and agents.
3. DELIVERY, TITLE & RISK OF LOSS
Completion dates are approximate, and in the case of service work or evaluations of parts and equipment, based upon prompt receipt of the equipment or parts, or ready access to Customer’s premises if it is to be worked on the Customer’s premises, and prompt receipt of all necessary information. Full risk of loss (including transportation delays and losses) shall pass to the Customer upon removal of equipment or parts from the HPWS facility where the parts or equipment are serviced or evaluated, or the HPWS facility out of which the parts or equipment are sold or supplied.
A. HPWS warrants that its work when performed and services when rendered will meet all specific requirements agreed to in writing by HPWS, and will be done in a good and workmanlike manner. HPWS warrants its work for a period of THREE (3) months from completion of the work and all claims for defective work must be made in writing immediately upon discovery, and in any event, within SIX (6) months from date of completion thereof by HPWS. Upon Customer’s submission of a claim and its substantiation, HPWS shall at its option either (i) repair Customer’s equipment at the original F.O.B. point of delivery, (ii) refund an equitable portion of the contract price, (iii) furnish F.O.B. HPWS’s facility or other point of shipment, any necessary repaired or replacement parts or, (iv) in the case of service, repertory the service.
B. HPWS warrants that the equipment and parts manufactured by it and delivered hereunder will be free from defects in material and workmanship for a period of twelve (12) months from the date of initial start-up or TWELVE (12) months from the date of shipment, whichever shall first occur. The Customer shall report any claimed defect in writing to HPWS immediately upon discovery. After notice from Customer and substantiation by HPWS of the claim, HPWS shall, at its option, correct such defect either by suitable repair to such equipment or parts, or by furnishing replacement equipment or parts, as necessary, to the original F.O.B. point of shipment.
C. With respect to products, goods, equipment or parts not manufactured by HPWS, HPWS provides to the Customer a warranty that is identical to that which it receives from the manufacturer or supplier who was the manufacturer or supplier of such products, goods, equipment or parts, and HPWS has no other responsibility for such products, goods, equipment or parts.
D. HPWS shall not be liable for the cost of any repair, replacement, or adjustment to the equipment or parts made by the Customer or for labor performed by the Customer or others on such equipment or parts.
E. No equipment or part furnished by HPWS shall be deemed to be defective by reason of normal wear and tear, or Customer’s failure to properly store, install, operate or maintain the equipment or parts in accordance with good industry practices or specific recommendations made by HPWS or the manufacturer or supplier of the equipment or parts.
F. HPWS makes no other warranty of any kind whatsoever, expressed or implied, and all warranties or implied conditions of merchantability or fitness for a particular purpose or any other warranty or condition implied by statute, are hereby agreed by the parties not to be part of the agreement and excluded from the terms and conditions of the agreement. The customer’s sole and exclusive remedy against HPWS, whether based upon warranty, statute, contract, tort (including negligence or strict liability), or any other basis, will be limited to the rights of the customer under this warranty section 4.
5. CUSTOMER’S RESPONSIBILITY
Customer agrees to operate parts and equipment within design specifications as well as in accordance with recommendations of HPWS and the manufacturer or supplier of any particular part or equipment received by the Customer.
A. Invoices are due within 30 days the date shown on the invoice for the product or services. Thereafter, interest shall be payable on unpaid balances at the rate of 18% per annum, calculated semi-annually not in advance, from the due date until payment is received.
7. HPWS’S LIEN RIGHTS
In addition to any right under statute, HPWS shall have a particular lien and general right of detention upon any equipment or parts repaired, modified, inspected, tested, maintained or serviced that are in HPWS’s possession or control. This lien and general right of detention shall be for all amounts owing to HPWS by the Customer, whether those amounts were incurred to HPWS before, during or after the equipment or parts came into HPWS’s possession or control. If any amount owes by the Customer for more than 90 days following completion of any work and date of invoicing the Customer for that work, HPWS may, upon not less than 7 days written notice to the Customer at the Customer’s last known address, sell the equipment or parts at public or private sale. The Customer shall be responsible for all costs associated with such a sale, including costs of advertising, commissions and legal fees. HPWS shall apply the net proceeds realized from such sale to any amount owing by the Customer to HPWS as HPWS deems appropriate. The Customer shall remain liable for the balance owing to HPWS after such net proceeds are applied to the indebtedness of the Customer.
8. LIMITATION OF LIABILITY
Without in any way limiting the terms and conditions of the warranty section of the agreement which limit the remedies of the customer to that contained in the warranty, the parties further agree that:
a. The total liability of HPWS with respect to the products, goods, equipment, parts, work or services furnished under the agreement, including any claim in relation to the performance or breach of the agreement, or arising from the manufacture, sale, delivery, installation, repair or technical correction or other work or services covered by or furnished under this agreement, and whether such claim is based upon warranty, statute, contract, tort (including negligence and strict liability), or any other basis, shall not exceed the contract price agreed to by HPWS in relation to such products, goods, equipment, parts, work or services.
b. HPWS shall in no event be liable to the customer, any successors in interest or any beneficiary or assignee of the agreement, for any consequential, incidental, indirect, special or punitive damages, including but not limited to claims based upon loss of use, lost profits or revenue, interest, lost goodwill, work stoppage, impairment of other goods, loss by reason of shutdown or non-operation, increased expenses of operation, cost of purchase of replacement power, or claims of customer or its customers for service interruption, whether or not the claim for such loss or damage is based on warranty, statute, contract, tort (including negligence or strict liability) or any other basis. HPWS disclaims all liability, whether the claim is based upon warranty, statute, contract, tort (including negligence or strict liability), or any other basis, to any party other than the customer.
Neither party shall assign or transfer the Agreement without the prior written consent of the other party, which shall not be unreasonably withheld.
10. GOVERNING LAW
The rights and obligations of the parties under the Agreement as well as any dispute between the parties shall exclusively be governed by and dealt with through the laws and courts of the Province of Ontario, Canada.