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Delta Terms & Conditions
#1 – 600 Chester Road, Delta, BC, Canada V3M 5V8
(604) 540-0600 FAX: (604) 540-0608
1. Purchaser is engaging the Provider to prepare Shop Drawings, herein referred to as “the Drawings,” based upon Purchaser’s plans, as referenced in the attached Sales Order, which also identifies Provider’s corresponding Project number. Purchaser is also engaging Provider to supply Structural Insulated Panels (SIPs) based upon the Drawings, herein referred to as “the Materials Package”.
2. The receipt by Provider of Purchaser’s order on this Sales Order Agreement form shall be deemed the acceptance of the offer made by this Agreement in accordance with the terms and conditions of the Agreement, including payment and/or credit terms. Provider hereby notifies Purchaser that Provider objects to the inclusion of any additional or different terms in Purchaser’s acceptance of the offer made in this Agreement. Provider may defer shipments, alter payment terms, or terminate any contract resulting from this Agreement if Purchaser fails to pay any invoice under the Agreement, or any other Agreement with Provider, when due or otherwise fails to pay any invoice in accordance with its terms which is owed to Provider.
3. Invoices will be sent to Purchaser via e-mail or at the address provided in this agreement. Additional Charges described in this Agreement shall be invoiced as incurred and are due and payable within ten (10) days of the date of invoice.
4. Provider will prepare Shop Drawings depicting the Materials Package to be fabricated. Upon completion of the Shop Drawings, Provider will submit the Shop Drawings to Purchaser for review and approval. It is solely the Purchaser’s responsibility to ensure that the Shop Drawings are consistent with Purchaser’s plans and/or construction documents. As such, any discrepancies between the Shop Drawings and Purchaser’s plans and/or construction documents which result in additional fabrication, installation, or construction costs are the responsibility of the Purchaser. Following Purchaser’s review of the Shop Drawings, any required changes to the Shop Drawings will be billed at a rate of $60.00 per hour. Additionally, any required changes to the Materials Package, will result in a change in the Base Contract Price. Such amounts will be added to the balance due prior to shipment. Purchaser may request that the Provider provide additional details and drawings in addition to the Shop Drawings provided. Such additional drawings will be billed at a rate of $60.00 per hour and will be added to the balance due prior to shipment. Purchaser recognizes that Shop Drawings are a representation only and Purchaser’s builder may be required to make field adjustments during construction as necessary where the drawings do not represent actual field conditions. Any construction or materials costs associated with adjustments to the Materials Package are the responsibility of the Purchaser. It is agreed that the Provider will not be responsible for any incidental, consequential, or special damages that may arise because of errors or omissions in Shop Drawings or because Shop Drawings are not completed on or before any particular date. If Provider’s scope of work includes engineering, the Provider will engage a licensed structural engineer, who is an independent contractor, to provide a structural review of Provider’s shop drawings. In the event the structural engineer’s review requires modifications to the Shop Drawings which in turn requires changes to the Materials Package, the Base Contract Price shall be adjusted accordingly. Additionally, any jurisdictionally required onsite inspections by the engineer are the responsibility of the Purchaser and will be separately invoiced. Changes to the Materials Package shall be made via written request (a “Change Order”) signed by both Purchaser and an authorized representative of the Provider. All Change Orders incorporate all terms and conditions of this agreement.
5. Scheduling of fabrication and delivery will be coordinated with Purchaser. Once fabrication is complete, delivery to the build site shall take place within thirty (30) days. Provider is not responsible for any incidental, consequential or special damages that may arise because the fabrication is not completed on or before any particular date. Unless otherwise agreed or stated on the Sales Order, Provider will schedule transport of the Materials Package from the Provider’s facility to Purchaser’s build site via common carrier. Access to the build site must provide an adequate road to accommodate a 75 foot flatbed tractor-trailer, including a 48 foot flatbed trailer, with a gross vehicle weight of 80,000 pounds. It is the sole judgment of the truck driver as to whether access to the build site is safe and adequate. If, in the sole judgment of the truck driver, access to the build site is inadequate or unsafe, Purchaser is responsible for arranging alternate delivery as well as transferring loads and all costs associated there with. Purchaser is responsible for unloading of materials at the build site, including providing offloading equipment, in the form of a crane or forklift. If offloading is delayed greater than four (4) hours due to inclement weather, other force majeure event, site conditions, or insufficient labor or equipment, Purchaser is responsible for any delay charges. Provider is not responsible for any incidental damage to roads in the course of delivery and unloading. Upon unloading and prior to installation, Purchaser shall have the right to inspect the Materials Package, within one (1) day of delivery. If, upon inspection, Purchaser believes the Materials Package does not meet quality standards, Purchaser may make a written claim to Provider within ten (10) days of receipt of materials. If, following inspection or review of documentation provided by Purchaser, the Provider concurs that materials are sub-standard, Provider shall repair or replace the below grade material. Provider and Purchaser agree that Purchaser’s sole and exclusive remedy against Provider shall be for the repair or replacement, without charge to the Purchaser, of any product(s) found by the Provider to be defective or nonconforming. The obligation of Provider to repair or replace defective or nonconforming product(s) shall not include any obligation to remove, dismantle, or install any such product(s). The defective product(s) shall, at Provider’s request, be returned to Provider, shipping charges prepaid, accompanied by a claim by Purchaser in writing. Purchaser agrees that no remedy, other than as set forth in this Section 5, shall be available to Purchaser including, without limitation, incidental or consequential damages for lost profits, lost sales, injury to persons or property, or any other incidental or consequential loss for claims arising out of this Agreement for any cause and regardless of the form of action, whether in contract or in tort, including strict liability, negligence or breach of warranty. Incidental and consequential damages shall not be recoverable even if the repair or replacement remedy fails to remedy Purchaser. In no event shall the remedy provided in this section 5 exceed the purchase price of the product(s) hereunder.
6. The Provider will coordinate and communicate with Purchaser, Purchaser’s builder and other third parties. However, the selection and supervision of these parties is the sole responsibility of Purchaser. Provider is not responsible for the work product, results, or activity of third parties not under its direction. As such, Purchaser agrees to indemnify and hold harmless Provider from any costs or damages resulting from acts, errors, or omissions of third parties. Provider is an independent contractor. This Agreement may not be amended in any respect except by writing and must be signed by the Provider and Purchaser. This Agreement and the exhibits hereto constitute the entire agreement between the parties with respect to the subject matter of these documents and all prior and contemporaneous agreements, understandings, negotiations, representations, and discussions, whether oral or written, between the parties concerning the subject matter of this Agreement are hereby merged and integrated into this Agreement. If any portion of this Agreement is determined to be unenforceable or void, that determination shall not affect the validity of its remaining provisions. This Agreement shall be construed and interpreted, and the rights of the Provider and Purchaser shall be determined and enforced, in accordance with the laws of the Province of British Columbia. The Provider assumes all risk of loss and damages to the Materials Package up to the date the Materials Package arrives at the Site. Purchaser assumes all risk of loss and damage to the Materials Package and structure at the commencement of unloading of the truck at the Site. It is the responsibility of the Purchaser to carry insurance to protect against personal injury or property damage. Provider shall not in any manner be liable to Purchaser should performance by it hereunder become commercially impracticable due to any contingency beyond its reasonable control, including, without limitation, act of God, fires, floods, wars, sabotage, civil unrest, accidents, labor disputes or shortages, governmental laws, ordinances, rules and regulations, whether valid or invalid (including, without limitation, priorities, requisitions, allocation, and price adjustment restrictions), inability to obtain material, equipment or transportation, incorrect, delayed or incomplete specifications, drawings or data supplied by Purchaser or others, and any similar or different contingency.
7. In the event of any dispute or claim arising out of or relating to this agreement, the parties shall use their best efforts to settle such disputes or claims. To this effect, they shall consult and negotiate with each other in good faith, and recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. In the event the parties do not reach such solution through negotiation then, upon written notice by either party to the other, the parties agree to first try, in good faith, to settle their dispute by submitting to a mediation administered by the American Arbitration Association under its Commercial Mediation Rules, before resorting to the filing of a lawsuit in court. The venue of any settlement conference or mediation shall be in the Provincial Court of British Columbia. The venue of any legal action brought under this Agreement shall lie in the Provincial Court of British Columbia. The laws of the Province of British Columbia shall govern this agreement. It is agreed that the parties to any action will equally share any cost of mediation and/or court costs. Each party will bear their own respective legal expenses including attorney fees, expert witnesses, and other expenses.
8. The rights and duties pursuant to this transaction are not assignable or transferable by either party without the other’s written consent.
9. Provider shall deliver only those item(s) expressly set forth in this Agreement. Any items which are not set forth in the Agreement, including, without limitation, beams, fasteners, and bracing, shall not be delivered by Provider.
10. Purchaser may not cancel the agreement and is obligated to pay the full amount of the Base Contract Price, plus any additional charges incurred. The Provider may terminate this agreement if Purchaser violates any portion of this agreement, including payments due, if Purchaser fails to cure such violations within ten (10) days of written default notice to Purchaser.
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