The terms and conditions set out herein shall apply to all purchase orders ("Orders") accepted by Bucan Electric Heating Devices Inc. (“Bucan”) from a Purchaser (“Purchaser”) of Bucan products and/or systems (collectively, "Products").
- AKCNOWLEDGEMENT OF ORDERS
Bucan shall acknowledge acceptance of each Order within fifteen (15) days after receipt thereof and any failure to respond within such fifteen (15) day period shall constitute a refusal of the Order by Bucan.
- PRICE AND PAYMENTS
Bucan may elect to extend credit to Purchaser, in Bucan’s sole discretion, under Bucan’s standard credit terms and conditions. If Bucan does not extend credit to Purchaser, payment for Products shall be in advance of, or as a condition to delivery of such Products, as Bucan may direct. Where credit has been approved by Bucan, terms of sale are strictly net thirty (30) days from date of invoice, unless otherwise expressly agreed by Bucan in writing.
Unless otherwise specified, prices of Products do not include any insurance, transportation, shipping, taxes, levies or duties relating to the Products, all of which shall be Purchaser’s responsibility. When Bucan is required by law or regulation to collect such taxes, Bucan will add such taxes to the sales price of the Products, which will be invoiced to and paid by the Purchaser.
In the event that Purchaser fails to pay Bucan for any Products when payment is due, or fails to accept Products when shipped, Bucan may (in addition to any other rights or remedies) immediately terminate, suspend or cancel an Order by written notice to Purchaser, provided that Purchaser has not remedied same within fifteen (15) days after its receipt of such notice from Bucan, the whole without any liability to Bucan. Without limiting any other rights and remedies available to Bucan, Purchaser shall pay all costs, including reasonable legal fees, incurred by Bucan in any action brought by Bucan to collect payments owing or to otherwise enforce its rights hereunder.
- CHANGES AND/OR CANCELLATIONS
Upon Bucan’s written approval, Purchaser shall have the right to make changes in the terms or specifications of its Orders of Products. If in Bucan’s opinion such changes affect the cost or time required to provide the Products or any other portion of the Order, Bucan shall notify Purchaser promptly in writing and provide an estimate of the additional costs and delays applicable to such Order (“Estimate”). In the event that Purchaser refuses the terms of the Estimate, in whole or in part, the changes requested by Purchaser shall not be incorporated into the Order. In the event that Bucan does not receive written notice of Purchaser’s refusal of the terms of the Estimate within ten (10) days of Purchaser’s receipt thereof, Purchaser shall be deemed to have accepted the terms of the Estimate in full.
If Purchaser seeks to terminate an Order before that Order has been filled in its entirety by Bucan, Purchaser must provide Bucan, a notice of termination ("Notice of Termination"). In such an event:
(a)Bucan, at its sole option, shall be entitled to provide to Purchaser any or all Products which were scheduled to be provided following receipt by Bucan of the Notice of Termination;
(b)Purchaser shall be liable to pay Bucan for all Products provided in accordance with Paragraph (a) above; and
(c)Purchaser shall be liable to compensate Bucan for all expenses incurred and commitments made by Bucan up to the date of receipt of the Notice of Termination.
Bucan shall furnish, as part of each Product (if applicable), any operation and maintenance instructions, electrical diagrams, drawings, logic diagrams, technical data, quality confirmation certificates, bills of lading, certificates of origin, export authorisations and licences, and any such other relevant documents.
Bucan warrants that, to the best of its knowledge, the Products are in compliance with all applicable laws and regulations. However, Bucan cannot anticipate nor control the conditions under which Products will be used; as such, Purchaser bears the sole responsibility to test the suitability of the purchased Products to its application and make necessary provisions for a safe operation of Products and to ensure their conformity to any additional codes and standards applicable to its operations.
Technical information provided by Bucan, verbally, in writing, or documented, should be considered as engineering assistance; it is not intended to supersede the requirement for the Purchaser(s) to ensure that Products or specifications are appropriate for their own applications. Accepted purchase orders are not a validation of the Products’ performance in any specific application. Purchasers accepting engineering assistance from Bucan do so without holding Bucan responsible for final technical decisions. Bucan provides custom-made heaters built with the understanding that each Purchaser has done the necessary due diligence to insure that Products will perform to meet their needs.
Bucan warrants that its work shall be performed in a timely manner and all Products shall be delivered to Purchaser in accordance with each Order on the specified delivery date. Bucan shall notify Purchaser if any delivery or performance is delayed or likely to be delayed beyond an Order’s specified date and shall not be liable for any costs or damages incurred by Purchaser as a result of such delay.
Bucan shall not be liable for any failure to deliver Products or for any loss, damage, delay or consequential loss, damage or delay caused or arising from any act of God, strike, lockout, labour dispute, sabotage, riot, civil unrest, insurrection, war, other military action, fire, tempest, accident, equipment failure, yield problems, inability to obtain materials components, energy, statutory intervention, government regulation, delay of delivery of materials or services, or any other reason beyond its control (each, a “Force Majeure”).
- INTELLECTUAL PROPERTY RIGHTS / CONFIDENTIALITY
Bucan expressly represents and warrants that it will not, directly or indirectly, infringe the intellectual property rights of Purchaser and without prejudice to the foregoing, shall not: (a) accept or use, for any reason, any of the proprietary information of Purchaser which it has reason to believe has been improperly obtained from such party; (b) reveal, or entice any person to reveal, any of the proprietary information of Purchaser to any third party without prior written approval by Purchaser; or (c) use, or entice any person to use, proprietary information of Purchaser for any purpose other than that which is expressly authorized by Purchaser. Bucan undertakes to promptly inform Purchaser if Bucan becomes aware that any third party is engaging in any of the foregoing breaches of Purchaser’s intellectual property rights.
Bucan warrants that the Products, and any materials, designs or any other works or information provided by or on behalf of Bucan, including the use thereof, does not infringe any patent, copyright, registered design, trademark, trade name, trade secret or other intellectual property right of any third party.
Purchaser shall indemnify, defend, and hold harmless Bucan from any infringement or alleged infringement by Bucan of a patent, trademark, copyright, trade secret or other intellectual property right of a third party caused by its use of any documents, drawings, specifications or other similar materials provided to Bucan by Purchaser in connection with any Order (the “Proprietary Materials”). If Bucan promptly notifies Purchaser in writing of a third party claim against Bucan that any Proprietary Materials infringe a patent, trademark, copyright, trade secret or other intellectual property right of any third party, Purchaser will defend such claim at its expense and will pay any costs and damages, including reasonable attorney’s fees and court costs, that may be finally awarded against Bucan. Purchaser will not indemnify Bucan, however, to the extent the claim of infringement is caused by: (1) Bucan’s modification of the Proprietary Materials; (2) Bucan’s failure to use corrections or enhancements to the Proprietary Materials made available at no charge by Purchaser for the purpose of avoiding such infringement claim; or (3) Bucan’s use of the Proprietary Materials in combination with any Product developed by Bucan if such Product was not contemplated at the time when the Order was placed. If any Proprietary Materials are, or in Bucan’s opinion are likely to be, held to be infringing, Purchaser shall at its expense and option either: (a) procure the right for Bucan to continue using them, (b) replace them with a non-infringing equivalent, (c) modify them to make them non-infringing while maintaining functional equivalence, or (d) if none of options (a) through (c) is possible, direct the return of the Proprietary Materials and assume the costs and fees paid for such Proprietary Materials, and any excess costs to have the infringing Proprietary Materials replaced by a third party and the Products in the Order re-designed, re-manufactured or re-ordered by Bucan.
- WARRANTY AND LIABILITY
Bucan warrants that at the time of shipment from its plant and for a twelve (12) month period thereafter, Products manufactured by Bucan and sold to Purchaser in accordance with the applicable Order, will be: (i) free from defects in material and workmanship; and (ii) in conformity with the applicable printed or written specifications in the Order.
This warranty is granted solely to the Purchaser identified on the relevant Order and is neither transferable nor assignable.
If it appears that during the said twelve (12) month period the Products do not meet the warranties specified above then the Purchaser shall provide Bucan written notice, within thirty (30) days of Purchaser’s discovery of a warranty claim, describing in reasonable detail the issues encountered and the basis of the claim.
Bucan may, following receipt of the claim, at its option, with regards to a defective or non-conforming Product: (i) provide a product, or component, to replace same; (ii) issue a credit for the purchase price of any Product or the portion attributable to the component; or (iii) reject the claim describing in reasonable detail the reasons for such a conclusion.
Products or components replaced or repaired by Bucan in accordance with this warranty are themselves only warranted for the remaining term of the original warranty.
Returns are subject to a written return authorization issued by Bucan prior to the return of the Product or component. All such items shall be shipped pre-paid and the packaging must indicate the return authorization number issued by Bucan on the outside.
Bucan shall in no way be liable for: (i) an amount exceeding the purchase price of any Product or the portion attributable to the defective or non-conforming component; (ii) any additional amounts paid by Purchaser including, but not limited to, for installation, testing and shipping; (iii) any obligations arising from terms or conditions other than this express warranty, whether stipulated by Purchaser or otherwise, regardless of whether Bucan has agreed thereto in writing and regardless of when the existence of such terms and conditions is discovered.
THE FOREGOING WARRANTY IS IN LIEU OF ALL OF THE WARRANTIES EXPRESS OR IMPLIED, AND BUCAN EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES INCLUDING WITHOUT LIMITATION WARRANTIES IMPLIED UNDER LAW SUCH AS BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE. BUCAN WILL NOT BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES RESULTING FROM ITS BREACH OF THE FOREGOING WARRANTY. For the avoidance of doubt, the foregoing exclusion of liability shall not apply to and shall therefore not serve as an exclusion or limitation of liability (i) in relation to any indemnity obligations of either party nor (ii) in the event of gross negligence or willful misconduct by either party.
Notwithstanding any provision hereof, Bucan’s warranty does not cover: (i) any damage or failure caused by corrosion; sheath corrosion or caused by exceptional operating conditions; or (ii) heater failure not related to non-conformity with the applicable printed or written specifications.
The warranty is null and of no effect where the Product or component: (i) has been subjected to misuse, neglect, accident, or improper installation; (ii) which has been repaired or altered by persons not expressly approved in writing by Bucan; (iii) is used in combination with any other equipment or materials; (iv) has been used in a manner other than those in the applicable printed or written specifications; or (v) where the identifying symbol has been removed, defaced, or changed.
Components manufactured by any supplier other than Bucan, which are sold under an Order, shall bear only that warranty made by the manufacturer of those components.
Claims for Products damaged in transit must be immediately filed with the common carrier and Bucan shall not be liable for any damages to the Products caused thereby.
Neither party’s rights shall be prejudiced or restricted by any indulgence or forbearance extended by such party or by any delay in exercising or failure to exercise any right and no waiver by either party of any breach shall operate as a waiver of any other or a further breach, whether of a like or different character. No waiver by either party of any provision of an Order shall be effective unless in writing and duly executed by an authorised representative of the party.
The invalidity, in whole or in part, of any provision hereof shall not affect the validity of the remainder of such provision or any other provision hereof.
- INDEPENDENT SELLER
Bucan hereby acknowledges that it is an independent seller. Orders shall not be interpreted or construed to create any relationship of agency, association, joint venture, or partnership between Bucan and Purchaser or to impose any partnership obligation or liability upon either party. Neither Bucan nor Purchaser shall have any right, power or authority to enter into any contract or undertaking for, or act on behalf of, or to act as or be an agent or representative of, or to otherwise bind the other party, unless expressly agreed otherwise in writing.
- ENTIRE AGREEMENT
Purchaser shall be deemed to have agreed to the terms and conditions provided hereby upon submission of an Order to Bucan provided that it received a copy hereof prior to the submission of such Order.
Bucan reserves the right to modify, amend or update the provisions set forth hereby from time to time, at its sole discretion, without prior notice; any such modification, amendment or update shall be enforceable against Purchaser from the time it is published or made available on www.bucan.com.
- GOVERNING LAW AND CONTRACT LANGUAGE
All agreements between the parties including, but not limited to, each Order and these General Terms and Conditions of Sale, shall be governed by the laws of the Province of Quebec, Canada without giving effect to its conflict of laws provisions. Jurisdiction and venue hereunder shall lie in the courts of competent jurisdiction for the district of Montreal, Province of Quebec, Canada.
The language hereof and of each Order shall be English and all communications hereunder or in relation thereto shall be delivered in English. Les parties conviennent expressément que chaque commande sera rédigée en anglais, de même que toute communication relativement à celles-ci.