Standard Terms and Conditions
The following Standard Terms and Conditions shall apply to any products and services provided by Borealis Wind Inc., (“Borealis”) to you, except to the limited extent expressly superseded by: (a) the terms of the specific proposal to which these Standard Terms and Conditions are attached, or (b) a separate, executed agreement between you and Borealis relating to a specific proposal or engagement. “you”, as used herein, means the entity obtaining products and/or services from Borealis under a proposal or otherwise, together with its employees, contractors and agents acting on its behalf. “Agreement” shall mean these Standard Terms and Conditions together with the proposal describing the products and/or services to be provided by Borealis to you, and the term of the Agreement shall refer to the duration of your business relationship with Borealis.
Each party recognizes that it may in the course of their business relationship come into possession of confidential or proprietary information of the other party. Each party agrees to use such confidential and proprietary information only in furtherance of this Agreement, and to hold such information confidential in accordance with the terms and conditions of the applicable non-disclosure agreement between the parties (the “NDA”). For greater certainty, Borealis’ confidential information includes all data respecting the functionality of Borealis’ product, as well as all product specifications, documentation, and components, and the terms of any proposal provided to you by Borealis.
Without limiting the terms and conditions contained in the NDA, each party agrees that at all times: (a) each party shall maintain the confidential information of the other party in strict confidence, shall take all necessary precautions against unauthorized disclosure of such confidential information, and shall not directly or indirectly, disclose, allow access to, transmit or transfer any confidential information to a third party without the knowledge and express written consent of the other party, (b) neither party shall use, disclose or reproduce the other party’s confidential information except as reasonably required in the performance of this Agreement, and then only to employees who have a need to know and are bound by a written obligation of confidentiality, and (c) each party agrees to advise the other party immediately in writing of any misappropriation, disclosure, conversion or misuse by any person of any confidential information of which it may become aware.
The confidentiality obligations under this Agreement shall not apply to confidential information to the extent that it: (a) is, or becomes, readily available to the public other than through a breach of the NDA or this Agreement; (b) was lawfully known to the receiving party without any confidentiality obligation prior to receipt of the confidential information from the disclosing party; or (c) was independently developed or discovered outside of the course of the performance of obligations under this Agreement.
Without limiting the foregoing, during the term of this Agreement and for a period of at least twelve (12) months thereafter, you agree not to directly or indirectly attempt to circumvent Borealis’ provision of products or services to you by utilizing any information provided to you by Borealis, or derived from your access to or use of Borealis’ product or services, to: (a) develop a product competitive with the products provided to you by Borealis, (b) source any third party product competitive with the products provided to you by Borealis, or (c) permit or assist any third party to perform the activities described in (a) or (b).
You agree that your breach of this paragraph cannot be adequately compensated for in money damages and you consent to Borealis obtaining injunctive relief, without bond, in the event you breach your obligations hereunder.
2 Pricing and Payment
All prices are in Canadian dollars unless otherwise expressly stated in writing. Borealis reserves the right to change its standard product pricing without notice. The price set forth in any proposal or quotation shall apply to the products described in the proposal or quotation. Pricing is subject to Borealis’ understanding of the project requirements, the terms of this Agreement and the proposal terms.
Prices are exclusive of, and you will pay: (a) all applicable federal, state, provincial and local taxes (including all applicable sales, use, consumption, goods and service, value added, and withholding taxes), unless you have provided Borealis with an appropriate tax exemption certificate or number, and (b) all fees and charges related to customs, duties and brokerage.
Payment shall be made in accordance with any milestones detailed in the proposal or in accordance with Borealis’ invoice, as applicable. Payment terms are net 30 days from the date of the applicable milestone acceptance or Borealis’ invoice date, whichever is earlier. Payment shall be made in full and without deduction or set-off. Interest shall be payable on overdue amounts at the lesser of 1.5% per month or the maximum rate allowable by law.
3 Orders, Delivery and Shipping
Borealis will make reasonable efforts to accommodate your delivery requirements; however, delivery is subject to availability of resources at the time of order placement. Borealis shall therefore not be liable in any way for any delay or damage arising from Borealis’ failure to meet your delivery requirements or any delivery dates.
All orders are subject to acceptance by Borealis. All shipments shall be made FCA Borealis facilities (Incoterms 2000). Risk of loss for products shall pass to you upon delivery to the carrier, and you are responsible for pursuing the carrier for any loss occurring in transit.
You are responsible for examining all shipments promptly upon receipt. If you discover any shortages or incorrect products in the shipment, you must notify Borealis immediately. Please check the order carefully, as no claim for shortages or deficiencies will be accepted by Borealis after five (5) days from delivery of the products.
4 Title, Intellectual Property and Use Restrictions
You do not obtain title and/or any right of possession to the products ordered until you have paid all amounts due for such products. Notwithstanding the foregoing, title to any software included in the product shall NOT pass to you, and your use of such software is subject to a personal, non-exclusive, revocable license to use such software solely to the extent necessary to operate the Borealis product, which is transferable only to the extent that you are selling the Borealis product to a third party, and such party requires the use of the software to operate such product.
You do not acquire any intellectual property or other proprietary rights under this Agreement, including without limitation any right, title or interest in and to patents, copyrights, trade-marks or industrial designs, whether registered or unregistered, relating to Borealis products or any part thereof. Any rights not expressly granted under this Agreement are reserved.
You shall not, and shall not permit any third party to, copy, reproduce, distribute, modify, decompile, disassemble or reverse engineer any products provided to you by Borealis, nor shall you use such products except for your own personal use (that is, you shall not act as a distributor or reseller of the products without Borealis’ express written consent).
All orders are subject to acceptance by Borealis. No additional or different terms and conditions on your purchase orders, including any pre-printed terms and conditions, shall apply.
Acceptance of Borealis products and services shall be in accordance with the schedule and specifications set forth in the applicable proposal or quotation, and, unless specifically agreed upon by the parties in writing, shall occur upon the earliest of: (a) completion of the acceptance testing phase, (b) delivery of the products or services to you, (c) completion of any installation of the products by you or on your behalf, or (d) your production use of the products or services. Notwithstanding the foregoing, if such acceptance testing, delivery or installation completion is delayed by thirty (30) days or more for reasons not related to Borealis’ performance, you agree to pay the value of any milestone that is contingent on acceptance. Such acceptance does not negate any warranty rights that you may have respecting the products and services.
You are solely responsible for preparing your facilities for installation of the products and acceptance testing.
Borealis reserves the right to make changes in the design of its products without the obligation to make equivalent changes to products that have previously been supplied to you.
You shall not be entitled to change or cancel any order that has previously been accepted by Borealis without the prior written agreement of Borealis.
7 Time for Performance
The schedule for the agreed scope of work is finalized at the project planning and initialization stage. Project delays not caused by Borealis may result in additional costs or rescheduling of dates and timelines, as mutually agreed upon by the parties acting in good faith.
All deadlines for Borealis’ performance hereunder are estimates only. While Borealis will make commercially reasonable efforts to meet such deadlines, Borealis shall not be liable for any loss or damage arising from any failure to do so. If at any time Borealis determines that it may not be able to comply with any deadline, Borealis will make commercially reasonable efforts to promptly notify you of the required timeline adjustments
8 Performance of Services
If, pursuant to your request, Borealis reviews drawings and documents prepared by others in connection with Borealis products or services, including other consultants, contractors, suppliers and fabricators, Borealis’ review of such drawings and documents shall be only to confirm general compliance with the intent of the design and information given, and shall not constitute acceptance by Borealis of any responsibility for correctness of dimensions or details of such drawings and documentation. Borealis shall be entitled to rely on all information provided by, and decisions and approvals of, you in connection with Borealis’ work hereunder. You hereby release Borealis and its personnel from any liability and costs relating to the Borealis products and services hereunder to the extent such liability and costs are attributable to any information provided by you that is not complete, accurate or current in all material respects
You acknowledge that Borealis has no control over, and no duty to take any action regarding any of your acts or omissions, including without limitation: (a) how you may interpret or use materials obtained from Borealis, or (b) what actions you may take as a result of having been exposed to information from Borealis. You shall therefore be fully and solely responsible for applying independent business judgment with respect to the appropriate use of Borealis products and services, for making implementation decisions, if any, and for determining further courses of action with respect to any matters addressed in the course of Borealis’ provision of the products and services.
You shall be responsible for preparing your site so that any services provided by Borealis can be accomplished safely and expeditiously, including providing Borealis with any necessary safety orientation and security access for work on your or any third-party premises. Where you require the use of specific third-party products or services in the performance of Borealis’ services, or where you wish Borealis to perform services in relation to your customer’s or any third party’s equipment, you will be responsible for obtaining all third party consents and security clearances required to enable Borealis to access and use any third party facilities, products or services, and shall indemnify Borealis against any claims by such third party unless Borealis would otherwise be liable for such claim under this Agreement
You shall be solely responsible for the operation of your products and equipment. Borealis expressly disclaims all liability for any claims, losses or damages relating to your products and equipment, except to the extent caused by Borealis’ breach of this Agreement.
Borealis warrants that, for a period of one (1) year from the date that the products are delivered to you: (a) the products will comply with Borealis’ specifications for such products, and (b) the products will be free from material defects in material, design and workmanship. Borealis further warrants that, in relation to services provided by Borealis, it will perform all of its obligations hereunder in a professional and competent manner, and in good faith, and in compliance with all applicable laws.
If you notify Borealis of any such material defects or non-conformance within such one (1) year period, Borealis will, at its option, repair or replace the products. If Borealis is unable to repair or replace such products within a reasonable timeframe, Borealis will refund you the amounts paid for such defective or non-conforming products. All shipment of such products back to Borealis is at your expense, unless Borealis otherwise agrees in writing.
The above warranty shall not apply to defects or non-conformities resulting from: (a) use of the product in a manner contrary to, or not in accordance with, the documentation, guidelines or instructions provided by Borealis, (b) any modification, maintenance or repair of the products by anyone other than the Borealis, (b) normal wear and tear, (c) external causes such as, but not limited to, power failure or electrical power surges, or (d) your breach of this Agreement.
THE WARRANTY SET FORTH IN THIS SECTION 8 IS THE EXCLUSIVE WARRANTY MADE BY BOREALIS TO YOU. BOREALIS DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE, NON-INFRINGEMENT, OR ANY OTHER WARRANTY OR CONDITION ARISING BY STATUTE, CUSTOM OR USAGE OF TRADE RELATED TO THE PRODUCTS PROVIDED HEREUNDER. Some jurisdictions may not allow the exclusion or limitation of implied warranties and conditions. To the extent permitted by law, any implied warranties or conditions relating to the products and services to the extent that they cannot be excluded as set out above are limited to one (1) year from the date that the products are delivered to you.
10 Limitations of Liability
In no event will Borealis be liable under this Agreement for any damages other than your direct damages to the extent arising from Borealis’ gross negligence or willful misconduct, and in no event shall Borealis’ aggregate liability exceed the amounts paid by you to Borealis for the products or services that gave rise to the claim.
No claim may be brought against Borealis, whether in contract, tort or otherwise, more than two years after the products were delivered or services completed.
EXCEPT FOR THE LIMITED DIRECT DAMAGES SPECIFIED IN THIS SECTION 9, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL BOREALIS BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, DATA, USE OR OPPORTUNITY, WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN, AND WHETHER OR NOT LABORIE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Borealis shall not be obligated to provide any support or maintenance services for the products unless otherwise expressly agreed upon in writing by you and Borealis. However, this provision does not relieve Borealis of its warranty obligations described in Section 8 above.
Borealis reserves the right to make announcements, press releases, publications, presentations and other public statements that reference the proposal, the existence of this Agreement with you and the work performed hereunder, without your prior written approval, provided that Borealis does not disclose your confidential information in the course of such publicity in contravention of its confidentiality obligations hereunder.
13 FORCE MAJEURE
Neither Party will be liable for delays and/or defaults in its performance or commitments under the Agreement, or for damages caused by such delays or defaults, where such delays or defaults are due to causes beyond its reasonable control and not caused by its fault or negligence, including, but without limited to the generality of the foregoing: acts of nature, public enemy, fire, explosion, flood, war, riots, embargoes, quarantine, strikes, lockouts, economic conditions, disputes with workmen or other labor disturbances, and/or acts or requests of any governmental authority.
This Agreement constitutes the entire agreement between the parties respecting the proposal contents, and supersedes all previous agreements relating to the subject matter hereof. This Agreement may not be altered, amended, or modified except by a written instrument signed by the duly authorized representatives of both parties. If any one or more of the provisions of this Agreement is for any reason held to be invalid, illegal, or unenforceable in any respect, any such provision shall be severable from this Agreement. No waiver by either party of a breach or omission by the other party under this Agreement shall be binding on the waiving party unless it is expressly made in writing and signed by the waiving party. This Agreement shall be governed by, and construed in accordance with, the laws of the Province of Ontario.