Terms and Conditions of Sale
The following Terms and Conditions of sale shall apply to any sale of goods and services (the “Terms and Conditions”) by Capana Project Management & Construction Inc. (“CAPANA”). The project owner pursuant to a Contract (see definition below), as further defined below (the “Project Owner”), shall be deemed to have full knowledge of the Terms and Conditions herein and such Terms and Conditions shall be binding upon the official confirmation by CAPANA of the Project Owner’s acceptance of the Quotation, or if the Project Owner does not deliver to CAPANA a written objection to said Terms and Conditions or any part thereof within five (5) days from the date of receipt of these Terms and Conditions.
Any reference to CAPANA or the Project Owner in these Terms and Conditions shall include each of their respective affiliates, directors, officers, employees, agents, subcontractors, and representatives, but does not include the other party in that reference.
In these Terms and Conditions, as appropriate or as required in the context, words importing the singular shall include the plural and vice versa.
In the event of any conflict or inconsistency between the Terms and Conditions of sale herein and the terms and conditions contained in the Project Owner’s order or in any other form issued by the Project Owner, whether or not any such form has been acknowledged or accepted by CAPANA, CAPANA’s Terms and Conditions herein shall prevail. No waiver, alteration or modification of these Terms and Conditions shall be binding upon CAPANA unless made in writing and signed by a duly authorized representative of CAPANA.
2. INFORMATION PROVISION
The Project Owner shall make fully available to CAPANA any and all relevant information CAPANA requires, including project objectives, constraints and criteria, special equipment and systems, site requirements, and project budget. CAPANA shall be entitled to rely upon the accuracy and completeness of all such information and data furnished by the Project Owner to perform the Contract.
3. QUOTATIONS & PROJECT PRICE
All quoted prices are based on the current exchange rates, duties, tariffs, taxes, and costs of manufacture. Unless otherwise stated in the Quotation, quoted prices are subject to change by CAPANA with or without notice. Prices are subject to correction for error.
Unless otherwise stated, CAPANA’s Quotations do not include applicable federal and provincial sales tax, value-added tax or similar tax applicable to the goods/services under the Contract, and the Project Owner shall be responsible for paying all these applicable taxes.
Unless otherwise stated, CAPANA’s Quotation shall be null and void unless accepted by the Project Owner within thirty (30) days after the date of the Quotation.
CAPANA reserves the right to withdraw its Quotation until such time as it is accepted by the Project Owner. Acceptance by the Project Owner of the Quotation shall not result in a contract unless and until CAPANA confirms the same in writing. CAPANA reserves the right to decline any Project Owner’s order for reason of bad credit or any other reason CAPANA may deem reasonable.
Upon the confirmation by CAPANA of the Project Owner’s acceptance of the Quotation, the quoted price shall become the Project Price and shall be binding on both parties, unless adjusted and confirmed in writing by the parties in accordance with Section 5.
4. WORK DESCRIPTION AND SPECIFICATIONS
Any contract arising from the confirmation by CAPANA of the Project Owner’s acceptance of the Quotation (the “Contract”) is limited to the goods and services described and expressly identified as such therein (the “Work”), unless changes made in accordance with Section 5 hereunder.
All other descriptive matters submitted prior to or accompanying the Quotation, such as but not limited to: shipping instructions, specifications, drawings, particulars, weight, dimensions and/or descriptions and illustrations contained in the manufacturer’s catalogues, price lists, and other marketing materials, are approximations only, and are intended to present merely a general idea of the goods and services to be supplied, and shall not form part of the Contract.
The Project Owner shall review promptly all drawings, documentations and other information submitted by CAPANA (the “Drawings”) and inform CAPANA of decisions in writing within thirty (30) days of receipt by the Project Owner.
5. CHANGES AND EXTRAS
The Project Owner may, by written notice, request reasonable changes or extras to the Work (the “Changes or Extras”) after its acceptance of the Quotation has been confirmed by CAPANA, subject however to the following:
(i) CAPANA may reject such changes which in CAPANA’s sole opinion are deemed to be impractical or will affect CAPANA’s warranty or guarantees (if any); or
(ii) An equitable adjustment of the Project Price, completion date, or other provisions of the Contract, as the case may be, which in CAPANA’s sole opinion may be affected by such change. Where such an equitable adjustment is required, CAPANA shall notify the Project Owner in writing, in which event CAPANA shall not be obligated to make the requested changes unless an agreement in writing as to the equitable adjustment is reached.
The goods provided by third parties and to be used by CAPANA in performance of the Work are inspected, and where practical, tested by the respective manufacturers before delivery to the Project Site. If the Project Owner requests tests other than those specified in the Contract, or tests in the presence of the Project Owner’s representative, these shall be arranged by the Project Owner and the respective manufacturers separately. CAPANA shall not be liable for any delay caused by the Project Owner’s request for extra testing and the Project Owner shall be responsible for fully compensating CAPANA for any of its cost, expenses or losses resulting from such delay.
6. ACCESS TO PROJECT SITE
It is the sole responsibility of the Project Owner to ensure CAPANA has adequate access to the Project Site, electricity, and water at all times throughout the performance of the Work. Furthermore, if CAPANA is delayed in the performance of any portion of the Work by any circumstance reasonably beyond CAPANA’s control including equipment malfunction, electricity shortage, site or weather conditions, then the time for the performance of that portion of the Work shall be extended until such time as CAPANA is no longer delayed. CAPANA shall not be responsible for any damages, claims, or losses caused by the failure of CAPANA to perform that portion of the Work during such time that CAPANA was so delayed.
7. APPROVAL BY OTHER AUTHORITIES
Unless otherwise provided in the Quotation, or explicitly required by applicable legislation, the Project Owner shall be responsible for obtaining and paying for all permits, licences, and certificates necessary for the performance of the Work by CAPANA.
8. TITLE TO MATERIALS
Title to the goods, products and materials (the “Materials”) obtained by CAPANA and used by CAPANA in performance of the Work or any part thereof shall not pass from CAPANA to the Project Owner until all payments due hereunder have been duly made in full. The Materials shall be and remain personal or moveable property, notwithstanding their mode of attachment to realty or other property.
9. PAYMENT TERMS
The full amount of the Project Price shall be due within thirty (30) days after the completion of the Project, unless the Quotation provides otherwise. Any amounts which are not paid when due shall bear interest at 2% per month (24% annual) from the date due until the date paid. The rights of CAPANA given in this Section 9 are in addition to, rather than a substitute for, any other rights CAPANA may have under the Contract or at common law, or otherwise, for non-payment by the Project Owner. The Project Owner agrees to indemnify CAPANA for all costs associated with collecting past due payments, including, but not limited to, any and all legal, professional, or collection agency fees. Upon final payment the Project Owner acknowledges that the Project Owner has accepted the Work and that CAPANA has performed its duties within the full scope of the Work outlined in the Quotation.
10. LIMITED LIABILITY
CAPANA will not be liable for and the Project Owner hereby releases CAPANA from any claims, demands or liability arising out of or in connection with the performance or non-performance of the Contract and/or the Work unless due to CAPANA’s direct and gross negligent act or breach provided that IN NO EVENT WILL CAPANA BE LIABLE FOR DAMAGES, HOWSOEVER ARISING (WHETHER UNDER CONTRACT, STATUTE, COMMON LAW, EQUITY OR OTHERWISE): (A) WHICH ARE SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, OR EXEMPLARY, INCLUDING LOSS OF PROFIT, LOSS OF REVENUE, LOSS OF USE, LOSS OF OPPORTUNITY, AND CLAIMS FROM THIRD PARTIES FOR SUCH DAMAGES, (B) FOR WHICH WRITTEN NOTICE OF THE CIRCUMSTANCES UPON WHICH SUCH DAMAGES ARE INCURRED HAS NOT BEEN PROVIDED TO CAPANA WITHIN 30 DAYS OF THE PROJECT OWNER HAVING BECOME AWARE OF THE OCCURANCE OF SUCH DAMAGE, OR (C) WHICH EXCEED THE AMOUNT ACTUALLY PAID BY THE PROJECT OWNER TO CAPANA UNDER THE CONTRACT. Without limiting any other provision of the Contract, the Project Owner remains responsible for and shall fully indemnify CAPANA in respect of: (i) damages caused by failure to keep the Project Site accessible, (ii) damages caused by failure to keep electricity and water accessible for CAPANA to perform the Work, (iii) personal injury or property damage arising in the course of the performance of the Contract not caused by the direct negligent act or breach of CAPANA, and (iv) the negligence or wrongful act or omission of or breach of the Contract by the Project Owner or those for whom the Project Owner is in law responsible.
Subject to the terms herein, the Work performed hereunder is subject to a warranty against defects, provided that the Work is subject to normal use and proper maintenance by the Project Owner. The applicable warranty period is one (1) year from the date of completion of the Work which is to be ascribed in the Quotation or other written document from CAPANA (the “Warranty Period”). Repairs or replacement deliveries do not interrupt or increase the term of the Warranty Period.
Should there be any defect in the Work requiring repair and/or replacement, the Project Owner must notify CAPANA in writing immediately upon discovery. In the event CAPANA receives written notice from Project Owner claiming a breach of the warranty within the Warranty Period and an inspection thereof reveals to CAPANA’s satisfaction that the Project Owner’s claim is valid under the terms of this warranty, CAPANA may at its sole discretion re-perform or replace the defective installation to which said claim relates to the extent necessary to meet the original requirements specified in the Quotation. In no circumstance shall CAPANA’s obligation pursuant to this Section exceed the total of fees actually paid to CAPANA by the Project Owner for the Work. This re-performance or replacement of defective installation as specified in this Section shall be the Project Owner’s exclusive remedy for any breach of warranty under the Contract.
The Project Owner shall assume all responsibility and expense for any dismantling, removal, re-installation, and transportation costs of materials in connection with the warranty service in this Section.
Notwithstanding any other provision of the Contract and for greater certainty, there shall be no warranty for any products, goods or materials purchased and supplied by the Project Owner and used by CAPANA in the Work. For these products, goods and/or materials only the original manufacturer’s warranty shall apply.
The warranty in this Section ceases to be effective and shall be void if: (i) payment of the Project Owner has been outstanding for over 90 days; (ii) the Work is altered or repaired other than by persons authorized or approved by CAPANA; (iii) the Project Owner fails to operate and use the Work in a safe and reasonable manner and in accordance with any written instructions from CAPANA or original manufacturers or as specified herein; or (iv) the damage or defect is caused by windstorm, tornado, lighting, hail, and any other acts of nature, whether wholly or in part.
EXCEPT FOR THE EXPRESS WARRANTY SET OUT IN THIS SECTION, ALL MATERIALS, GOODS AND/OR SERVICES PROVIDED BY CAPANA ARE PROVIDED ON AN “AS IS” BASIS AND THERE IS NO OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CAPANA HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS AND/OR IMPLIED, AND CONDITIONS OF EVERY KIND PERTAINING IN ANY WAY TO ANY OR ALL OF SAME, INCLUDING, WITHOUT LIMITATION, GUARANTEE OF QUALITY, MERCHANTABILITY, OPERATION, ADEQUACY, SUITABILITY, FITNESS FOR PARTICULAR PURPOSE, AND/OR ACHIEVING A PARTICULAR RESULT, WHETHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW, USAGE OF TRADE, COURSE OF DEALING, CUSTOM, OR OTHERWISE.
12. FORCE MAJEURE
CAPANA shall not be responsible or liable for any loss or damage incurred by the Project Owner herein resulting from causes beyond the reasonable control of CAPANA including, but without limitation, acts of god, war, pandemic, invasion, insurrection, riot , the order of any civil or military authority, fire, flood, weather, acts of the elements, delays in transportation, unavailability of equipment or materials, breakdown, sabotage, lock-outs, strikes or labour disputes, faulty castings or forgings, or the failure of CAPANA’s suppliers to meet their delivery promises. The acceptance of delivery of the goods and services by the Project Owner shall constitute a waiver of all claims for loss or damage due to any delay whatsoever.
Orders accepted by CAPANA are not subject to cancellation by the Project Owner, except with CAPANA’s written consent.
In such cases where CAPANA authorizes cancellation, CAPANA reserves the right to charge the Project Owner with reasonable costs based upon expenses already incurred and commitments made by CAPANA, including, without limitation, any labour done, material purchased and also including the supplier’s usual overhead and reasonable profit and cancellation charges from CAPANA’s suppliers.
14. ENTIRE AGREEMENT
An official confirmation by CAPANA of the Project Owner’s acceptance of the Quotation shall constitute the complete agreement, subject to the Terms and Conditions herein set forth, and shall supersede all previous quotations, orders, or agreements.
In the event of a conflict or inconsistency between the Quotation and these Terms and Conditions, the Quotation shall prevail.
Any failure of CAPANA to enforce any provision or to exercise any of its rights pursuant to the Terms and Conditions, or the Contract related thereto, shall not constitute a waiver, estoppel or relinquishment of any terms, conditions or rights pursuant to the Terms and Conditions and will not limit CAPANA’s right to enforce strict compliance of its rights at a later date.
16. GOVERNING LAWS AND JURISDICTION
The Contract shall be governed by and construed in accordance with the laws of the Province of Ontario. The parties hereby submit to the non-exclusive jurisdiction of the courts of the Province of Ontario for any legal action arising out of this Agreement or the performance of the obligations hereunder or thereunder.
If any provision in the present Terms and Conditions should be held invalid, unenforceable or against public policy by a Canadian court of competent jurisdiction, the remaining provisions shall remain valid with full force and effect.
18. AMENDMENTS & CHANGES
No amendment to the Contract or the Work described in the Quotation will be valid or binding unless set forth in writing and duly executed by both parties.
The Project Owner shall not be permitted to assign the Contract or any of its rights or obligations hereunder without the prior written consent of CAPANA. CAPANA shall be entitled to assign the Contract or any of its rights or obligations hereunder to its affiliates without the prior consent of the Project Owner.
20. SUCCESSORS AND ASSIGNMENTS
The Contract will enure to the benefit of and be binding upon the successors and permitted assigns of the Project Owner and CAPANA.