/ Air Chek Industries Purchase Order Terms and Conditions

Western HVAC Solutions
#15, 1430 40th Avenue N.E
Calgary, AB


    1. Company” means Air Chek Industries Inc
    2. Company Policies” means the current version of all of Company’s standards, procedures, processes, policies, guidelines and operating practices relating to the procurement of the Goods which may be made available upon request.
    3. Contractor” means the party identified as such on the cover page of this Purchase Order.
    4. Documentation” means drawings, guidelines, manuals, specifications, parts lists, and instructions (including, without limitation, installation and maintenance instructions, assembly or disassembly instruction and operating and maintenance instructions) as well as any other documents reasonably expected to be provided by Contractor in performance of this Purchase Order, and in the event Goods are provided by Contractor, includes all drawings, manuals, specifications and instructions necessary for the operation, maintenance and disposal of the Goods.
    5. Goods” means any supplies, equipment, materials, goods (whether tangible or intangible), and/or Services to be supplied by Contractor and described or referenced on the front of this Purchase Order
    6. Indemnitees” means Company, its affiliates, its customers, and their respective directors, officers, employees, agents, contractors and representatives.
    7. Laws” means all applicable federal, provincial, state and municipal legislation, common law, by-laws, orders, rules regulations, occupational health and safety regulations, transportation regulations, environmental protections, building codes, applicable anti-bribery and corruption legislations, and decisions of any regulatory bodies which apply to Contractor’s provision of Goods under this Purchase Order.
    8. Losses” means any or all of the following: losses, damages, costs, expenses, penalties, fines, claims, demands, actions, proceedings, liens, court proceedings, judgments, collection costs, unpaid taxes, losses, or any other liability to Company, including legal fees on a solicitor-and-own-client basis, together with any interest in relation thereto at the applicable rate
    9. PO Price” means the amount indicated as such on the cover page of this Purchase Order.
    10. Purchase Order” means collectively the cover page of this document and all documents referenced therein or attached thereto, including, without limitation, these terms and conditions, any Special Terms and Conditions, any Specifications and all Revisions.
    11. Revision” means a written change order executed pursuant to Section 6 below.
    12. Services” means all materials, labour, supervision or ancillary activity required by Contractor in connection with the supply of Goods and performance of this Purchase Order.
    1. The terms and conditions of this Purchase Order govern and form part of, the Purchase Order and supersede any other prior offers, representations, bids, proposals, negotiations or agreements, whether oral or written, concerning the purchase of the Goods, performance of Services and provision of Documentation described in this Purchase Order. Any additional or different terms and conditions, including but not limited to those submitted at any time by Contractor, do not form part of this Purchase Order and are of no effect, unless specifically accepted in writing by Company pursuant to Section 6. If there is any conflict or inconsistency between any terms and conditions forming this Purchase Order, the parts of this Purchase Order shall govern in the following order of priority:
      a) Cover page of the Purchase Order;
      b) Special Terms and Conditions;
      c) Terms and Conditions;
      d) Specifications; and
      e) All other attachments.
    1. Company shall pay the PO Price to Contractor in accordance with the terms on the cover page of this Purchase Order. The PO Price constitutes full compensation for the supply of the Goods, the Services, and the Documentation and the performance and observance by Contractor of all its obligations under this Purchase Order and shall not be subject to escalation. Company shall pay GST in accordance with applicable Laws. All tax and duty rebates or exemptions are for the account of Company. In the event of a breach or anticipated breach of the terms of this Purchase Order, Company reserves the right to set off against monies owed to Contractor under this Purchase Order.
    2. All invoices shall bear this Purchase Order number, be addressed to Company as indicated on the cover page of this Purchase Order, and shall be accompanied by any back-up documentation which may be reasonably requested by Company. No payment shall be due to Contractor until receipt by Company of Contractor’s invoice in such detail as Company may reasonably request.

    1. Time is of the essence in the performance by Contractor of its obligations hereunder. Contractor shall deliver the Goods and Documentation to Company in accordance with the delivery terms and to the address set out on the Purchase Order, or any other location specified herein or agreed to in writing by Contractor and Company, on or before the promised delivery date or dates specified in the Purchase Order. Incoterms 2010 apply to the Purchase Order.
    1. Title to each item included in the Goods passes to Company on the earlier of payment for such Goods by Company or delivery of such Goods to Company. Notwithstanding the foregoing, Goods remain under the care, custody and control of Contractor and at the risk of Contractor until delivery to Company. Contractor will insure the Goods against risk of liability imposed by law, loss or damage to the time of delivery on an "all risks" and "replacement cost" basis. Contractor will deliver to Company, at its request, certificates of insurance evidencing compliance with the foregoing on terms reasonably satisfactory to Company.
    2. For the purposes of clarity, Documentation and other descriptive material provided with or related to the Goods delivered to Company is provided with the explicit right and license allowing Company to use the Documentation and descriptive material in its own asset management, maintenance, repair, re-fitting, retrofitting, equipment or process improvement, facilities management, or other purpose related to Company’s use, operation, and enjoyment of the benefit of the Goods and Documentation provided.
    1. Company may order changes, additions, or deletions to the Goods ordered without invalidating this Purchase Order. Where Company requests a change or addition, Company and Contractor shall agree on any corresponding change to the PO Price, any change in the payment terms and any change in the promised delivery date or dates as indicated on the front of this Purchase Order, and execute a Revision evidencing such changes. In the event of decrease of Goods ordered, Contractor shall not be entitled to make any claims for any damages on the basis of loss of anticipated profit, loss of profit, or any consequential or incidental damage. Except for a decrease of Goods that can be enforced unilaterally by Company, this Purchase Order may not be amended in any manner unless both Company and Contractor execute a Revision.

    1. Without limiting its obligations or liabilities associated with this Purchase Order, Contractor shall, at its sole cost and expense, obtain and continuously carry in the delivery of Goods or provision of Services (including all remedial Services) insurance set out in section 9.4.
    2. Contractor shall provide Company with valid certificates of insurance confirming the existence of the insurance described below, which shall include Company and their respective directors, officers, employees and representatives as additional insureds (the “Additional Insureds”) to the extent of Contractor’s liabilities and indemnities hereunder
    3. Insurance provided by Contractor shall be primary to any other insurance available to the extent of Contractor’s liability and indemnity obligations under this Purchase Order; provide that no material change or termination shall be made without 30 (thirty) days written notice to Company; and not permit the insurers to have any subrogation or transfer rights against Company and the other Additional Insureds in respect of any claim thereunder
    4. Contractor shall provide the following insurance:
      a) Workers’ Compensation covering Contractor and all its employees, agents, subcontractors, or any other third party performing services on behalf of the Contractor.
      b) Commercial General Liability insurance for a combined single limit of not less than five million dollars ($5,000,000) for each occurrence or incident
      c) Automobile Liability Insurance covering all motor vehicles, owned or non-owned, operated, used or hired in connection with the provision of Goods and/or Services with an inclusive bodily injury, death and property damage limit per occurrence of not less than two million dollars ($2,000,000).
      d) Professional Liability Insurance (Errors or Omissions Insurance) for a combined single limit of not less than five million dollars ($5,000,000) for each occurrence of incident (if applicable).
    1. For the purposes of this Purchase Order, "Confidential Information" means all technical, corporate, financial, economic, legal or other information or knowledge generally concerning Company or specifically concerning the Goods, whether disclosed orally or in the form of written materials, computer data or programs, and including information respecting models, mechanisms, processes, photographs, intellectual property, know-how, trade secrets or otherwise, howsoever obtained, except information that:
a) Is disclosed lawfully to Contractor by a third party who has no obligation of confidentiality to Company with respect to disclosure;
b) Is, or becomes, generally known to the public, other than by a breach by Contractor of its obligations hereunder; or
c) Is already known by Contractor before disclosure by Company hereunder as evidenced by the written records of Contractor and which is not the subject of a previous confidentiality agreement between the parties.

    1. Contractor warrants that the Goods and the use thereof by Company do not infringe any foreign or domestic patent, trademark, copyright or other industrial or intellectual property right. Contractor grants Company a perpetual, irrevocable, worldwide license to use all intellectual property directly related to the use of Goods. Contractor will indemnify and save harmless Company from and against any and all Losses arising out of or relating to any such infringement. If use or operation of the Goods, or any part thereof, is enjoined by a court of competent jurisdiction, Contractor either will procure and pay for a perpetual and royalty free license in favour of Company permitting continued use of the Goods or will replace the Goods at the expense of Contractor, including all costs of design, engineering, removal, replacement, freight, taxes and insurance, with non-infringing work of equivalent or better quality and performance capability.
    1. Contractor shall comply and shall cause each of its subsuppliers to comply, with all laws and regulations applicable to the performance and completion of Contractor's obligations under this Purchase Order. The Goods will conform to the requirements of all laws, regulations and orders and with all permits and licenses issued thereunder applicable to the design, manufacture, sale, use and operation of the Goods. The Goods will comply with all technical codes and standards specified in the Purchase Order and with applicable codes and standards in the Province of Alberta, and in the event the standards are in conflict, Contractor shall comply with the higher standard.
    1. All orders must be shipped complete unless otherwise agreed by the parties. Contractor will pack the Goods in a suitable manner which will avoid loss or damage during shipment, having regard to the mode of shipment. If a shipment consists of multiple crates or packages, each will be marked "one of", "two of ", etc. All crates, packages or containers and all bills of lading, packing lists and other shipping documents will display the name of Company and its address set out on the face of the Purchase Order (or any other location designated in writing to Contractor by Company) and will bear the Purchase Order number contained herein.
    2. Goods shipped in excess of the amounts called for on this Purchase Order or Goods which are shipped in substitution for Goods specified in this Purchase Order without the prior written consent of Company may be refused and if so refused will be returned to Contractor at Contractor's risk and expense.
    3. Goods shipped via unspecified carriers, or without the appropriate “freight service” specified, or in noncompliance with any other shipping instructions as specified in this Purchase Order may be refused, and if so refused will be returned to Contractor at Contractor’s risk and expense. If such Goods are accepted by Company, any extra freight costs, handling costs or other costs resulting from Contractor’s non-compliance with the specified shipping instructions may be charged to Contractor.
  1. LIENS
    1. Contractor shall keep all property of Company and its customers free and clear of any and all liens and charges arising in connection with the performance of this Purchase Order.
    2. In the event a lien or charge is placed against the property of the Company or Company’s customers in relation to Contractor’s provision of Goods, Company may withhold payment from Contractor until the lien is discharged or in its sole discretion discharge the lien.
    3. Contractor agrees that it shall hold harmless, be liable to and indemnify Company for all Losses sustained, incurred or paid as a direct or indirect result of Contractor’s failure to meet its obligations under Section 14.1.
  2. AUDIT
    1. At any time during normal business hours until 2 years following delivery of the Goods, Company shall have the right to inspect and audit Contractor’s records, documentations, timesheets, and any other electronic or written documentation in relation to the Goods supplied under the Purchase Order.
    1. Contractor agrees that it shall hold harmless, be liable to and indemnify Company for all Losses sustained, incurred or paid by Company which is directly or indirectly attributable to Contractor’s: (i) breach of terms of this Purchase Order; and (ii) negligence in relation to Contractor’s performance of its supply of Goods, performance of Services, or delivery of Documentation under this Purchase Order.
    1. With the exception of obligations set out under Sections 7, 10, 11, 18, the gross negligence or wilful misconduct of either party, and third party claims, neither Company nor Contractor shall be liable to each other for any claims for any loss of profit or business, or any other economic loss or any special, indirect or consequential damages of any kind or howsoever arising as a result of any actions by Company including, without limitation, termination of the whole or a part of this Purchase Order.
    1. Contractor warrants that it has not engaged in unethical conduct in receiving this Purchase Order, including but not limited to providing inappropriate gifts, engaging in any conflict of interest, bribery or any other conduct which would be a detriment to the reputation of Company. Contractor’s business practices comply with the Canadian Corruption of Foreign Public Officials Act, the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act and the OECD Convention on Combating Bribery of Foreign Public Officials. If Contractor is aware of any failure to comply with the preceding legislation or aware of any ethical misconduct, or perceived ethical misconduct, Contractor shall report such incidences immediately to Company.

    1. 1 All notices and other communications from Company to Contractor will be directed to Contractor's address on the cover of the Purchase Order. All notices and other communications other than invoices from Contractor to Company will be directed to Company's address on the cover page of this Purchase Order to the attention of the Purchasing Department. All notices and other communications will bear this Purchase Order number. Notices and communications may be given personally, by electronic mail, by facsimile transmission or by pre-paid registered mail. Notices that are personally delivered or given by facsimile transmission are deemed to be received on the next business day following the day on which they are served or transmitted. Notices given by pre-paid registered mail are deemed to be received 3 business days following the mailing thereof.
    1. Contractor may not subcontract any obligation, rights, benefits or responsibility of this Purchase Order unless Contractor obtains Company’s prior written consent beforehand.
    1. If either party fails to perform any of its obligations hereunder as a result of any act of God, war, riot, insurrection, civil commotion, fire, flood or other event or circumstance which is not reasonably foreseeable and which is beyond the reasonable control of the party relying upon this provision, that party is not liable for its failure in performance to the extent and for so long as performance is so delayed or prevented, provided that party gives notice to the other party promptly after becoming aware of such event or circumstance. If as a consequence of such event or circumstance, a party has failed to perform its obligations under this Purchase Order for a continuous period of at least 90 days, the other party may, upon written notice, terminate the purchase Order and Company shall pay an equitable amount for all Goods delivered to the date of such termination.
    1. Except for circumstances outlined in Section 21, Company may either for cause or convenience, suspend the Purchase Order for any reason upon providing 5 days written notice to Contractor. Contractor shall be paid for all undisputed invoices and accepted Goods received by Company up to the date of suspension.
    2. Without restricting any right or remedy available to Company whether pursuant to this Purchase Order or otherwise, this Purchase Order or any portion thereof may be terminated by Company on notice to Contractor if Contractor becomes bankrupt, takes any step or proceeding available to it for the benefit of insolvent debtors, becomes insolvent, takes any step or proceeding for its dissolution or winding up or is in breach of any of its obligations set out in this Purchase Order and fails to cure the breach within 5 days after notice from Company.
    3. Notwithstanding any termination of this Purchase Order or completion by Contractor of its obligations hereunder, the provisions of Sections 7, 10, 11, 15, 16, and 17 shall survive such termination or completion.
    1. No inspection, review, approval or payment given or made by or on behalf of Company relieves Contractor of its obligations under this Purchase Order. No failure by Company to complain of any breach by Contractor constitutes a waiver of the rights and remedies of Company in respect thereof. No waiver by Company of any particular breach by Contractor constitutes a waiver of any continuing or subsequent breach by Contractor. Any waiver given by Company must be in writing and signed by Company or its agent.
    1. This Purchase Order is binding upon the parties and their respective successors and permitted assigns.
    2. Failure of Company to enforce a right or remedy under this Purchase Order shall not be deemed a waiver of Company’s rights under this Purchase Order and shall not limit Company’s ability to exercise these rights in the future.
    3. Both Contractor and Company agree that this Purchase Order shall be governed and construed with the laws of the Province of Alberta, and any applicable federal laws of Canada, without regard to conflict of law principles. Further both parties agree that any legal proceedings shall take place at the law courts in the City of Calgary, in the Province of Alberta.
    4. The United Nations Convention on Contracts for the International Sale of Goods (1980) does not apply to this Purchase Order.
    5. Company may assign this Purchase Order upon providing written notice to Contractor. Contractor may not assign any obligation, rights, benefits, or responsibility of this Purchase Order without Company’s written consent.
    6. The parties agree that in the interpretation of this contract or any part of it, the doctrine of contra proferentem shall not apply and that any ambiguity shall not be construed against the Company on the basis of this rule of construction.
    7. If any term of this Purchase Order is to any extent invalid, illegal, or incapable of being enforced, such term shall be excluded to the extent of such invalidity, illegality, or unenforceability; all other terms of this Purchase Order shall remain in full force and effect.

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  • #15, 1430 – 40 Avenue NE
  • Calgary, Alberta T2E 6L1
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  • Monday - Friday: 8:00 AM - 4:30 PM
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  • Phone: 403-250-5050
  • Fax: 403-291-4998
  • E-mail: info@westernhvac.ca