(the “Agreement” or “General Terms & Conditions”)
These General Terms & Conditions are effective as of the date of the initial Sales Order (the “Effective Date”) executed between: you and/or your organization, (the “Client” or the “Buyer”), and Purity Gas Inc., a corporation incorporated under the laws of the Province of Ontario (“Seller”, and together with the Buyer, the “Party” or “Parties” as applicable). Any capitalized terms used but not defined herein shall have the meaning set forth in an applicable Sales Order between the Parties. For good and valuable consideration, the Parties agree as follows:
1. Application of General Terms & Conditions: This Agreement is binding on the Parties. This Agreement shall apply to each purchase or sales order entered into between the Parties for the provision of the Seller’s product (the “Product”), any support services therefrom (the “Support Services”), and/or any additional services in relation to the collection and use of related data (the “Data Services”, and together with the Product and the Support Services, the “Services”) during the Term (“Sales Order”). Any and all Sales Orders are deemed to form part of this Agreement. The Parties may enter into additional Sales Orders, which shall also form part of this Agreement.
2. Acceptance: All orders are subject to approval and acceptance by Seller. A written acknowledgement sent to Buyer of orders so approved shall constitute such acceptance by Seller. Seller may at any time alter or suspend credit, refuse shipment or cancel unfilled orders when, in Seller’s opinion, the financial condition of the Buyer warrants it, when delivery is delayed by fault of Buyer or Buyer is delinquent in any payment. No order accepted by Seller will be subject to cancellations or any other modifications except with Seller’s prior written consent. Any such modifications may be subject to a charge as determined by Seller.
3. Prices, Taxes and Payment: Regarding fees for the Product, all prices are firm unless otherwise agreed in writing. Seller reserves the right to change the prices and specifications of its Products at any time without notice. Any tax, duty, custom or other fee of any nature imposed upon this transaction by any international, export, import, federal, state or local governmental authority shall be paid by Buyer in addition to the price quoted or invoiced. In the event Seller is required to prepay any such tax, Buyer will reimburse Seller. Regarding the Support Services, the Buyer agrees to pay Seller the fees and applicable Expenses, as set out in one or more Sales Order, as well as any sales, value-add, usage or other government mandated taxes based upon such fees and Expenses. The Buyer shall reimburse Seller for any reasonable and documented expenses incurred in connection with the performance of the Support Services pursuant to this Agreement, provided that the Buyer has approved such Expenses in writing (the “Expenses”). Regarding Product fees, all shipment costs shall be paid by Buyer, and if prepaid by Seller, the amount thereof shall be reimbursed to Seller within thirty (30) days after notice of such payment to Buyer. Payment terms for the Product shall be net 30 days after shipment by Seller, and net 30 days following the issuance of an invoice for any applicable Support Services (the “Due Date”). For any amount due and owing to Seller but not paid by the Buyer by the Due Date, the Buyer hereby agrees to pay Seller’s reasonable expenses, including lawyer and collection agency fees, incurred in enforcing its right to payment.
4. Delivery and Shipment: Seller will make every effort to ship the products or provide the services hereunder in accordance with the requested date provided Seller accepts no liability for any losses or for general, special or consequential damages arising out of delays in delivery. Shipment of all Products shall be F.O.B point of distribution by Seller. Identification of the products shall occur when they leave the Seller’s point of distribution, at which time title and risk of loss shall pass to Buyer.
5. Inspection: Buyer shall inspect all items upon arrival and shall give written notice to Seller within ten (10) days of arrival of any claim for shortage or non-conformance with the terms hereof. If Buyer shall fail to give such notice, all items shall be deemed to conform, and Buyer shall be bound to accept and pay for items in accordance with the terms hereof.
6. Confidentiality: If applicable, the terms and conditions of a non-disclosure agreement (“NDA”) entered into between the Parties prior to, or on or about the Effective date, are incorporated by reference and form part of this Agreement. Notwithstanding anything to the contrary, in the event of a conflict between the provisions set out in this provision and the terms and conditions of any non-disclosure agreements previously entered into between the Parties, in so far as it relates to the scope of Services set out under this Agreement or an applicable Sales Order, these confidentiality provisions shall prevail. Any breach of this section shall constitute a material breach of this Agreement. These confidentiality provisions shall not apply to information that:
“Confidential Information” means the following types of information (or other information of a similar nature) provided by either Party to the other Party in connection with the negotiation or performance of this Agreement, whether disclosed in writing, orally, or by any other means or medium: any Sales Order, regardless of form, technical drawings and manuals, data, designs and concepts, software programs, routines, formulae and concepts, production plans, designs, layouts and schedules, marketing analyses, plans, and all matters relating to finances and personnel. For clarity, the Data Services are Confidential Information of Seller.
(a) Each Party agrees to use at least the same degree of care to avoid and prevent disclosure of the other Party’s Confidential Information as it uses to prevent disclosure of its own Confidential Information of like nature and importance, and in no event less than a reasonable degree of care.
(b) All information obtained from time to time as a result of either Party’s access to the other Party’s computer system shall be deemed Confidential Information and shall be treated as such.
(c) Each Party shall inform its employees and contractors of their obligations under these confidentiality provisions and shall instruct them so as to ensure such obligations are met.
(d) The receiving Party’s obligations hereunder with regard to Confidential Information of the disclosing Party remain in effect during the term of this Agreement and for three (3) years thereafter, provided that where such Confidential Information is a trade secret of the disclosing Party, the obligations remain in effect for as long as such information remains a trade secret under applicable law.
(e) For clarity, the Data Services and any additional data collected under Section 18(c) hereto are included in the definition of Seller’s Confidential Information.
7. Disclosures Required by Law: Notwithstanding the restrictions set out in these confidentiality provisions, to the extent a receiving Party is legally required to disclose Confidential Information of the disclosing Party as a result of judicial or other governmental action, it may disclose such information; provided, that prompt notice of said judicial or other governmental action shall have been given to the disclosing Party prior to the disclosure so that the disclosing Party is afforded the opportunity (consistent with the legal obligations of the receiving Party) to seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained or the disclosing Party waives compliance with the provisions of this Agreement, the receiving Party shall furnish only that portion of the Confidential Information in respect of which it is advised by written opinion of legal counsel that it is required to disclose.
8. Privacy – No PII Collected: The Parties acknowledge that the nature of the Services is not intended to grant Seller direct access to Personal Information. In the event that Seller has access to any Personal Information (with the exception of the business contact information of Buyer and its representatives), any such access shall be incidental. To the extent that Seller has incidental access to Personal Information, Seller agrees to treat Personal Information as Confidential Information. For the purposes of this paragraph, “Personal Information” means, with the exception of the Buyer’s name and address, any personally identifiable information, in any format or medium, from or about an individual, or information that can be used to authenticate that individual such as passwords, PINs and unique identification numbers, including any information which, on its own or when reasonably combined with other available information, relates to an identifiable individual.
9. Limitation of Liability: NOTWITHSTANDING ANYTHING TO THE CONTRARY: (A) NEITHER PARTY AND ITS OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL BE RESPONSIBLE OR LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES, ANY DELAYS IN THE SHIPMENT OF ANY PRODUCTS OR SERVICES, ANY CLAIM BASED UPON A PARTY’S NEGLIGENCE OR WILLFUL MISCONDUCT, OR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; AND (B) THE SELLER AND ITS OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE LIABLE: (I) FOR ANY CHANGES AND/OR MODIFICATIONS MADE TO THE SERVICES BY THE BUYER OR ANY THIRD PARTY; (II) FOR ANY CLAIMS RELATING TO THE FAILURE OF THE BUYER’S OR ANY THIRD PARTY’S EQUIPMENT; (III) FOR THE SERVICES THAT ARE PROVIDED (OR BUILT, AS APPLICABLE) ACCORDING TO PLANS OR SPECIFICATIONS, CREATED OR PROVIDED BY OR ON BEHALF OF THE BUYER; (IV) DELAYS IN MAINTENANCE, REPAIRING, INSTALLING OR IMPROVING ANY SERVICES PROVIDED TO THE BUYER; AND (V) ANY PRODUCT THAT HAS BEEN DAMAGED OR MODIFIED IN ANY WAY AS A RESULT OF ANY ACCIDENT, NEGLIGENCE, OR USE IN ANY APPLICATION OTHER THAN THAT FOR WHICH IT WAS ORIGINALLY DESIGNED OR INTENDED FOR OR IN ENVIRONMENTAL CONDITIONS OUTSIDE OF THE PRODUCT’S DESIGN TOLERANCE. IN THE EVENT THAT THERE IS A FINDING OF LIABILITY THAT IS CONTRARY TO THE FOREGOING, ANY AND ALL CLAIMS, LOSSES, DAMAGES, LIABILITIES, EXPENSES, COSTS AND CHARGES WHATSOEVER, (INCLUDING REASONABLE LEGAL FEES) (“CLAIMS”) SHALL NOT EXCEED IN AGGREGATE FOR ALL CLAIMS UNDER THIS AGREEMENT: (I) THE FEES PAID FOR THE PRODUCT AND (II) THE AMOUNT PAID OR PAYABLE BY BUYER TO SELLER FOR THE SUPPORT SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE EVENT THAT GAVE RISE TO SUCH CLAIMS.
10. Injunctive Relief: Each Party acknowledges that any event that results in a material breach of this Agreement may cause irreparable harm and significant injury to an extent that may be extremely difficult to ascertain. Accordingly, each Party agrees that the other Party may have, in addition to any other rights or remedies available to it at law or in equity, the right to seek injunctive relief to enjoin any material breach.
12. Force Majeure: Seller shall not be liable for any delays in the delivery of orders, due in whole or in part, directly or indirectly, to fire, pandemics, act of God, strike, shortage of raw materials, supplies or components, retooling, upgrading of technology, delays of carriers, embargo, government order or directive, or any other circumstance beyond Seller reasonable control (each a, “Force Majeure Event”). In the event of a Force Majeure Event, notwithstanding anything to the contrary, the Seller may change any prices for any of its Services.
13. Association: During and following the term of this Agreement, Seller may identify the Buyer as a client of the Seller.
14. Indemnification Against Infringement: The Buyer warrants that any instructions, materials, plans or designs furnished or given by it shall not be such as will cause the Seller to infringe any letters patent, copyright, registered design, right of confidence or trade mark in execution of the Buyer’s order and agrees to indemnify the Seller against all claims, costs or other expenses incurred by the Seller in respect thereof.
15. Indemnification: Subject to the Limitation of Liability provisions herein, Buyer shall indemnify and hold harmless Seller its affiliates, directors, officers, agents and employees from all losses, claims, damages, expenses or liabilities of any kind (including attorney’s fees and court costs) resulting from or arising out of any use by Buyer of the Products or Services purchased herein.
16. Repairs, Alterations and Modifications: Any repairs made to the products shipped by the Seller shall be at the expense of the Buyer unless specifically authorized by the Seller in writing. Alterations or modifications to the product involving welding, soldering, drilling or machining by the Buyer are not permitted or approved by the Seller without specific authorization in writing by the Seller. Any unauthorized alterations or modifications by the Buyer will void the warranty.
17. Warranty: Seller warrants its product against defects in workmanship and material for a period (see specific product warranty period as set out in the applicable Sales Order) from the date of shipment from Seller or Seller’s distributor. Warranty applies under normal use and service and otherwise when such products are used in accordance with instructions furnished by Seller and for purposes disclosed in writing at the time of purchase, if any. Seller’s liability under this warranty shall be limited to repair or replacement, F.O.B point of distribution, of any defective products or part which, having been returned to the factory with transportation charges prepaid, has been inspected and determined by the Seller to be defective. Under no circumstances shall the Seller be liable to Buyer or any other third party for any loss of profits or other direct or indirect costs, expenses, losses or consequential damages arising out of or as a result of any defects in or failure of its products or any part or parts thereof or arising out of or as a result of parts or components incorporated in Seller’s products but not supplied by the Seller.
18. Intellectual Property
a) Seller’s Property. The Buyer acknowledges and understands that the Seller owns all right, title and interest in: (a) the Product and Data Services and all improvements, enhancements, modifications thereto, and any associated data files; (b) any and all designs, schematics, methodology, know-how, and technical documentation disclosed by the Seller to the Buyer relating to the Product or Services; (c) all advertisements; sponsored content; and intellectual property associated with the Product which the Buyer may have access to when using the Product; (d) any Confidential Information of the Seller shared with the Buyer; and (e) any additional materials, data, software, information, schematics, or designs that are shared with the Buyer in connection with this Agreement.
b) Seller Collection and Analysis of Data. The Seller shall have the right to collect and analyze data and other information stemming from the Data Services relating to the provision, use and performance of various aspects of the Product and related systems and technologies (the “Seller Data”) provided that such Seller Data may not include any data of the Buyer (with the exception of certain applicable location information) other than to provide certain audit services to improve product offerings and provide the Buyer with options to improve and make the Services more efficient, in which case such the Buyer’s data shall not be shared externally and shall be included solely in aggregate, anonymous, and de-identified form that is in no way identifiable with the Buyer, or any personal information related to the Buyer’s data, for the purpose of improving the Product and identifying potential opportunities to the Buyer, and Seller will be free (during and after the term of this Agreement) to use such information and data to improve and enhance the Product and for other development, diagnostic and improvement purposes in connection with the Services and other offerings of the Seller. Any data collected by the Seller in accordance with this section shall be owned by the Seller and shall be considered Confidential Information of the Seller.
c) Know-How. Subject to the provisions hereof respecting confidentiality and intellectual property, the Seller shall be free to use any ideas, concepts or know-how developed or acquired by the Seller during the provision of the Product under this Agreement to the extent obtained and retained by the Seller’s personnel as impressions and general learning (the “Know-How”). Nothing in this Agreement shall be construed to preclude the Seller from enhancing the Product based on the accumulation of Know-How.
19. Representations and Warranties
Buyer represents and warrants that:
a) the execution of this Agreement by Buyer and the performance of its obligations hereunder will not constitute a violation or breach of any obligation of any agreement between Buyer and any third party;
b) it will cooperate with Seller’s reasonable requests for information and direction, and on a timely basis will provide Seller with all materials required to complete the work/Services set out in the applicable Sales Order;
c) it will not cause any of the following events, whether individually or collectively (each shall be a material breach of this Agreement):
(i) any disclosure of Seller’s Confidential Information to any third party, unless otherwise referenced herein or upon the Seller’s written consent; or
(ii) any breach or unauthorized disclosure of any intellectual property pursuant to Section 19 hereof.
21. Term: The term of this Agreement shall commence on the Effective Date and shall continue until the fulfillment of the applicable Sales Order by the Seller or until this Agreement is terminated in accordance with the Termination provisions herein (the “Term”).
22. Termination: At the Seller’s discretion, the Seller may terminate this Agreement with Buyer immediately at any time and for any reason including, but not limited to:
a) a Buyer material breach of the Agreement, including failure to make payments when due;
b) in the event that any amounts payable by the Buyer remain unpaid;
c) if the Buyer has not adhered to any or all the provisions of the Agreement (such as a failure to pay fees when due) or if it appears that Buyer does not intend to or is unable to comply with the terms of the Agreement, such determination to be made solely at the Seller’s discretion;
d) if the Seller is required to terminate the relationship by law; or
e) if provision of the Product is no longer commercially viable for the Seller.
23. Effect of Termination: Upon termination of the Agreement, Buyer shall pay Seller for all Support Services-based fees for work performed until and including the date of termination. Any pre-paid Support Services-based fees for work not performed shall be refunded to the Buyer. The Buyer acknowledges and agrees that there are no refunds whatsoever for the sale of the Product to the Buyer.
24. Severability: If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
25. Assignment: This Agreement is not assignable, transferable or sublicensable by either Party except with the other Party’s prior written consent, such consent not to be unreasonably withheld.
26. Entire Agreement: This Agreement is the most recent agreement between the Parties, superseding all previous written and oral agreements relating to the subject matter of this Agreement. The provisions of a Sales Order may contain additional terms than in this Agreement, and will control over any conflicting provisions except to the extent that a provision of this Agreement and schedules specifically states that a Sales Order may not provide different terms.
27. Amendments: All waivers and modifications must be in a writing signed by both Parties.
28. Notices: All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Such notices or consents shall be directed to the individuals and addresses that the Parties may specify to each other from time to time in accordance with this provision.
29. Survival: The provisions in this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
30. Dispute Resolution: The Parties agree that any and all disputes arising from, connected with, or relating to this Agreement, including disputes relating to the interpretation of this Agreement and each Party’s obligations under it, will be resolved as follows:
31. Governing Law: The laws of the Province of Ontario and applicable federal laws of Canada shall govern the validity and construction of this Agreement, and the enforcement of any arbitration awards or any procedural matters relating to arbitration or any interim measures sought during the arbitration process shall attorn to the exclusive jurisdiction of the courts of Ontario, without regard to any principle of conflict of laws that would result in the application of the laws of any other jurisdiction.
32. General: Seller reserves the right to make changes in design at any time without incurring any obligation to make such changes in any items previously purchased, whether or not delivered. Buyer is responsible for complying with all laws and regulations applicable to the purchase, export or import of the product of any state or country. The failure of the Seller to enforce at any time any of the provisions of this contract, to exercise any election or option provided herein or to require at any time performance by Buyer of any of the provisions herewith shall in no way be construed to be a waiver of any such provisions or the right of Seller thereafter to enforce each and every provision.
33. Counterparts: This Agreement may be executed in counterparts and by means of facsimile or electronic signature. Each of the counterparts, when so executed and delivered, shall be an original, but such counterparts shall together constitute one and the same agreement.