100% Canadian Owned & Operated
This Agreement is prepared by RACKsteel Material Handling Ltd. (the “Seller”) for the “Client” (client name as stated on the sales order) and together with the Seller, the “Parties” as of the day of signed sales order (the “Effective Date”) for the purchase and sale of the Equipment and/or the engagement of the Seller to perform the Services (as hereinafter defined). This Agreement is governed by and subject to the Purchase and Services Terms and Conditions (the “Terms and Conditions”) attached as Schedule “A” to this Agreement.
RACKsteel Material Handling Ltd. (hereinafter called the Seller) shall not be bound by any conditions; warranties or representations, as herein contained, unless the same are in writing and signed by a duly authorized officer. These terms and conditions shall apply to sales from Seller to Buyer (end user, purchaser) and to any quotation by the Seller. These terms and conditions shall not be superseded by any terms and conditions in the Buyer’s purchase order.
Pricing: All quotations are in Canadian funds unless otherwise specified and cover only supply of materials and equipment as outlined in our quotation.
This estimate is formulated on a best endeavors basis. On engineering extra anchors, special (epoxy) anchors and/or hold down clamps, frame and beam thickness may be required / adjusted to meet safety and capacity requirements and billed extra. This estimate is based on a preliminary assessment, and the pricing may change depending on further review and the aforementioned factors.
Valid Pricing: Unless otherwise specified and if not accepted by the Buyer within Ten (10) days from the date of this quotation the Sellers quotation shall be void.
Payment: Seller’s prices are F.O.B. point of shipment, freight to destination is extra, unless otherwise specified. Terms of Payment are set out in the proposal. If not, default terms: Material, installation, delivery, and engineering services are due on invoice. A down payment will be required unless otherwise specified for large-scale projects.
Taxes & Freight: Buyer shall be responsible for applicable local taxes, Canadian or American, Government, State or Municipal as well as freight bill unless otherwise specified, in addition to any listed specifically as part of the quotation.
THESE TERMS AND CONDITIONS OF THE AGREEMENT ARE BINDING TERMS AND CONDITIONS GOVERNING ALL QUOTATIONS PROVIDED BY THE SELLER TO THE CLIENT UNLESS OTHERWISE STATED TO THE CONTRARY. IT IS IMPORTANT FOR THE CLIENT TO CAREFULLY REVIEW AND UNDERSTAND THE PROVISIONS STATED HEREIN AS BY PURCHASING MATERIALS FROM THE SELLER OR ENGAGING THE SELLER’S SERVICES, THE CLIENT CONSENTS TO BE BOUND BY THESE TERMS AND CONDITIONS. THE SELLER RESERVES THE RIGHT TO MAKE AMENDMENTS TO THE TERMS AND CONDITIONS FROM TIME TO TIME IN ACCORDANCE WITH THESE TERMS AND CONDITIONS.
WHEREAS, The Agreement between the Parties consists of the terms and conditions contained in the Agreement, these Terms and Conditions, and any Exhibits attached to the Agreement.
THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, upon the terms and the conditions set forth in these Terms and Conditions and intending to be legally bound, the Parties agree as follows:
1.1 “Affiliate” has the meaning ascribed to such term in the Business Corporations Act (British Columbia).
1.2 “Agreement” means the Agreement to which these Terms and Conditions apply.
1.3 “Applicable Laws” means the common law and any and all laws, statutes, enactments, by-laws, regulations, rules, orders, directives, policies, permits, licenses, codes, and rulings of any government, and any ministries, agencies, board, commission, or tribunal of any government.
1.4 “Business Day” means any day that is not a Saturday, Sunday, or statutory holiday observed in the Province of British Columbia.
1.5 “Client” means the individual, corporation, or other legal entity that engages the Seller to complete the Project or purchases from the Seller of the Materials and/or Machinery.
1.6 “Effective Date” means the date set out in the Agreement.
1.7 “Engineering and Design” means a Service provided by the Seller that may include contracting with third-party engineers that perform pallet racking design, structural engineering, concrete slab and geotechnical, racking inspections, and pallet rack permitting.
1.8 “F.O.B. Shipping Point Designation” means such address provided by the Seller as the F.O.B. Shipping Point Designation in the Agreement, which will be considered the point at which the title and risk of loss of the Materials and/or the Machinery transfers from the Seller to the Client.
1.9 “Installation” means a Service provided by the Seller for the Client, to install the Materials at the Worksite subject to these Terms and Conditions.
1.10 “Machinery” means machinery purchased by the Client as set out in the Agreement. Such machinery may include forklifts, lift trucks, and other material handling equipment.
1.11 “Materials” means the products purchased by the Client as set out in the Agreement. Such products may include machinery, pallet racking, cantilever racking, high density shelving systems, safety equipment, material handling products, and any other materials required to complete the Project. The Materials are more particularly described in the Agreement.
1.12 “Parties” means the Seller and the Client and any other party to the Agreement.
1.13 “Personnel” means individuals, employees, subcontractors, Affiliates, or other persons involved with the fulfillment of the obligations of the Seller and the Client under the Agreement.
1.14 “Plans and Specifications” means the documents that provide a comprehensive outline of the Project’s requirements, design, and Installation specifications.
1.15 “Prime Rate” means, at any time, the annual rate of interest at such time by the main branch in Vancouver, British Columbia of the Seller’s primary financial institution as a reference rate of interest for Canadian dollar loans made by it in Canada to customers of varying degrees of creditworthiness and designated by it as its “prime rate”.
1.16 “Project” means the Client’s specific undertaking or endeavor that involves the supply of the Materials and/or Machinery and/or the engagement of the Seller to perform the Services.
1.17 “Quotation” or “Quote” means the quotation provided in the Agreement of the estimated Purchase Price for the Project.
1.18 “Removal” means a Service provided by the Seller for the removal, relocation, teardown, and/or disposal of Materials.
1.19 “Seller” means RACKsteel Material Handling Ltd., a company incorporated under the laws of the Province of British Columbia.
1.20 “Services” means, all elements of the activities to be performed by or on behalf of the Seller as set out in the Agreement, whether or not specifically described herein, and may include, as applicable: Installation of Materials; tear down, relocation, and disposal of Materials; repair of Materials; project management; contract installations; Engineering and Design; and any other service provided by the Seller for the Client from time to time.
1.21 “Solution” means the Materials, Services, deliverables, timelines, and other essential details of the Project as set out in the Agreement.
1.22 “Standby Charge” means the standard and/or overtime hourly rate per worker scheduled to attend the Worksite on the Services Date.
1.23 “Subcontractor” means any person or company engaged by the Seller or another Subcontractor to perform any part of the Services.
1.24 “Taxes” means goods and services tax, harmonized sales tax, provincial sales tax, service, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, provincial, territorial, or local governmental entity or regulatory authority from time to time.
1.25 “Worksite” means any location at which the Materials and/or Machinery are delivered, or the Services are performed.
2.1 Scope. The Agreement, these Terms and Conditions, and any attached Exhibits set forth the terms and conditions for the Client’s purchase of and entitlement to the Materials and/or Machinery and/or the Services.
2.2 Term. The term (the “Term”) of the Agreement commences on the Effective Date and continues until, as applicable the Materials and/or the Machinery are delivered or collected and/or the Services are completed, unless earlier terminated pursuant to these Terms and Conditions.
3.1 Due Diligence. If the Agreement is for the purchase of Machinery, the Client is invited, urged, and cautioned to confirm that the Machinery is fit for the Buyer’s intended purpose and that the Buyer and its Personnel are otherwise able to comply with the safety specifications of the Machinery.
3.2 Change Orders. If the Client wishes to amend the Materials and/or the Machinery and/or the Services set out in the Agreement, the Seller will prepare a separate Agreement, which will replace and supersede the original Agreement to the extent that it contradicts the original Agreement.
3.3 Shipment. Unless expressly agreed between the Parties in writing, the Seller will select the method of shipment of, and the carrier for, the Machinery and/or the Materials. The Seller may, in its sole discretion, without liability or penalty, make partial shipments of the Materials to the Client.
3.4 Delivery. Unless expressly agreed to by the Parties the Seller will deliver the Materials to the Worksite, using the Seller’s (or manufacturer’s, as the case may be) standard methods for packaging and shipping; and the Client is responsible for receiving and unloading the Materials and/or Machinery, including ensuring the delivery vehicle has access to the Worksite (i.e. receiving bays and loading docks).
3.5 Freight Lead Times. The Seller will use commercially reasonable efforts to monitor freight lead times. The Client acknowledges and agrees that any freight lead times communicated by the Seller to the Client is an estimate and is subject to change at no penalty to the Seller.
3.6 Late Delivery. Any delivery date (the “Delivery Date”) quoted by the Seller is an estimate only. The Seller is not liable for or in respect of any loss or damage arising from any delay in filling any order, failure to deliver, or delay in delivery. No delay in delivery relieves the Client of its obligations under the Agreement, including accepting delivery of the Materials. If the Client requests a delayed Delivery Date, the Client will be obligated to pay to the Seller the Purchase Price as if the Materials was delivered on the Delivery Date. Any expenses incurred by the Seller resulting from a delay under this Section 3.5 will be payable by the Client.
3.7 Title & Risk of Loss. Unless otherwise specified in the Agreement, title to the Materials and/or the Machinery will pass to the Client, and the Client will bear the risk of loss of damage to the Materials and/or the Machinery when the Materials and/or the Machinery are passed from the Seller to the carrier of the Materials and/or the Machinery for delivery in accordance with the F.O.B. Shipping Point Designation.
3.8 Worksite Requirements. The Client agrees to provide to the Seller access to a receiving area or loading dock during regular business hours; sufficient power, heating, and lighting to safely perform the Services; if applicable, level concrete floor slab that is capable of bearing the load of the Materials and/or the Machinery, is free of gas, electric, and/or other in-ground obstacles that may be affected by anchoring pallet rack to the floor; and an area free and clear of all debris and other hazards for the safe and efficient performance of the Services.
3.9 License. Subject to the Solution and any limitations set out in the Agreement, the Client grants to the Seller a license to enter and be upon the Worksite during the Term to perform the Services required to be performed at the Worksite.
3.10 Standby Charge. A Standby Charge may be charged by the Seller to the Client if the Client fails to provide to the Seller a minimum of 3 Business Days of a delay in the Services Date; or the Worksite is unsuitable or unavailable for the performance of the Services on the Services Date (as hereinafter defined).
3.11 Engineering. If the Client engages the Seller to perform engineering services, these Terms and Conditions will apply in addition to the Exhibits attached to the Agreement as applicable. In the event of a conflict between such Exhibits and these Terms and Conditions, the Exhibits will apply.
4.1 Purchase Price. The Purchase Price for the Materials and/or the Machinery and/or the Services is set out in the Agreement. If the Client does not accept the Purchase Price within 10 days of the Effective Date, the Purchase Price will be null and void. The Purchase Price for all Services and Materials required for the Project are an estimate only and may be subject to change. The estimated Purchase Price for the Services assumes that the Seller has complied with Section 3.8 of these Terms and Conditions. If the Worksite is deficient, additional charges will apply. THE PURCHASE PRICE IS EXCLUSIVE OF ALL TAXES. THE TAXES ARE IN ADDITION TO AND ARE PAYABLE BY THE CLIENT.
4.2 Shipping. The Client agrees to pay to the Seller all shipping and delivery charges including applicable insurance unless otherwise provided in the Agreement.
4.3 Payment Terms. The Seller will issue to the Client an invoice (the “Invoice”) outlining the Purchase Price for the Machinery, Materials, Services, applicable Taxes, and any other amounts payable pursuant to the Agreement. The Client will make all payments in Canadian dollars by cheque, direct deposit, or wire transfer.
4.4 Payment Schedule. The Client will pay the Seller a sum equal to 100% of the Purchase Price of the Machinery and/or Materials prior to shipment of the Machinery and/or Materials; a sum equal to 50% of the Services within 7 days of the date of the Invoice (the “Services Deposit”). Once the Services Deposit is received by the Seller, the Client may reserve a date for performance of the Services (the “Services Date”); and the balance of the Purchase Price without any rights of set-off whatsoever, will be paid within 7 days of the Seller notifying the Client of completion of the Project.
4.5 Invoice Disputes. The Client must notify the Seller in writing of any dispute with any amount in the Invoice (the “Dispute”). The Dispute must set out or include, as applicable, substantiating documentation supporting the Dispute; and be delivered to the Seller within 7 days of the date of the Invoice. The Client is deemed to have accepted the Invoice if the Seller does not receive timely notification of the Dispute and will pay to the Seller all amounts due and owing pursuant to the Invoice within the period set forth in Section
4.4. The Parties will seek to resolve any Dispute expeditiously and in good faith. If the Parties cannot resolve the Dispute within 30 days from the date of the Invoice, the Parties will resolve the Dispute pursuant to Article 12 of these Terms and Conditions.
4.6 Late Payments. Except for any amounts the Client has successfully disputed pursuant to Section 4.5 the Client will pay interest on all late payments, calculated daily and compounded monthly at the Prime Rate plus 3% applied thereon. The Client will reimburse the Seller for all costs incurred in collecting any late payments including legal fees. In addition to all other remedies available under these Terms and Conditions or at law, IF THE CLIENT FAILS TO PAY THE PURCHASE PRICE WHEN DUE, THE SELLER MAY IMMEDIATELY SUSPEND DELIVERY OF THE MATERIALS AND/OR MACHINERY OR PERFORMANCE OF THE SERVICES AS APPLICABLE; AND TERMINATE THE AGREEMENT.
4.7 Security Interest. The Client hereby grants to the Seller a security interest in all Machinery and/or Materials purchased hereunder to secure the Client’s payment obligations under the Agreement and these Terms and Conditions. The Client acknowledges that the security interest granted under this Section 4.7 is a purchase money security interest under applicable British Columbia law. The Client hereby authorizes the Seller to file or record record any document necessary to perfect, continue, amend, or terminate its security interest in the Machinery and/or Materials, including, but not limited to, any financing statements, including amendments, authorized to be filed under the Personal Property Security Act then in effect in British Columbia. To the extent permitted by law, the Client hereby waives its right to receive a copy of any financing statement, financing change statement, or verification statement filed or received by or on behalf of the Seller in connection with the Seller’s interest in the Materials.
4.8 Lien Holdback. If the Client engages the Seller only for the supply of Machinery and/or Materials, the Client may not withhold any part of the Purchase Price from the Seller for the purpose of a lien holdback pursuant to the Builders Lien Act then in effect in British Columbia. If the Client engages the Seller to perform the Services, it may not holdback from the Purchase Price an amount that is greater than the minimum holdback amount required pursuant to the Builders Lien Act then in effect in British Columbia
5.1 Returns & Exchanges. All Machinery and/or Materials purchased by the Client from the Seller pursuant to the Agreement will become the sole property of the Client and will not be accepted by the Seller for return. The Seller may, in its sole and absolute discretion, accept exchanges of Machinery and/or Materials within 3 days from the date of delivery or collection, as applicable, provided the Machinery and/or Materials are in the original packaging.
5.2 Cancellation. The Client may cancel any order of Machinery and/or Materials or engagement of Services prior to executing the Agreement. Once the Agreement is executed or any Plans and Specifications have been approved, cancellation will be subject to a cancellation fee of 50% of the total Purchase Price. The Seller may, without liability or penalty, cancel any order of Machinery and/or Materials or engagement of Services if the Seller determines that the Client is in violation of its payment obligations or has breached or is in breach of the Agreement or these Terms and Conditions; or pursuant to the Seller’s rights under Section 9.1.
6.1 Exclusive Remedy for Defective Materials or Services. The Client will notify the Seller of any alleged claim or defect within 7 Business Days from the date the Client discovers, or upon reasonable inspection would have discovered, such alleged claim or defect, but in any event before the expiration of the Warranty Period. The Seller will inspect the alleged defect, and if such inspection reveals that the Machinery, the Materials, or the Services is defective, and such defect has not been caused or contributed to by the Client, the Seller will repair, replace, or rectify such defective Machinery and/or Materials and/or Services, as applicable. The Seller’s liability for the Services, the Materials, or the Machinery deemed defective by the Seller will be confined solely to the replacement, repair, or rectification of the defective Machinery and/or Materials and/or Services, as applicable. Any repairs performed by the Client without written consent from the Seller will not be accepted and may render the warranty null and void. THIS ARTICLE 6 SETS OUT THE CLIENT’S SOLE REMEDY AND THE SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH HEREIN.
6.2 Third-Party Products. Products manufactured by a third-party (the “Third-Party Product”) may contain, be contained in, incorporated into, attached to, or packaged together with the Machinery and/or Materials. The Third-Party Products are not covered by the Seller’s warranty. For the avoidance of doubt, the Seller makes no representations or warranties with respect to any Third-Party Product.
6.3 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 7.1 THE SELLER MAKES NO CONDITION OR WARRANTY WHATSOEVER WITH RESPECT TO THE MACHINERY, THE MATERIALS OR THE SERVICES, INCLUDING ANY CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE AND CONDITION OR WARRANTY OF TITLE.
6.4 Limited Liability.
a. NEITHER PARTY WILL BE LIABLE FOR ANY LOST PROFITS (WHETHER DIRECT OR INDIRECT), LOST REVENUE, LOST SAVINGS, LOSS OF GOODWILL OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR OTHER SPECIAL DAMAGES SUFFERED BY THE OTHER PARTY, ITS CUSTOMERS, OR OTHERS ARISING OUT OF OR RELATED TO THE AGREEMENT, FOR ALL CAUSES OF ACTION OF ANY KIND (INCLUDING TORT (INCLUDING NEGLIGENCE), CONTRACT, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, AND BREACH OR FAILURE OF WARRANTY) EVEN IF THE APPLICABLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b. IN NO EVENT WILL EITHER PARTIES’ TOTAL AGGREGATE LIABILITY IN CONNECTION WITH THE AGREEMENT, FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING TORT (INCLUDING NEGLIGENCE), CONTRACT, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, AND BREACH OF WARRANTY, CONDITION REPRESENTATION, OR OTHER TERM, EXCEED THE TOTAL AMOUNT PAID BY THE CLIENT PURSUANT TO THE AGREEMENT.
c. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE CLIENT ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY MACHINERY OR MATERIALS IN THE PRACTISE OF ANY PROCESS, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS, OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY THE SELLER, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE MACHINERY AND/OR THE MATERIALS.
6.5 Survival. The Client agrees that the limitations of liability and disclaimers of warranty set forth in these Terms and Conditions will apply regardless of whether the Client has tendered delivery of the Machinery and/or the Materials or whether the Services are complete.
7.1 Indemnification. Subject to the Agreement and to these Terms and Conditions governing the Agreement, the Parties (each, an “Indemnifying Party“) will indemnify, defend, and hold harmless the other Party and its, Personnel, officers, directors, employees, agents, Affiliates, successors, and permitted assigns (collectively, “Indemnified Party“) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees, fees, and the costs of enforcing any right to indemnification pursuant to the Agreement and these Terms and Conditions and the cost of pursuing any insurance providers, awarded against the Indemnified Party in a final judgment (collectively, the “Losses”), arising out or resulting from any claim of a third-party or Party alleging material breach or non-fulfilment of any representation, warranty, or covenant set forth in these Terms and Conditions by the Indemnifying Party or its Personnel; any negligent or more culpable act or omission of the Indemnifying Party or its Personnel (including any recklessness or wilful misconduct) in connection with the performance of its obligations under the Agreement and these Terms and Conditions; any bodily injury, death of any person, or damage to real or tangible personal property caused by the wilful or negligent acts or omissions of the Indemnifying Party or its Personnel; or any failure by the Indemnifying Party or its Personnel to comply with any Applicable Laws.
Notwithstanding anything to the contrary contained herein, this Section 9.1 does not apply to any claim (direct or indirect) for which a sole or exclusive remedy is provided for under another section of these Terms and Conditions.
7.2 Exceptions and Limitations on Indemnification. Notwithstanding anything to the contrary in these Terms and Conditions, the Indemnifying Party is not obligated to indemnify or defend the Indemnified Party against any claim (direct or indirect) if such claim or corresponding Losses arise out of or result from the Indemnified Party’s or its Personnel’s negligence or more culpable act or omission (including recklessness or wilful misconduct); bad faith failure to materially comply with any of its material obligations set forth in these Terms and Conditions; or use of the Machinery and/or the Materials in any manner inconsistent with the Machinery and/or the Materials’ proper use or purpose.
7.3 Exclusive Remedy. ARTICLE 9 SETS OUT THE ENTIRE LIABILITY AND OBLIGATION OF EACH INDEMNIFYING PARTY AND THE SOLE AND EXCLUSIVE REMEDY FOR EACH INDEMNIFIED PARTY FOR ANY LOSS COVERED BY THIS ARTICLE 9.
8.1 Seller’s Right of Termination. The Seller may terminate the Agreement upon written notice to the Client if the Client fails to pay any amount when due under the Agreement or these Terms and Conditions and such failure continues for 5 days; if the Client breaches any provision of the Agreement or these Terms and Conditions (other than its payment obligations) and either the breach cannot be cured or, if the breach can be cured, it is not cured by the Client within 10 days after notice of such breach; if the Client becomes insolvent or admits its inability to pay its debts generally as they become due; or upon the occurrence of a Force Majeure Event pursuant to Section 13.5 of these Terms and Conditions.
8.2 Client’s Right to Terminate. The Client may terminate the Agreement upon written notice to the Seller if the Seller materially breaches any material provision of the Agreement or these Terms and Conditions and the breach cannot be cured within 10 days after notice of such breach; or upon the occurrence of a Force Majeure Event pursuant to Section 13.5 of these Terms and Conditions.
8.3 Effect of Termination. Expiration or termination of the Agreement will not affect any rights or obligations of the Parties that come into effect upon or after expiration or termination or otherwise survive the expiration or termination as set out in the Agreement or these Terms and Conditions. Termination of the Agreement automatically operates as a cancellation of any deliveries of Machinery and/or Materials to the Client that are scheduled to be made after the effective date of termination. With respect to any Machinery and/or Materials that are still in transit upon termination of the Agreement, the Client must refuse such delivery and instruct the Machinery and/or the Materials to be returned to the Seller. Upon termination of the Agreement, the Seller will provide to the Client an invoice outlining all expenses incurred from the Effective Date to and including the effective date of termination (the “Expenses Invoice”). If the Seller disputes the sums set forth in the Expenses Invoice, the Client may dispute the Expense Invoice in accordance with Section 4.5 of these Terms and Conditions.
9.1 Compliance with Laws. At all times during the Term, the Client will comply, and will cause its Personnel to comply, with all Applicable Laws applicable to the Agreement, the Client’s performance of its obligations hereunder, and the Client’s use of the Machinery and/or the Materials. Without limiting the generality of the foregoing, the Client will, at its own expense, maintain all certifications, credentials, licenses, and permits necessary to conduct its business relating to the purchase or use of the Machinery and/or the Materials; and not engage in any activity or transaction involving the Machinery and/or the Materials, by way of shipment, use, or otherwise, that violates any Applicable Law.
9.2 Insurance. Each Party covenants and agrees with the other that during the Term of the Agreement and as otherwise indicated in these Terms and Conditions, it will at its sole cost and expense, procure and maintain without lapse all forms of insurance as required by Applicable Laws, rules, and regulations, necessary to adequately insure its respective performance of the duties hereunder and the indemnity provisions contained herein. Such insurance will include, but will not be limited to Commercial general liability in a sum no less than $5,000,000.00; insurance for any Equipment used in the performance of the Services; and automobile insurance in a sum no less than $5,000,000.00.
Upon the Seller’s request, the Client will provide to the Seller a certificate of insurance evidencing the insurance coverage required by these Terms and Conditions. The certificate of insurance will, if requested by the Seller, name the Seller as an additional insured. The Client will provide to the Seller 15 days’ advance written notice in the event of a cancellation or material change in the Client’s insurance policy. Except where prohibited by law, the Client will require its insurer to waive all rights of subrogation against the Seller’s insurers and the Seller.
9.3 Engineering & Permits. The following are all the responsibility of the Client: any costs relative to the application and preparation of engineered drawings, documentation, and obtaining necessary Building, Tenant, and/or Occupancy Permits; building fixtures such as sprinkler equipment, slab, and geotechnical; and ensuring the Materials set out in the Solution are suited for the Worksite and the Project. The Seller may engage engineers to assist with permit application services if specified in the Agreement provided that all building documentation is provided by the Client. Any costs incurred by the Seller in making alterations due to the Client providing to the Seller inaccurate dimensions, data, design, Machinery or equipment will be charged to the Client. In the event of discrepancy between drawings and the list of Materials, the list of Materials will govern. Capacities are taken as the maximum recommended uniformly distributed static load as per the engineer. For permit applications, an additional charge of 40% will be applied in addition to the city’s processing fee if RACKsteel is required to remit payment on customer’s behalf. In certain cases, clients can provide a cheque made payable to City Hall, which RACKsteel Material Handling will submit on their behalf, subject to municipal guidelines. For further details and information on which municipalities accept prepared cheques, please contact your sales representative.
9.4 Operating Qualifications. The Client represents and warrants to the Seller that each operator of purchased Machinery will be fully qualified and licensed to use such Machinery. The Seller is not under any obligation to provide training and instruction on the operation of the Machinery to the Client or its Personnel.
10.1 Notice. In the event of any dispute between the Client and the Seller in connection with the Project (the “Dispute”), either Party must give to the other written notice adequately identifying the matters that are the subject of the Dispute.
10.2 Parties to Confer. Within 14 days of the service of a notice of Dispute, the Parties must confer at least once to attempt to resolve the Dispute and failing resolution of the Dispute to explore alternative methods of resolving the Dispute (the “Resolution Conference”). At any such Resolution Conference each Party must be represented by a person having authority to agree to a resolution of the Dispute.
10.3 Arbitration. If the Dispute is not resolved at the Resolution Conference, the Parties may, by mutual agreement, refer the Dispute to arbitration pursuant to the Arbitration Act then in effect in British Columbia.
13.1 Notices. Notices and other communications under these Terms and Conditions will be in writing and sent with proof of delivery required, addressed to the other Party at its address as set out in the Agreement provided that either Party may change its address by written notice thereof.
13.2 No Waiver. All rights and remedies, whether conferred hereunder, or by any other instrument or Law, will be cumulative and may be exercised singularly or concurrently. Failure by either Party to enforce any term will not be deemed a waiver of future enforcement of that or any other term.
13.3 Entire Agreement. The Agreement, these Terms and Conditions, and any Exhibits attached thereto constitute the complete and exclusive agreement between the Parties pertaining to the subject matter hereof and supersedes and replaces in their entirety any and all written or oral agreements previously existing between the Parties with respect to such subject matter.
13.4 Jurisdiction. The Agreement is governed by the laws of British Columbia and the federal laws of Canada applicable therein. Each Party irrevocably submits to the exclusive jurisdiction of the courts of British Columbia and waives any objection to the venue of any legal process on the basis that the
process has been brought in an inconvenient forum.
13.5 Force Majeure. No Party will be liable or responsible to the other Party, nor be deemed to have defaulted under or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement (except for any obligations of the Client to make payments to the Seller), when and to the extent such failure or delay is caused by or results from acts beyond the reasonable control of the impacted party’s (the “Impacted Party”) control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (i) acts of God; (b) flood, tsunami, fire, earthquake, or explosion; (c) epidemics, pandemics; (d) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (e) government order, law, or actions; (f) embargoes, or blockades in effect on or after the date of the Agreement; (g) national or regional emergency; (h) strikes, labour stoppages or slowdowns, or other industrial disturbances; (i) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; (j) failure of any governmental or public authority to grant a necessary license or consent; and (k) other events beyond the control of the Impacted Party. The Impacted Party will give notice within 3 days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party will use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party will resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of 30 days following written notice given by it under this Section 13.5 the other Party may thereafter terminate the Agreement upon 5 days’ written notice.
13.6 Assignment. Neither Party may assign the Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, the Seller reserves the right to engage subcontractors from time to time for the performance of the Services.
13.7 Independent Contractor. The relationship between the Seller and the Client is that of independent contractor and will not be construed to be one of employment, partnership, joint venture, agency, or similar relationship. Neither Party will have, nor represent that it has, any power, right, or authority to bind the other Party, or to assume or create any obligation or responsibility, express or implied, on behalf of the other Party. Each Party will be entirely responsible for the Personnel, people, subcontractors, and workers it will employ, engage, and/or contract for purposes of the Agreement, including any related labour and/or CPP and other payment matters.
13.8 Headings. The headings provided in these Terms and Conditions are for convenience only and will not be used in interpreting or construing these Terms and Conditions.
13.9 Amendment. No amendment to the Agreement or these Terms and Conditions will be valid unless made in writing and signed by all Parties.
13.10 Time. Time will be of the essence of the Agreement.
13.11 Survival. The Parties agree that their respective rights, obligations, and duties that, by their nature extend beyond the expiration or termination of the Agreement, will survive any expiration of termination of the Agreement.
13.12 Severability. If any term or provision of the Agreement or these Terms and Conditions will be found to be invalid, illegal, or otherwise unenforceable, such finding will not affect the other terms or provisions of the Agreement or these Terms and Conditions, or the whole of the Agreement or these Terms and Conditions, but such term or provision will be deemed modified to the extent necessary to render such term or provision enforceable, and the rights and obligations of the Parties will be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements of the Parties set forth in the Agreement or these Terms and Conditions.
13.13 Counterparts. The Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will be deemed to be one and the same agreement. A signed copy of the Agreement delivered by e-mail or other means of electronic transmission will be deemed to have the same legal effect as delivery of an original signed copy of the Agreement.
12.1 Recitals. The following relate to and are integral to this Article 5:
a. The Parties hereby agree that the Seller has agreed to supply and affix, or install, affixed machinery or improvements to real property situated in British Columbia for, or at the request of, the Client.
b. For the purposes of fulfilling its obligations under the Agreement, the Seller has agreed to purchase tangible personal property (the “Tangible Personal Property”) at a sale in British Columbia for the Purchase Price more particularly described in in the Agreement (the “Tangible Personal Property Purchase Price”).
c. The Parties anticipate that the Tangible Personal Property will be used by the Client in such a manner that the Tangible Personal Property will cease to be personal property at common law.
d. The Parties have agreed that the Client will be liable for payment of the tax imposed pursuant to Section 80 of the Provincial Sales Tax Act in respect of the Tangible Personal Property.
e. The Parties have further agreed that the Seller will be exempt from tax in respect of the Tangible Personal Property pursuant to Section 79 of the Provincial Sales Tax Act.
12.2 Payment of Provincial Sales Tax:
a. The Seller will purchase the Tangible Personal Property at a sale in British Columbia for the Tangible Personal Property Purchase Price.
b. The Client will be liable for payment of the tax imposed pursuant to Section 80 of the Provincial Sales Tax Act in respect of the purchase by the Seller of the Tangible Personal Property and will remit the same in the manner and within the deadlines set out in the Provincial Sales Tax Act.
c. The Client will indemnify and hold harmless the Seller with respect to full amount of Taxes (including, without limitation, any amounts paid by the Seller) and any liability (including, without limitation, penalties, interest, and expenses), resulting from a breach by the Client of its obligations under the Agreement and particularly, this Article 5 including, without limitation, the obligation by the Client to remit the tax imposed pursuant to Section 80 of the Provincial Sales Tax Act in the manner and within the deadlines set out in the Provincial Sales Tax Act. This indemnification will be made within 30 days from the date the Seller makes written demand therefor and will survive the termination of the Agreement.
12.3 Survival of Representations. The representations, warranties, covenants, and agreements of the Client contained in this Article 5 will survive the fulfillment of the terms of the Agreement and will remain in full force and effect notwithstanding any waiver by the Seller.
12.4 Indemnification by the Client. The Client covenants and agrees to indemnify and hold harmless the Seller from any loss, damage, liability, cost, and expense suffered by the Seller directly or indirectly as a result of or arising out of any breach of representation, warranty, covenant, or agreement of the Client contained in this Article 5.
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