PowerSafe Rentals Terms and Conditions.
1. RENT: Customer shall pay PowerSafe Rentals each month during the rental period the monthly rent. If Equipment is returned before the end of the month, customer will be invoiced upon the return of the Equipment. Rental fee shall be due 30 days after the date of PowerSafe Rentals invoice therefore. PowerSafe Rentals has a minimum rental fee of $30.00 for rentals invoiced. Upon any default, PowerSafe Rentals shall have the right to terminate this agreement, take immediate possession of the Equipment and recover from the Customer in any action to enforce PowerSafe Rentals rights hereunder, all amounts due hereunder plus interest, together with PowerSafe Rentals costs and reasonable attorney’s fees.
2. RENTAL PERIOD: Equipment is rented on an open bases and may be returned at any time unless otherwise stated, which rental period shall commence on the date the equipment is shipped to Customer (Start Rent Date), which date PowerSafe Rentals is authorized to fill upon shipment. The terms shall automatically be extended upon all the terms and conditions hereof until the date the Equipment is returned to the possession of PowerSafe Rentals.
3. SHIPPING, INSTALLATION & RETURN: All Equipment is provided from PowerSafe Rentals inventory center. Shipping will be made as specified by Customer and at Customers expense and Customer shall reimburse PowerSafe Rentals for any shipping expenses incurred by PowerSafe Rentals. The Customer assumes and shall be fully responsible for any loss of, or damage to, the rented equipment, from any cause whatsoever. Unless Customer notifies to the contrary within 72hours after receipt of any item of Equipment, it shall be conclusively presumed that the item of Equipment was delivered to the Customer in good operating condition. Customer shall return Equipment in good operating condition to PowerSafe Rentals by prepaid insured shipment to a PowerSafe Rentals Inventory Center. Unauthorized collect shipments returned to PowerSafe Rentals shall be billed to customer at a factor of 1.25.
4. WARRANTY: PowerSafe Rentals sole and exclusive warranty is that each item of Equipment, when delivered to Customer, will be in good operating condition. Customers damages for any breach by PowerSafe Rentals of such warranty with respect to an item of Equipment shall be limited to the direct damages caused by a defective operating condition which could not reasonably have been discovered by Customer after the delivery to it of such item, but in no event shall damages exceed the total monthly rental fee paid by the Customer for such item. The foregoing warranty and damages for breach thereof are the exclusive warranty and damages and are in lieu of any oral representation and all other warranties and damages, whether implied or stationary. PowerSafe Rentals does not warrant the merchantability of the Equipment nor its fitness or suitability for any particular purpose or use. To be clear PowerSafe does not accept any consequential damages for the non performance of the equipment rented.
5. OWNERSHIP; USE: The Equipment shall remain the property of PowerSafe Rentals and is provided to Customer solely on a rental bases. Customer shall not sublease, rent, transfer, assign, sell, alter, modify, or encumber any item of Equipment without prior written consent.
6. SERVICE: In the event an item of Equipment does not operate properly Customer shall notify PowerSafe Rentals and request instruction before taking any remedial action or before returning it to PowerSafe Rentals. In the event that any item of Equipment requires repair or re-calibration as a result of accident or Customer unauthorized tampering or repair of negligence, misuse, or abuse of such items, Customer shall bear the entire cost thereof, including any shipping cost.
7. SAFEKEEPING: Customer is responsible for the safekeeping of all the Equipment and shall bear the risk of any loss, theft, damage or destruction of the Equipment and shall insure each item against such risk or loss for not less than the replacement value of each item and if requested by PowerSafe Rentals shall provide evidence of such insurance. At PowerSafe Rentals option, Customer shall either replace or pay the replacement cost of any item which is lost, stolen, destroyed upon repair. Until an item has been repaired, replaced or the replacement cost has been paid by Customer, the rental period shall continue and the Customer shall continue to pay the monthly rental fee with respect thereto. Any item or non-expendable material not returned to PowerSafe Rentals will be charged to Customer at full replacement cost. All Equipment shall be delivered to Customer with ownership labels, calibration seals and anti-tamper notice affixed. Customer shall not permit such seals or notices to be removed of defaced, and if such seals or notices are removed or defaced, Customer shall pay a reasonable calibration or refurbishing fee.
8. SECURITY INTEREST: Customer hereby grants PowerSafe Rentals a security interest in the Equipment to secure the interest of PowerSafe Rentals in this agreement the payments due hereunder and the Equipment and agrees to provide PowerSafe Rentals with such documents, including financing statements, as are necessary to perfect or record the security interest.
9. SOFTWARE: If any software is supplied with the rented equipment, title to all such software (including programs and documentation) shall be retained by the software developer or by PowerSafe Rentals, and shall not be transferred to Customer. Customer is supplied the use of such software only for the rental term. Such software shall be used only on the specific equipment with which it is rented, and shall consist either of copying any portion of the program from storage units or media into the CPU, or the processing of data with the program, or both. Customer shall comply in all respects with any restrictions set forth in the program license agreement, accompanying copyright notice, or other documentation on the use of such software. Customer shall not copy or duplicate, or permit anyone else to copy or duplicate, in any manner, any printed ,physical or magnetic version of any software provided hereunder. Upon expiration or termination of rental term, Customer shall return to PowerSafe Rentals the original supplied software and all printed materials supplied by PowerSafe Rentals with such software. No licenses or rights of any kind are granted to Customer, except as may be set forth herein or in application manufacturer’s software or program agreement.
10. MISCELLANEOUS: The terms hereof set forth the entire agreement between PowerSafe Rentals and Customer with respect to the Equipment, and shall not be amended except in writing signed by both parties. The parties hereto have expressed agreed that this document and all related writings shall be drawn up in the English language. Customer shall indemnify, hold harmless and defend PowerSafe Rentals from all claims, actions and damages, including attorney’s fees, arising out of the Equipment and its use, rental, possession, operation, condition and return, including any such claims arising out of the theory of strict liability in tout, which obligations shall survive termination of this agreement
General Terms and Conditions of Purchase
The following terms and conditions (collectively, the “Terms”) shall apply to any purchase of goods and/or services specified in the Purchase Order (the “Deliverables”) by PowerSafe, and their acceptance is an express condition of such purchase. Vendor shall be deemed to have full knowledge of the Terms and such Terms shall be binding if Vendor does not deliver to PowerSafe written objection to said Terms within five (5) days from the date hereof. Delivery by Vendor to PowerSafe of any other form or document containing different or additional terms and conditions shall not constitute a written objection to these Terms, and shall not be deemed to modify or supplement these Terms in any way unless specifically agreed in writing by PowerSafe.
If Vendor accepts the Purchase Order for the Deliverables, the Vendor or its duly authorized agent shall acknowledge, sign and return via email a scanned signed copy of the Purchase Order. Non-receipt by PowerSafe of the copy of the Order within five (5) working days, or starting to perform any obligations of this Purchase Order by Vendor, or shipment of the Goods by Vendor, whichever comes first, shall be deemed to be complete acceptance by the Vendor of the Order and all of its terms and conditions.
2. ENTIRE AGREEMENT
This Purchase Order, with any documents referred or attached to, is the entire agreement between the parties and supersedes all prior negotiations, proposals and writings. Any references to Vendor’s quotation, bid or proposal expressly excludes any term, condition, or instruction contained in such document and any invoice, acknowledgment or other communication issued by Vendor in connection with this Purchase Order shall be for record and accounting purposes only.
3. GOVERNING TERMS
In the event of any conflict or inconsistency between the Terms herein and the terms and conditions contained in any acknowledgment or in any other form issued by Vendor, whether or not any such form has been acknowledged or accepted by PowerSafe, the Terms herein shall prevail. No waiver, alteration, revision or modification of the Terms shall be binding on either Party unless made in writing and signed by a duly authorized representative of PowerSafe and confirmed by an official Change Order to this Purchase Order.
4. MODIFICATIONS AND/OR REVISIONS
No deviation from the item description, specifications, or any other requirements contained in the Purchase Order shall be made without the prior written authority of PowerSafe.
PowerSafe shall have the right at any time during the term of this Purchase Order to vary it in any way, including additions to or deletions from the quantities originally ordered by issuing a written notice to such effect. Unless specifically requested by PowerSafe, Vendor shall continue to execute the order as per Purchase Order. If such variation will, in the opinion of the Vendor, cause any variations in the price or time for performance or any other obligation of the Vendor, written notice thereof shall be submitted by the Vendor within five (5) working days after receiving such notice of variation from PowerSafe, failing which it shall be deemed that no such variations will be claimed by the Vendor.
If any such variation will cause a variation in the Price or Delivery Date or other obligations and Vendor has notified PowerSafe of such impact as required, Vendor shall not proceed with any such variation until written acceptance and duly signed Purchase Order amendment is received from PowerSafe confirming the adjustment in the Price and/or time for performance and/or any other obligations of the Vendor.
If the Vendor gives notice of a variation in Price or Delivery Date or other obligations, PowerSafe shall be entitled to confirm or withdraw the variation to the Order
5. ACCEPTANCE OF DELIVERABLES
Deliverables will be received and accepted at the point of delivery stipulated in the Order only in regards to the number and condition of packages and notwithstanding any receipt given, the Deliverables shall remain liable to rejection if not in accordance with the Order. Rejected Deliverables will be held at the risk and expense of Vendor.
6. OWNERSHIP AND RISK OF LOSS
Vendor warrants that the complete ownership of the Goods, free and clear of any and all liens, restrictions, reservations, security interests, and encumbrances, shall pass to PowerSafe upon the delivery.
The risk in the Goods shall pass to PowerSafe upon the delivery.
All tools, plans, drawings, information, equipment or materials of every description furnished to Vendor by PowerSafe or specifically paid for by PowerSafe, and any replacements thereof, shall be and remain the personal property of PowerSafe.
Such property while in Vendor’s custody or control shall be held at Vendor’s risk, shall be adequately marked, shall be kept insured by Vendor at Vendor’s expense in an amount equal to the replacement cost with loss payable to PowerSafe and shall be subject to removal at PowerSafe’s written request, in which event Vendor shall redeliver to PowerSafe in the same condition as originally received by Vendor, with reasonable wear and tear excepted. The Vendor shall provide PowerSafe with proof of such insurance upon PowerSafe’s request.
In the event of failure to meet the conditions, PowerSafe shall be entitled to the return of all monies thereto paid for by PowerSafe on account of this Purchase Order and in addition, PowerSafe may cancel this Purchase Order without liability and place it elsewhere and Vendor shall be liable for any and all expenses resulting from such failure.
7. SHIPMENT AND SHIPMENT CHARGES
Vendor must obtain at its own risk and expense any export license or other official authorization and carry out, where applicable, all custom formalities necessary for the export of Deliverables. Vendor shall be liable for freight charges or damage to Deliverables resulting directly from any failure by Vendor to comply with this provision. If Deliverables are deemed to be dangerous and/or hazardous, Vendor shall ensure all legally required documentation is prepared and submitted to the carrier prior to shipment with copy to PowerSafe. No transportation or delivery charges of any kind including packing, boxing, storage or cartage charges shall be paid by PowerSafe or reimbursed to Vendor unless specifically agreed to by PowerSafe in writing. All invoices, shipping documents and other writings pertaining to this Purchase Order shall refer to PowerSafe’s Purchase Order and/or contract number set out in its contents.
8. PACKING AND MARKINGS
The Vendor shall adequately and securely pack all Goods in such a manner as to prevent loss or damage in transit. Special packing instructions may be contained in the Order. The PowerSafe shall have the right to reject any Goods damaged in transit and to recover from the Vendor any damages which PowerSafe has suffered arising from the Vendor failure to comply with the provisions of this clause.
Unless otherwise stated in the Order, the cost of packing materials, packing cases and other packing charges shall be deemed to be included in the Price, notwithstanding the specifics of the Incoterms 2010 being referenced. All packing cases and packing materials provided by the Vendor shall become the property of PowerSafe.
Vendor shall pay for damaged goods resulting from improper packing or marking and all goods received in excess of Purchase Order requirements may be returned, at Vendor’s expense, for full credit.
The equipment shall be properly tagged showing Vendor’s equipment identification numbers as well as PowerSafe’s Purchase Order Number and System Identification Number where specified. Unless otherwise detailed in the Purchase Order, all packing slips shall show the Purchase Order number and a description of the goods as described in the Purchase Order, together with Vendor’s equipment identification number for correlation thereto. As a minimum requirement, a copy of the packing slip must be affixed to the outside of the package and a copy of the packing slip must be included inside the package. Equipment received not in accordance with the above instructions may be subject to rejection. Upon shipment Vendor shall promptly notify PowerSafe in writing of the dispatch together with the routing information and anticipated time of receipt.
9. DELIVERY / DELIVERY SCHEDULE
If Vendor’s deliveries are behind the agreed upon schedule, PowerSafe, upon giving advance written notice to Vendor may elect to arrange further deliveries by the means PowerSafe finds appropriate, and in such event, Vendor shall bear the difference in cost between express shipping and normal freight rates or between expedited ground and normal ground freight.
The goods listed in the Purchase Order will not be considered clear for delivery or pick-up until Vendor has submitted all applicable quality documentation and has been accepted by PowerSafe.
10. INSPECTION / EXPEDITING / ACCEPTANCE / REJECTION / REPLACEMENT
All Deliverables shall be subject to inspection, testing, expediting, and witnessing by PowerSafe and/or its representatives upon five (5) business days written notice to Vendor, to assess work quality, conformance with specifications, and conformance with all of Vendor’s representations, warranties and covenants herein. The Vendor shall provide PowerSafe with copies of all documents required for efficient expediting, including non-priced purchase orders if required and shall provide PowerSafe’s representative free access to relevant shop drawings.
No such verification shall relieve Vendor of its obligations and warranties hereunder. If any Deliverables or parts thereof are found at any time to be defective in material or workmanship or otherwise not in conformity with the requirements set out herein, in addition to any other rights which it may have under applicable warranties, or under law, PowerSafe, at its sole discretion, shall have the right to reject and return such Deliverables for either full credit or a refund (at PowerSafe’s discretion) at Vendor’s expense including payment of shipping charges incurred by PowerSafe. Without limiting the foregoing, PowerSafe, at its sole discretion, shall also have the right to require that Vendor promptly and at its own expense or to hire a third party at the Vendors expense to, repair, replace or restore any defective or deficient portion of Deliverables. Neither the failure of PowerSafe to inspect, nor acceptance of, nor payment for any Deliverables shall prejudice PowerSafe’s rights under this paragraph. Vendor’s records relating to the manufacture or provision of Deliverables shall be maintained for a minimum of six (6) years following delivery unless otherwise agreed in writing by PowerSafe.
11. COMPLIANCE WITH LAWS AND REGULATIONS
Vendor shall comply with all laws and regulations, including without limitation, international, federal, provincial, state, municipal and local laws and codes, quality system standards and quality assurance requirements, privacy requirements, environmental standards and any additional technical codes, standards or norms which PowerSafe may specify in writing and as may be applicable to the production, sale, delivery and use of the goods or the furnishing of any labour or service called for by this Purchase Order.
The Purchase Order shall be subject to and interpreted in accordance with the Laws of Province of British Columbia, Canada.
12. CODE OF CONDUCT
Vendor shall not engage, actively or passively, nor directly or indirectly in any form of bribery, in any violation of basic human rights of employees or any child labour. Moreover, Vendor shall take responsibility for the health and safety of its employees. Vendor shall comply with all applicable state, federal, provincial and municipal laws, rules and regulations (including environmental laws) arising out of or connected with the performance of the Deliverables in the applicable jurisdiction(s) by Vendor, its employees, directors, officers or agents, including, as appropriate, obtaining and maintaining any required work permits or visas for a project. Vendor shall use reasonable efforts to promote this paragraph and the PowerSafe Code of Conduct among its sub-suppliers. Vendor explicitly undertakes and guarantees that neither it, nor its employees, or any other parties it commissions, will perform any unlawful acts or incite or aid and encourage third parties to perform such acts. Unlawful acts include offering, granting, requesting or accepting illegal payments, benefits or other advantages for oneself or a third party.
PowerSafe may provide a hardcopy or electronic copy of the PowerSafe Code of Conduct to Vendor against request. Vendor confirms that it has been made aware of the PowerSafe Code of Conduct. It undertakes to observe and comply with the principles stipulated in this Code of Conduct in its work. If Vendor engages third parties to fulfill duties, it undertakes to also issue this Code of Conduct and binds them to comply with it. If Vendor does not comply with the principles stipulated in this paragraph or the PowerSafe Code of Conduct, PowerSafe has the right to terminate the Purchase Order for cause.
Vendor warrants that Deliverables, during the warranty period provided in this section: (a.) are free from defects in design, materials and workmanship; (b.) conform with the specifications attached or contained in the Purchase Order and all documentation and information provided by PowerSafe for the Deliverables; (c.) are fit for their intended purpose as noted in the specifications; (d.) are new, unused (unless otherwise specified in this Purchase Order) and merchantable. The warranty term for Deliverables shall be for a minimum period of twelve (12) months, unless otherwise expressly negotiated and stated within the Purchase Order, from the date upon which the goods covered by this Purchase Order are put into commercial operation (against signing of Acceptance or Completion Certificate), or twenty four (24) months after their delivery (or date of readiness to ship), whichever occurs first.
Replacement parts for the equipment, and/or corrective works shall also be guaranteed for the subsequent period of twelve (12) months after the corrected item is placed in operation or eighteen (18) months after corrective work is complete, whichever is shorter. These guarantee terms shall be extended for any period that an item cannot be operated as a result of such discrepancies or defects. Vendor shall, at its own expense and option, repair or replace the whole or any part of the components thereof which may be found to be defective during said period.
To the extent services are to be provided hereunder, Vendor warrants that all work rendered shall be careful and proper and in full compliance with specifications and shall be in accordance with the best current practices in the industry, with the highest engineering or other applicable professional standards and meet all applicable standards, codes and/or regulations. The foregoing warranties shall survive any testing, inspection or acceptance by PowerSafe of Deliverables. The warranties set forth above shall not be subject to any disclaimer or exclusion of warranties or to any limitation of Vendor’s liability herein.
14. SUSPENSION OF PERFORMANCE
PowerSafe may, by written notice to Vendor, suspend further performance of all or any portion of this Purchase Order. The suspension notice shall specify the commencement date and estimated duration of the suspension.
Upon receiving a suspension notice, Vendor shall immediately suspend performance of the specified portion of the Purchase Order, and during the suspension period shall properly care for and protect all work in progress and materials, supplies, and equipment Vendor has on hand for performance of the Purchase Order.
Vendor shall use its best efforts to utilize its material, labour and equipment in such a manner as to mitigate costs associated with suspension.
PowerSafe may at any time withdraw the suspension as to all or part of the suspended performance by written notice to Vendor specifying the effective date and scope of the withdrawal, and Vendor shall, on the specified date of withdrawal, resume diligent performance of the work for which the suspension is withdrawn.
If Vendor believes that any such suspension or withdrawal of suspension justifies modification of the Purchase Order amount or time for performance, substantiated by documentation satisfactory to and verified by PowerSafe, Vendor shall notify PowerSafe within three (3) working days or earlier if reasonably possible. In such case, PowerSafe shall be entitled to confirm or withdraw the suspension. In case of confirmation from PowerSafe the Purchase Order amount or delivery date shall be modified based on mutual agreement between the parties.
In no event shall Vendor be entitled to any loss of prospective profits, contributions to overhead or any incidental, consequential or other damages due to such suspensions or withdrawals of suspension.
15. CANCELLATION FOR CONVENIENCE
PowerSafe shall have the right to cancel for its convenience any or all unperformed part of this Purchase Order at any time by written notice to Vendor. On the cancellation date stated in the notice, Vendor shall discontinue all cancelled work, shall (with respect to the cancelled work) place no additional orders, and preserve and protect materials purchased for or committed to the cancelled work, work in progress, and completed goods, and shall dispose of these materials and goods in accordance with PowerSafe’s instructions.
PowerSafe will pay and Vendor will accept as final payment the total amount of Purchase Order prorated to the portion of the entire scope of Purchase Order satisfactorily performed to the date of cancellation (substantiated by documentation and verified by PowerSafe), disposition of work and material on hand, and amounts previously paid by PowerSafe. Vendor shall not be entitled to any loss of prospective profits, contribution to overhead or incidental, consequential or other damages due to such cancellation.
16. CANCELLATION FOR GOOD CAUSE
In the event that Vendor is in material default of any provision or requirement of this Purchase Order, or Vendor shall be sequestrated or liquidated as insolvent or placed under judicial management, whether provisionally or finally, or shall commit any act of insolvency or shall make, or prepare to make an arrangement or composition with, or assignment in favour of creditors, PowerSafe shall have the right, by written notice, to cancel the order, in whole or in part, without prejudice to any of its other rights.
In the event of such termination, PowerSafe may complete this Purchase Order by such means as PowerSafe selects, and Vendor shall pay PowerSafe for any additional costs incurred by PowerSafe in completing the Purchase Order. Vendor shall not be entitled to receive any further payment until the Purchase Order is completed. If the unpaid balance of the Purchase Order exceeds the cost (including compensation for additional engineering, managerial and administrative services expended by PowerSafe) such excess shall be paid to Vendor.
Vendor shall indemnify, release, defend and hold harmless PowerSafe, its affiliates and their respective directors, officers, employees, agents, consultants and subcontractors from and against any and all expenses, costs, claims, losses, actions, lawyer’s fees, damages, duties, taxes, penalties or liabilities (including without limitation special and consequential damages, and including the costs of replacing or recalling PowerSafe’s equipment which may be damaged or rendered defective by materials furnished or work done in breach of warranties), or any amounts incurred by or which may become payable by PowerSafe arising directly or indirectly (a.) out of any breach by Vendor of the Terms, or (b.) as a result of the provision by Vendor of incorrect information and/or documentation, or (c.) from any claims or actions arising from bodily injury (including injuries resulting in death) or loss of or damage to property of others which may result, directly or indirectly, from the negligent or wrongful acts of Vendor or its directors, officers, employees, agents or subcontractors relating to the performance of the Purchase Order or any Deliverables supplied hereunder.
18. PATENTS / INTELLECTUAL PROPERTY / PURCHASER’S USE
Vendor warrants that PowerSafe and its customers may freely use, resell or otherwise deal with Deliverables without infringement of USA, Canadian or international patents, copyrights, trademarks, industrial designs, trade secrets or other intellectual property rights, foreign or domestic, owned or controlled by any other corporation, firm or person, and held by Vendor or any third party.
Vendor agrees to indemnify and hold harmless PowerSafe, its successors and assigns against any and all liabilities, claims, losses, damages, legal actions, royalties, attorney’s fees and any other expenses for defense purposes by reason of any claim, action or litigation arising from the alleged or actual infringement of any USA, Canadian or international patent, trademark, copyright, industrial design or other intellectual property right resulting from the purchase, manufacture and sale, use, or resale of Deliverables supplied by the Vendor under this Purchase Order. This provision shall not apply if any such claim relates to specifications or information furnished to the Vendor by the PowerSafe.
If Deliverables or any activity in connection therewith are held to be an infringement and their use is enjoined, Vendor shall promptly, at the option of PowerSafe, secure for PowerSafe the right to continue using or reselling Deliverables; replace Deliverables with non-infringing Deliverables; modify Deliverables such that they are no longer infringing; or, if unable to do any of the foregoing, remove the infringing Deliverables and indemnify PowerSafe for any direct or indirect losses, costs or damages resulting from such infringement.
Except for use in nuclear facilities, PowerSafe, its successor and assignee, may subject all goods to further manufacture, may combine them with other articles or sell, or put them for any use whatsoever, and no claims for royalties or additional compensation shall be made by the Vendor or anyone else by reason of such manufacture, combination sale or use. All unpatented ideas, information, designs, devices, prints, drawings and technical data concerning Vendor’s products, methods or manufacturing processes which Vendor discloses or furnishes to PowerSafe in connection with this Purchase Order shall, excepting only to the extent, as may otherwise be specifically agreed in writing between PowerSafe and Vendor, be deemed to have been disclosed or furnished as part of the consideration of this Purchase Order. Vendor agrees not to assert any claim by reason of PowerSafe’s use, duplication or disclosure thereof.
19. CONFIDENTIAL INFORMATION
Unless otherwise expressly stated in writing, all information including general business information, financial data, technical data, reports, photographs, electronic files, specifications, software, drawings, tools, dies, patterns, plans methods or other intellectual property (Information), supplied, conceived or prepared by Vendor or by PowerSafe or both in connection with the Purchase Order, shall be the property of PowerSafe, shall be considered confidential, shall not, at any time, be disclosed to a third party by Vendor without written consent of PowerSafe and shall be used solely for the purpose of supplying Deliverables. Upon termination of the Purchase Order, PowerSafe may request Vendor to deliver all the Information to PowerSafe and such Information shall not be utilized, directly or indirectly, by Vendor for the use or benefit of Vendor or any other person.
20. PRICES AND PAYMENT
Prices herein specified shall, unless otherwise expressly stated, be fixed and in the currency stated on the Purchase Order, inclusive of export taxes and duties in the country of origin and all packaging and loading at Vendor’s facility, but exclusive of any federal or provincial taxes (GST/HST) which, if applicable, shall be shown as a separate line item on Vendor’s invoice. PowerSafe shall be entitled to set-off against any amounts owing to Vendor including amounts related to other unrelated Purchase Orders with PowerSafe, any amounts owing by Vendor hereunder.
The Vendor shall submit a separate invoice for each payment due in accordance with the payment terms stated in the Purchase Order. In case of a Change Order, a separate invoice detailing each Change Order shall be submitted. Vendors are to reference the Purchase Order Number and Change Order Number when issuing invoices for payment. Failure to do so may cause delay in payment in a timely manner as per the Purchase Order terms and conditions.
Invoices are to be emailed to PowerSafe, Buyer or Purchaser.
Vendor’s invoices will be paid in accordance with the payment terms included in the Purchase Order, provided that the Vendor fulfilled the specified conditions and that such invoice is accurate and complete and is accompanied by the required supporting documents. If invoices and/or supporting documents require correction, the time of payment will be calculated from the date of receipt of the corrected invoice and/or supporting documents.
21. EXPORT CONTROL / CUSTOMS
Vendor will provide to PowerSafe, prior to shipment of Deliverables, information in writing necessary for a true, valid and complete customs declaration to be made by PowerSafe to the customs authorities in the country of destination of the goods. The written information must include, but not be limited to, the provision of data for the identification of country of origin, tariff classification, quantity, value of Deliverables and classification of Deliverables under any export control programs administered by the governments of the country of export.
In case the ultimate destination of the goods is Canada, the Vendor is requested to identify whether the origin of Deliverables is a country that is a beneficiary of a Preferential Tariff as set out in Canada’s Customs Tariff, or any successor thereto. If such would be the case, Vendor shall provide to PowerSafe certificates and other proof of origin of Deliverables, as required under Canadian Law for Deliverables to qualify for duty-free or preferential duty. If Deliverables being purchased are subject to USA re-export regulations or contains USA parts manufactured under a USA license, Vendor shall also state the ECCN (Export Control Classification Number) for each item. Due to NAFTA regulations, Vendor shall advise PowerSafe immediately of any change in its manufacturing and production processes, or in its sourcing practices, which could affect the validity of any information provided to PowerSafe. Vendor agrees to immediately notify PowerSafe of any investigation by CBSA and to fully participate and cooperate in any such review or audit by CBSA of the origin of Deliverables, including any appeals.
Prior to commencing any field services and continuing until the field services are completed, Vendor (in its name and at its sole expense) shall maintain broad form insurance policies with public bodies or insurance carriers authorized to do business in the state in which the services are to be performed and that are acceptable to PowerSafe, such insurance as will fully protect Vendor from and against any and all claims arising out of Vendor’s services, including coverage for contractual liability, bodily injury, product and completed operations liability and property damage with a minimum limit of CAD 2,000,000 (two million Canadian Dollars) or its equivalent per occurrence.
Upon request, Vendor shall provide PowerSafe with a certificate evidencing such insurance coverage, which shall state that thirty (30) days notice of cancellation or modification of the insurance coverage shall be given to PowerSafe.
23. FORCE MAJEURE
Neither party hereto shall be liable to perform any obligation hereunder in the event and to the extent that such failure is caused by a condition of force majeure.
A condition of force majeure shall arise from any circumstances beyond the reasonable control of the affected party including PowerSafe’s customer(s) and Vendor’s sub-contractor(s), which prevents or impedes the execution of the Purchase Order, limited to the following:
- War, hostilities, or military mobilization.
- Riot, insurrection, seizure by non-governmental groups, or civil disturbance.
- Earthquake, flood, fire or other natural physical disaster.
- Embargo, prohibition on import and exportation of materials or equipment or services.
- Act of terrorism.
The mere shortage of labour, materials or utilities, including the failure of any sub-supplier to deliver, shall not constitute force majeure unless caused by circumstances which are themselves force majeure events.
The party claiming force majeure shall immediately give notice in writing to the other party of the occurrence of any force majeure event which causes or is likely to cause any failure to perform any obligation hereunder. Such notice shall include the nature of the event, the expected duration and any anticipated impact on performance of the Order. Within five (5) working days after the cessation of the force majeure event, the affected party shall give a further notice specifying the final impact on the performance of the Order and a plan for recovery, including any cost impacts for such recovery plan. Failure to give either of the above notices may cause denial of any relief for the force majeure event, at the affected party’s discretion.
Should Vendor be unable, due to such a cause, to meet all of its delivery commitments for Deliverables ordered herein, Vendor shall not give preference to any other customer in making deliveries of such Deliverables.
In the event of a force majeure event or events causing a delay or foreseeable delay in excess of thirty (30) cumulative days in performance of the Order, PowerSafe reserves the right to terminate the Order as provided under Clause 16: Cancellation for Good Cause hereof.
Failure or delay by either party in enforcing any right or provision hereof shall not be deemed a waiver of such provision or right. A determination that any provision herein may be unenforceable or invalid shall not affect the enforceability or validity of the remaining provisions hereof.
No assignment of the Purchase Order, in whole or in part, or of monies due or to become due hereunder shall be made by the Vendor without prior written consent of PowerSafe. PowerSafe in its sole discretion may assign its rights hereunder to its affiliates or any third party.
26. SEVERANCE / VALIDITY OF PROVISIONS
If any provision of this Purchase Order, even after its termination, cancellation, completion, or expiration is held to be invalid, void or otherwise unenforceable, the remaining portions of that provision and all other provisions shall nevertheless continue in full force and effect and the parties shall thereafter come to mutual agreement regarding replacement of such unenforceable provision.
27. LIMITATION OF LIABILITY
In no event shall PowerSafe or any of its affiliates be liable for loss of Vendor profits, loss of goodwill, loss of expected savings or expected profits, business interruption, lost business, lost profits or indirect, special, consequential, incidental, punitive or exemplary losses, damages or expenses incurred or suffered arising out of these terms or the Purchase Order.
For any claim related to these Terms or the Purchase Order, Vendor shall be entitled to recover actual and direct damages only from PowerSafe. The limit of PowerSafe Corporation’s liability to the Vendor in any manner related to these Terms or the Purchase Order, for any and all claims, shall not in the aggregate exceed the value of the Purchase Order issued in relation to these Terms.
The limitations, exclusions and disclaimers set out in this paragraph shall apply irrespective of the nature of the cause of action, demand or claim, including but not limited to, breach of contract, tort (including negligence) or any other legal theory and shall survive termination of these Terms, a fundamental breach or breaches and/or failure of the essential purpose of these Terms or any remedy contained herein. The allocations of liability in this paragraph represent the agreed and bargained for understanding of the parties.
28. GOVERNING LAW
The Purchase Order shall be governed by, construed and interpreted in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein.
29. INDEPENDENT CONTRACTOR
The parties herein are two independent entities. Vendor is engaged as an independent contractor solely for the purpose of providing the Deliverables. Vendor is solely responsible for all losses and expenses prudent to performing its obligations hereunder.
All notices given hereunder shall be in writing and may be sent by registered mail, courier, facsimile or by electronic mail transmission if also sent by regular or registered mail, and addressed to the receiving party at the address set out in the Purchase Order or as subsequently agreed between the parties. Notices shall be deemed to be given when received by the other party.
Powersafe Terms and Conditions of Quote/Sale
Parties: PowerSafe Energy Services Inc. is herein referred to as “Seller.” Loyal Energy (Canada) Operating Ltd. herein referred to as “Buyer.” Buyer and Seller hereby agree to the following terms and conditions with respect to the purchase and sale of the equipment as stated in the quotation (individually called “Generator Set” or “Engine”, collectively herein called “Generator Sets” or “Equipment”) described in the body of the quotation.
Agreement: This single page “Terms and Conditions of Sale”, including all terms and conditions of purchase and sale set forth on page(s) 1 (one) of this proposal / invoice are herein sometimes collectively referred to herein as the “invoice” and sometimes collectively referred to herein as the “Agreement.” This Agreement is made, entered into, and effective by and between Buyer and Seller as of the invoice date set forth in the invoice (‘invoice date’).
Purchase Price & Final Purchase Date: The Equipment is being sold by the Seller to Buyer on an Ex-Works basis and will be delivered by Buyer to Seller at said Equipment’s existing location, in accordance with the terms of this Agreement. The Final date for the Buyer to complete the purchase of the Equipment from Seller shall be at time of order or purchase order issue (‘Final Purchase Date”). On or before said purchase date, Buyer shall be obligated to complete full and final payment in US Dollars (via wire transfer to Seller’s wire account) of the total purchase price for the Equipment in the amount as laid out in the quotation, such that Seller shall have received in its account said Total Purchase Price on or before the Final Purchase Date. Seller will have no obligation to deliver or release the Equipment to Buyer, until Seller has received payment in full of the Total Purchase Price in accordance with the Terms and Conditions of this Agreement. If Seller has not received via wire transfer in Seller’s account payment in full of the Total Purchase Price on or before the Final Purchase Date, then Buyer shall thereafter have no rights of any kind to purchase the Equipment from Seller, and Seller shall have no obligation of any kind to sell the Equipment to Buyer, and Seller shall have no liability of any kind to Buyer. IF SELLER HAS NOT RECEIVED VIA WIRE TRANSER IN SELLER’S ACCOUNT PAYMENT IN FULL OF THE TOTAL PURCHASE PRICE ON OR BEFORE THE FINAL PURCAHSE DATE, THEN BUYER SHALL BE IN BREACH OF THIS AGREEMENT, AND SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT.
Indemnity: Delivery by Seller of the Equipment to Buyer at said Equipment’s existing location on an Ex-Works basis in accordance with this Agreement shall constitute final delivery of said Equipment to Buyer for all purposes. Once the Equipment has been delivered to Buyer Ex-Works in accordance with this Agreement, Buyer will thereafter be irrevocably obligated to fully and completely indemnify and hold harmless Seller, and its officers, employees, directors and agents, from and against any and all liability, judgements, losses, damages, fees, fines, costs or expenses, injury to real or personal or third party property, bodily injuries, wrongful deaths, and incidents that arise out of, or based on, or related to, or connected with (i) the removal, loading, movement and / or transportation of the Equipment from its existing location, and / or (ii)the use of the Equipment at any time after the Final Purchase Date.
Warranty Disclaimer: THE EQUIPMENT IS BEING SOLD IN ITS’ “AS IS” CONDITION, OTHER THAN AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, BUYER IS NOT RELYING ON ANY REPRESENTATION OR WARRANTIES OF SELLER, OR ON ANY OF SELLER’S AGENTS OR REPRESENTATIVES, AND SELLER MAKES NO REPRESENTATION OR WARRANTIES ABOUT THE EQUIPMENT, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, AND BUYER AGREES TO ACCEPT THE EQUIPMENT WITHOUT ANY SUCH WARRANTIES. THE REMEDIES PROVIDED HEREIN WITH RESPECT TO ANY SUCH REPRESENTATIONS OR WARRANTIES ARE EXCLUSIVE, AND SELLER SHALL HAVE NO RESPONSIBILITY OR LIABILITY WITH RESPECT TO SUCH WARRANTIES FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND, OR FOR ANY DAMAGES TO OTHER PROPERTY OF BUYER, LOSS OF USE OR DOWNTIME, LOSS OF PROFIT, OR GOODWILL, SELLER SHALL HAVE NO LIABILITY FOR ANY LOSS, DAMAGE OR COST ARISING FROM THE FAILURE TO DISCOVER OR REPAIR LATENT DEFECTS OR DESIGN IN ANY EQUIPMENT, BUYER SPECIFICALLY WAIVES TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY CLAIM FOR INCIDENTAL, RESERVOIR, SPECIAL, INDIRECT, CONSEQUENTIAL, AND EXEMPLARY DAMAGES INCLUDING BUT NOT LIMITED TO MULTIPLE DAMAGES UNDER ANY DECEPTIVE TRADE PRACTICE OR CONSUMER PROTECTION LAWS. NO WARRANTY WILL EVER APPLY TO ANY EQUIPMENT THAT HAS BEEN REPAIRED OR ALTERED BY ANY PERSON IN A MANNER THAT SELLER DETERMINES ADVERSELY AFFECTS ITS PERFORMANCE OR RELIABILITY, OR TO ANY EQUIPMENT THAT HAS BEEN SUBJECT TO MISUSE, NEGLECT, LACK OF MAINTENANCE OR ACCIDENT, AND IS IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED. THE ENTIRE RISK AS TO QUALITY / PERFORMANCE IS WITH, AND THE ENTIRE COST OF SERVICING OR REPAIR IS ASSUMED SOLELY BY THE BUYER.
Exculpatory Clause: The parties agree that Seller will not be liable to Buyer for injury to Buyer’s business or property, arising out of, or occasioned by, directly or indirectly, the failure or defectiveness of any Equipment sold by Seller pursuant to this Agreement, including all cases in which the defect or failure, or the resultant injury results from, the design, manufacture, marketing, distribution, or operation of any Equipment supplied under this Agreement, or from the failure of Seller to provide timely warnings concerning the Equipment supplied under the terms of this Agreement whether that failure or defectiveness is the sole or contributory cause or the resultant injury. It is the expressed intention of the Buyer and Seller that this section is designed and intended to protect Seller from the consequences of defects in the design, manufacture, marketing, distribution, or operation of any Equipment sold or supplied under the terms of this Agreement, or from the failure of Seller to provide timely warnings concerning the Equipment supplied or sold under the terms of this Agreement.
Choice of Law, Language, Venue and Jury: This agreement shall be governed by the laws of the Province of British Columbia, Canada. All disputes arising under or with respect to the validity, interpretation or enforcement of this Agreement shall be brought only in a provincial or a federal court sitting in British Columbia, Canada. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO DEMAND THAT ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE RELATIONSHIPS OF THE PARTIES HERETO BE TRIED BY JURY. THIS WAIVER EXTENDS TO ANY AND ALL RIGHTS TO DEMAND A TRIAL BY JURY ARISING FROM ANY SOURCE INCLUDING, BUT NO LIMITED TO, THE CHARTER OF RIGHTS AND FREEDOMS OF CANADA OR ANY PROVINCE THEREIN, COMMON LAW OR ANY APLICABLE STATUTE OR REGULATIONS. EACH PARTY HERETO ACKNOWLEDGES THAT IT IS KNOWINGLY AND VOLUNTARILY WAIVING ITS RIGHT TO DEMAND TRIAL BY JURY.
Notices: Any notices to Seller or Buyer hereunder shall be in writing to that party at its respective corporate address or to such other address as that party shall have specified in written notice delivered to the other party in the manner set forth herein. Any notice required or given hereunder shall be in writing and shall be deemed properly given five (5) business days after mailing by certified mail, postage prepaid, or one (1) business day following delivery of the notice to a nationally recognized courier for overnight delivery, addressed to the designated recipient at its corporate address.
Limitation of Liability: IN NO EVENT SHALL SELLER BE LIABLE TO THE BUYER UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR INDIRECT DAMAGES OR EXPENSES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST DATA OR LOST SAVINGS) EVEN IF SELLER OR BUYER WERE ADVISED OF THE POSSIBILITY OF THE OCCURRENCE OF SUCH DAMAGES. Other than as set forth elsewhere in this Agreement, Seller shall not have any liability under this Agreement to the other buyer. Buyer understands and agrees that PowerSafe, it officers, agents and employees, shall not be liable in tort, whether based on negligence, strict liability, or any other theory of tort liability, for any action or failure to act in respect to the manufacture, preparation for sale, sale, transportation, delivery or servicing (including entrance of buyer’s personnel onto PowerSafe property, or vice versa for inspection, pick up, delivery, service or for any other purpose) of the Equipment, workmanship or components involved or used therein, or for any action or failure to act generally in respect to the transaction herein, or for any injury to persons (including death resulting therefrom). It is the parties’ intent and the intent of this provision to absolve and protect PowerSafe and PowerSafe’s officers, agents and employees from any and all tort liability.
Miscellaneous: This Agreement is intended to be a legally binding agreement between Buyer and Seller, and replaces, supersedes and prevails in its entirety over all prior oral and / or written agreements, discussions and correspondence between Buyer and Seller with respect to the purchase and sale of the Equipment. No agreements of any kind exist between Buyer and Seller until this Agreement has been executed by both parties. This Agreement in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same Agreement. Delivery of an executed counterpart of a signature page to this Agreement via facsimile or email transmission shall be as effective as in person delivery of a manually executed counterpart of this Agreement. “Time is of the essence’ with respect to all provisions of this Agreement and the performance of Buyer and Seller under this Agreement. This Agreement, including all attachments, constitutes the entire agreement between the parties hereto, and may not be amended or modified except in writing executed by the parties hereto. No party may assign any of its rights hereunder without the prior written consent of the other party. This Agreement shall be binding upon the parties and their permitted successors and assigns. The invalidity or unenforceability of any provision of this Agreement shall not affect and shall be binding upon the parties except for the invalidated provision. The agreements, representations and warranties contained in this Agreement, shall survive the Final Purchase Date for a period of one year.
Website Legal Disclaimer
You acknowledge and agree that this Site and the information available on and via the Site is provided on an “as is” and “as available” basis. Your use of this Site and its content is at your own risk. PowerSafe Energy Services Inc., is a British Columbia corporation. PowerSafe Energy, its subsidiaries, and its affiliates and their respective officers, directors, managers, partners, members, shareholder, employees, affiliates, assigns and agents (collectively “Related Persons”) make no representations or warranties concerning the Site and its content and specifically disclaim any and all warranties of any kind, express or implied, with respect to merchantability or fitness for a particular purpose, title, non-infringement, availability, security, accuracy, freedom from viruses or malware, completeness, timeliness, functionality, reliability, sequencing or speed of delivery. You will be solely responsible for any damage to your computer system or loss of data that results from using the Site and downloading content, material and/or data from the Site.
To the fullest extent permissible pursuant to applicable law, PowerSafe Energy or the Related Persons will not be liable to you or to any party for any direct, indirect, punitive, special, incidental, or consequential damages, claims, liabilities, losses, or costs under any legal or equitable theory, whether in tort (including negligence), contract, strict liability or otherwise, including but not limited to lost data, profits, savings or goodwill that may be caused by any failure of performance, error, omission, service interruption, deletion, defect, delay in operation or transmission, computer damage, computer virus, communication line failure, system failure, theft or destruction or unauthorized access to, alteration of, or use of record, or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with any access, use (or inability to use) of the Site, or any content therein. This is true even if PowerSafe Energy or Related Persons have been advised of the possibility of such damages or losses.
This Site may contain links to other websites. Such links are not endorsements of any information contained, or products or services offered in such sites, and no information in such sites has been endorsed or approved by PowerSafe Energy Services Inc. Any decision to view such links is at your own risk.
BY USING THIS SITE, YOU ACKNOWLEDGE THAT YOU HAVE READ THE ABOVE DISCLAIMERS AND THAT YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS THEREOF.
Association & Membership