TERMS AND CONDITIONS
Terms and Conditions
These terms and conditions (“Terms and Conditions”) apply to any and all orders placed by client, customer, or end user (“Customer”) for purchases of new equipment (“Products”) sold, developed and/or manufactured by Hydrowise Incorporation / Hydrosage Incorporation (“Company”) from Company, whether or not such purchase is subject to a signed purchase order, distribution or other agreement between Company and Customer (individually as a “Party” and collectively as the “Parties” to these Terms and Conditions); and any scope of work signed by Customer and Company (“Scope of Work”) for performing professional services (the “Services”) by Company, whether or not such Services are subject to a signed contract or agreement between the Parties. Ordering Products and Services from Company constitutes acceptance of the Terms and Conditions set forth herein, as such terms may have been updated through the date of such order or the date of signing a Scope of Work. Any different, or additional terms in any purchase order, blanket instructions or other writing from Customer will be deemed a material alteration hereof and are hereby expressly objected to and rejected and will be of no force or effect. Commencement of the Services or shipment will not be construed as acceptance of any of Customer’s terms and conditions, which are different from or in addition to the Terms and Conditions. The course of the Services or usage of trade will not be applied to modify these Terms and Conditions.
In Consideration Of the matters described above and of the mutual benefit and obligations set forth in the Terms and Conditions, the receipt and sufficiency of which consideration is hereby acknowledged, Customer agrees as follows:
Product Order
All orders that are accepted by Company are subject to the Terms and Conditions. All orders must be placed in writing and delivered directly to Company from the entity that will be liable for the payment of the order. Verbal or telephone order or orders through a third party other than an authorized Company distributor (“Distributor”) will not be accepted. Company will in no way be responsible for any errors made by Customer in the quantity or type of ordered Products. It is Customer’s responsibility to review the quote, estimate or invoice upon receipt and report any errors or omissions to Company in writing immediately. Customer must submit all requests to cancel or change to orders in writing to Company. Any requests to cancel or change to orders received by Company after shipment of Products are subject to a restocking charge of twenty five percent (25%) of Company’s invoiced Product value. Any shipment charges incurred will remain Customer’s responsibility. All requests are subject to any and all cost or expense incurred by Company from such cancellation or change including, without limitation, costs for work performed and/or materials purchased by Company for Products.
Disclaimer of Software Warranty
Customer expressly understands and agrees that the use of any Software developed and provided by Company (the “Software”) is at Customer’s or its end users’ sole risk and that the Software is provided “AS IS” and “AS AVAILABLE” without warranty of any kind from Company. Customer’s use of the Software and any material downloaded or otherwise obtained through the use of the Software is at Customer’s or its end users’ own discretion and risk and Customer’s or its end users’ are solely responsible for any damage to Customer’s or its end users’ computer system or other device or loss of data that results from such use. With respect to the Software, Company further expressly disclaims all warranties and conditions of any kind, whether express or implied, including but not limited to the implied warranties and conditions of merchantability, fitness for a particular purpose and non-infringement. Company does not warrant that the Software will work perfectly or will not need occasional upgrades, debugging, or modifications, or that it will not be negatively affected by network-related modifications, upgrades or similar activity.
Products Warranty and Liability
The use of the Products constitutes Customer’s acceptance of the terms set forth in the Terms and Conditions. The Products have one-year warranty on parts and labor. The warranty is automatically validated upon the receipt of the Products. Company also provides an optional three-year extended warranty for an additional cost of 10% of the Products price. Company is only liable to Customer directly, and not to Customer’s buyers, end users, clients or customers. Company is only liable for new equipment of its own manufacture. Any component of the Products, material and equipment covered hereby, which is manufactured by third parties will be covered only by the warranty of its own manufacturer. Company warrants the Products against defective workmanship and materials for the period of warranty.
There are no understandings, representations, or warranties of any kind, express, implied, statutory or otherwise (including, but without limitation, the implied warranties of merchantability and fitness for a particular purpose), not expressly set forth herein. Company makes no warrant that operation of the Products will be uninterrupted or error free. Company does not consider the results of ordinary wear and tear, accident and excessive deterioration due to corrosion from any cause, neglect, and misuse a defect. Company’s liability for defective parts to Customer under these Terms and Conditions will in no event exceed the furnishing of replacement parts Freight On Board the factory where originally manufactured.
Company will not be liable to Customer for loss, damage or injuries to persons (including death), or to property or things of whatsoever kind (including, but not without limitation, loss of anticipated profits), occasioned by or arising out of the installation, operation, use, misuse, nonuse, repair, or replacement of the Products, or out of the use of any method or process for which the same may be employed.
Professional Services
Customer is of the opinion that Company has the necessary qualifications, experience and abilities to provide Services to Customer. Customer agrees to comply with provisions, terms and conditions governing matters in connection with the Services provided by Company. Company will provide Customer with a specified number of hours of Services as set forth in the Scope of Work or as otherwise agreed to by the Parties. In the event that a Scope of Work is not specified, Company will use commercially reasonable efforts to provide such Services as requested by Customer up to the number of hours agreed by the parties. Company will provide such resources and utilize such employees and/or consultants as it deems necessary to perform the Services. Customer agrees to furnish Company with adequate technical assistance, network access, materials, and an environment suitable for Company to be able to perform the Services. Customer further agrees to provide Company with such technology owned or controlled by Customer (the “Licensed Technology”) as Company reasonably requires to perform the Services. Customer and Company agree to cooperate in good faith to achieve completion of the Services in a timely and professional manner. Company will bear no liability or otherwise be responsible for delays in the provision of the Services or any portion thereof occasioned by Customer’s failure timely to complete a Customer task or adhere to a Customer schedule.
Term of Terms and Conditions
These Terms and Conditions commence on the earlier of the date of the Scope of Work or date that Company begins the Services (“Effective Date”) and, unless terminated earlier pursuant to the terms of the Scope of Work, will continue in force until exhaustion of the number of consulting hours identified in the Scope of Work or as otherwise agreed to by the Parties.
Incurred Costs and Service Fees
For the Services provided by Company, the Customer agrees to pay Company the fees set forth in a quote issued by Company to the Customer (“Quote”) or as otherwise agreed to by Company and the Customer in accordance with a compensation schedule (“Compensation Schedule”) plus any applicable sales or use taxes or other charges. Company will be reimbursed from time to time for actual, reasonable travel and out-of-pocket expenses incurred by Company in connection with providing the Services. The amounts payable to Company set forth in a Quote or Compensation Schedule are exclusive of any sales or use or other taxes or governmental charges. The Customer will be responsible for payment of all such taxes or charges and the Customer will pay such taxes with no reduction or off set in the amounts payable to Company hereunder.
Unless otherwise set forth in a Compensation Schedule, Company will invoice on a monthly basis for all Services fees and reimbursable expenses that have accrued (the “Compensation”). Each invoice will be due and payable within thirty (30) days of date of a proper invoice, and will be deemed over due if they remain unpaid beyond that point. Any late payments will trigger a fee of 10% per month and the maximum rate of interest allowable under applicable law on the amount still owing. The Customer will be liable for all legal fees incurred by Company in the event that legal action is required to collect any amount owed under a past due account. Except as otherwise provided in the Terms and Conditions, all monetary amounts referred to in this Terms and Conditions are in Canadian Dollars (CAD). Customer will pay any currency exchange and money transfer fees incurred.
General Liability
Company will not be liable, in no event, to Customer for special, consequential, incidental, indirect, punitive or exemplary damages, whether arising in these Terms and Conditions, tort (including active, passive or imputed negligence, strict liability or product liability) or otherwise, including but not limited to, loss of use, loss of data, loss of product, business interruption, loss of revenue, loss of profits, loss of business or other financial loss arising out of or in connection with the terms and condition of these Terms and Conditions, even if Company is advised the possibility of such damages.
If Company’s performance of its obligations under these Terms and Conditions is prevented or delayed by any act or omission of Customer or its agents, end users, subcontractors, consultants, or employees, Company will not be deemed in breach of its obligations under these Terms and Conditions, or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
Exclusions from Services
Services, warranty and liabilities under these Terms and Conditions do not cover any of the following: furnishing supplies or accessories, or refinishing the Products; electrical work external to any of the Products; repair or replacement of damage to or defects in the Products resulting from causes external to the Products, including disaster, fire, accident, neglect, misuse, vandalism, water, power surges, lightning, or failure of the installation site to conform to Company applicable specifications; or resulting from use of the Products for other than intended purposes; or use of the Products with items not provided or approved by Company; or resulting from the performance of maintenance or the attempted repair of the Products by persons other than Company employees or persons authorized by Company; Services in connection with the relocation of the the Products, or the addition or removal of items of equipment or parts, attachments, features, from or to other devices not furnished by Company; and Services in connection with computer viruses or conflicts involving software that is not installed or introduced by Company.
Confidentiality
Confidential information (the “Confidential Information”) refers to any data or information to Company, whether business or personal, which would reasonably be considered to be private or proprietary to Company and that is not generally known and where the release of that Confidential Information could reasonably be expected to cause harm to Company. Customer agrees that they will not disclose, divulge, reveal, report or use, for any purpose, any Confidential Information which Customer has obtained from Company, except as authorized by Company or as required by law. The obligations of confidentiality will apply during the period of the Terms and Conditions and will survive indefinitely upon termination of these Terms and Conditions. All written and oral information and material disclosed or provided by Company to Customer under these Terms and Conditions is Confidential Information regardless of whether it was provided before or after the date of these Terms and Conditions or how it was provided to Customer.
Ownership of Intellectual Property
Any developed technology, including patentable and non patentable ideas, know-how, technical data, ortechniques, and all intellectual property rights appurtenant thereto, which may be developed by Company under the terms of these Terms and Conditions or in the delivery of any services here under that derive from, improve, enhance or modify the Products or pre-existing intellectual property (collectively, “Developments”), will be the property of Company. Customer or third-parties will have a nonexclusive license to the Developments to the extent necessary to enable Customer or third-parties to use any deliverables. Company may in its sole discretion develop, use, market, license, or sell the Developments and any software, application or product that is similar or related to that, which was developed by Company for Customer. Company will not be required to disclose information to Customer or third-parties concerning any Developments which Company deems to be proprietary or confidential.
Compliance
Customer agrees to timely furnish all information necessary to secure plans and permits for the work called for under these Terms and Conditions, and Customer warrants Services contracted for to be in compliance with applicable zoning, classification and building codes. Company assumes no responsibility for violation of zoning rules/laws. Company may terminate the Terms and Conditions if any governmental authority imposes any restriction on the sale or use of the Products. Any costs for work not in the invoices but required by lawful authorities to bring the work into compliance with applicable code will be the responsibility of Customer.
Customer Obligations
Customer will provide Company personnel with access to the Products and adequate working space (including heat, light, ventilation, electric current and outlets) at no charge to Company. All Customer environments must be free from all risks to health and safety (except to the extent notified to Company in writing and specifically accepted in writing by Company). Customer will maintain, at Customer’s expense, the installation site and provide the necessary utility services for use of the Products in accordance with Druntash’s applicable published specifications. Customer will be responsible for replacing, at Customer’s own expense, any and all consumable items used in connection with Customer’s Products installation.
Customer is solely responsible for backing up Customer’s data. Company will not under any circumstances have a duty to backup data or to restore data that is lost in the course of Company’s provision of Services, or otherwise. Company will not be liable for the loss of data, whatever the reason for the loss, including without limitation as a result of Company’s negligence.
Insurance
Customer is required to obtain, at its own expense, any and all certificates of insurance (including product liability), permits, registrations, qualifications or authorizations necessary or desirable for Company to provide Services. All equipment should be installed per the National Electric Code and local building regulations. A certified electrical contractor who meets state or local regulations and code must be on-site for all electrical work related to the Products. Company Applications Engineers are not journeymen or electrical contractors, and will only advise (if applicable) and supervise the installation and startup of Company Products.
Capacity/Independent Contractor
In providing Services under these Terms and Conditions, it is expressly agreed that Company is acting as an independent contractor and not as an employee. Customer acknowledges that these Terms and Conditions do not create a partnership or joint venture between the Parties, and is exclusively an agreement for service.
Rights of Substitution
Except as otherwise provided in these Terms and Conditions, Company may, at Company’s absolute discretion, engage a third party subcontractors to perform some or all of Services, and Customer will not hire or engage any third parties to assist with the provision of Services. In the event that Company hires a subcontractor: Company will pay the subcontractor for its services and the Compensation will remain payable by Customer to Company; and for the purposes of the indemnification clause of these Terms and Conditions, the subcontractor is an agent of Company.
Autonomy
Except as otherwise provided in these Terms and Conditions, Company will have full control over working time, methods, and decision making in relation to provision of Services in accordance with the Terms and Conditions. Company will work autonomously and not at the direction of Customer. However, Company will be responsive to the reasonable needs and concerns of Customer.
Equipment
Except as otherwise provided in these Terms and Conditions, Company will provide at Company’s own expense, any and all tools, machinery, equipment, raw materials, supplies, workwear and any other items or parts necessary to develop and manufacture the Products at Company’s own manufacturing facility, site or facility in accordance with the Terms and Conditions. Company is not responsible for the performance, functionality, or compatibility of Customer’s existing equipment, duct work, electrical systems, controls, or other equipment and materials that are already in place. In the event that an existing piece of equipment or system prevents the proper operation of the Products, Customer will be responsible for any additional service charges that may be incurred.
No Exclusivity
The Parties acknowledge that these Terms and Conditions are non-exclusive and that either Party will be free, during and after the duration of these Terms and Conditions, to engage or contract with third parties for provision of any services similar to Services. Nothing in these Terms and Conditions will restrict or limit Company from performing such development, consulting or other services to any other entity in any industry.
Force Majeure
Company will have no liability or obligation due to causes beyond Company’s reasonable control including but not limited to strikes, lockouts, fires, riots, wars, acts of God, inability to obtain materials, components or supplies, failure or break down of machinery, production scheduling delays, government regulations or other conditions.
Indemnification
Customer will at all times defend, indemnify and hold harmless Company and its respective affiliates, officers, stakeholders, agents, attorneys, accountants, employees, and permitted successors and assigns against any and all claims, losses, damages, liabilities, penalties, punitive damages, expenses, reasonable legal fees and costs of any kind or amount whatsoever, which result from or arise out of any act or omission of the indemnifying party, its respective affiliates, officers, agents, employees, and permitted successors and assigns that occurs in connection with: Customer's use of, or inability to use, the Products; breach of any provisions in the terms and conditions of these Terms and Conditions by Customer or its end users; and improper or negligent installation or use, or unauthorized repair, or integration into another product, of the Products by Customer or its end users or its agents.
Customer will not settle, compromise or consent to the entry of any judgment with respect to any pending or threatened claim without Company’s consent unless the settlement, compromise or consent provides for and includes an express, unconditional release of all claims, damages, liabilities, costs and expenses, including reasonable legal fees and expenses, against Company. This indemnification will survive the termination of these Terms and Conditions.
Dispute Resolution
In the event of any dispute in connection with the Terms and Conditions, the Parties hereto will negotiate and resolve such dispute under principles of good faith and honesty. Where the Parties fail to resolve the dispute by negotiation, they may submit to arbitration or legal proceeding.
Termination
In the event that either Customer wishes to terminate these Terms and Conditions, the Customer will be required to provide thirty (30) day written notice to Company. These Terms and Conditions may be terminated at any time by mutual agreement of the Parties. Except for provisions hereunder subject to termination or amendment in whole or in part as agreed to by the Parties in writing, the Terms and Conditions will continue to be in effect. Upon mutual termination of the Terms and Conditions, the Parties hereto will detail and agree in writing to govern the treatment of incurred costs, developments and other work results, whether completed or ongoing. Except as otherwise provided in these Terms and Conditions, the obligations of Company will end upon the termination of these Terms and Conditions.
In addition to any remedies that may be provided under these Terms and Conditions, Company may terminate the Terms and Conditions with immediate effect upon written notice to Customer, if Customer: fails to pay any amount when due under the Terms and Conditions; has not otherwise performed or complied with any of the terms and conditions of the Terms and Conditions, in whole or in part; or becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. In the event that these Terms and Conditions is terminated by Customer prior to completion of Services but where Services have been partially performed, Company will be entitled to pro rata payment of the Compensation to the date of termination provided that there has been no breach of these Terms and Conditions on the part of Company.
Miscellaneous
Customer and Company agree to cooperate in good faith to achieve completion of the projects in a timely and professional manner. Company will bear no liability or otherwise be responsible for delays in the completion of training, services, projects or any portion thereof occasioned by Customer’s failure timely to complete a task or adhere to a schedule. Time is of the essence in these Terms and Conditions. No extension or variation of these Terms and Conditions will operate as a waiver of this provision. Company will not voluntarily, or by operation of law, assign or otherwise transfer its obligations under these Terms and Conditions without prior written consent of Customer. Headings are inserted for the convenience of the Parties only and are not to be considered when interpreting these Terms and Conditions. Words in the singular mean and include the plural and vice versa. Words in the masculine mean and include the feminine and vice versa. These Terms and Conditions will be governed by and constructed in accordance with the laws of the State of California as if fully performed in California, without regard to that state's choice of law principles. In the event that any of the provisions of these Terms and Conditions are held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless to be valid and enforceable with the invalid or unenforceable parts severed from the reminder of these Terms and Conditions. The waiver by either Party of a breach, delay or omission of any of the provisions of these Terms and Conditions by the other Party will not be constructed as a waiver of any subsequent breach of the same or other provisions.