Terms and Conditions

Acceptance of Order

All orders shall be subject to acceptance by HE Rieckelman Inc., which if accepted, shall be communicated in writing by HE Rieckelman Inc. to the Purchaser (as named in the Sales Confirmation (as defined below)) within 10 days of receipt of an order. Upon acceptance by HE Rieckelman Inc., these Terms shall apply.

The accompanying quotation and/or sales order and/or invoice (each such document, or if applicable, one or more of such documents are collectively hereinafter referred to as the “Sales Confirmation”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.

These Terms prevail over any of Purchaser's general terms and conditions of purchase regardless of whether or when the Purchaser has submitted its purchase order or such terms. Fulfilment of the Purchaser's order does not constitute acceptance of any of the Purchaser's terms and conditions and does not serve to modify or amend these Terms.

HE Rieckelman Inc., when referred to herein, refers to HE Rieckelman Inc., any of its affiliates, successors, heirs, or assigns (collectively, “HE Rieckelman Inc.”).

Title

Title to and ownership of the goods shall be and remain vested in HE Rieckelman Inc. until the full amount of the purchase price and all costs and expenses relating thereto have been received by HE Rieckelman Inc.

As collateral security for the payment of the purchase price of the goods and performance of the Purchaser's obligations, the Purchaser hereby grants to HE Rieckelman Inc. a lien and security interest in and to all of the right, title, and interest of the Purchaser in, to and under the goods supplied to the Purchaser by HE Rieckelman Inc. wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing.

The security interest granted under this provision constitutes a purchase money security interest under the Ontario Personal Property Security Act. The Purchaser shall bear the risk of any loss, damage, destruction or confiscation of or to the goods and shall insure it against loss or damage with loss payable to HE Rieckelman Inc. as its interest may appear from the Delivery Point.

If the Purchaser is located in the Province of Québec, the Purchaser hypothecates in favour of HE Rieckelman Inc. any and all goods sold pursuant to this Agreement. The amount for which the hypothec is granted is equal to the aggregate purchase price of such goods plus all taxes and fees related thereto, including applicable delivery and storage fees, plus an additional amount equal to 25% of the Purchase Price.

Price

All prices indicated in the Sales Confirmation are subject to change because of fluctuations in foreign exchange rates, duty rates or unexpected changes. Changes in the rate of exchange shall be measured as against a nominal rate as used in the preparation of your quotation.

Some items, and their related prices, charges, duties, and other fees payable in this quotation may be affected under The Canada-United States-Mexico Agreement (“CUSMA”) or as the result of the initiation of anti-dumping and/or subsidizing investigation by the Canada Border Services Agency. HE Rieckelman Inc. will adjust prices to reflect such changes.

Except as otherwise provided above, the prices indicated in the Sales Confirmation shall remain valid for thirty (30) days from the date of the Sales Confirmation. Notwithstanding the foregoing, prices indicated in the Sales Confirmation for CGC products shall remain valid for fifteen (15) days from the date of the Sales Confirmation.

Following the applicable validity period, HE Rieckelman Inc. reserves the right to revise the applicable prices to reflect changes in supplier pricing, foreign exchange rates, duties, tariffs, freight costs, or other circumstances affecting the cost of the products.

Payment Terms

The Purchaser shall pay all invoiced amounts due to HE Rieckelman Inc. within 30 days from the invoice date, provided that Net 30 credit terms have been approved by HE Rieckelman Inc.

For Purchasers without approved credit terms, all orders shall be payable on a Cash on Delivery (COD) basis. The Purchaser shall make all payments hereunder in the manner specified in the Sales Confirmation and in Canadian dollars.

All outstanding amounts owing for a period in excess of 30 days from the date of the invoice are subject to a service charge of 1.5% per month or 18% per annum.

The Purchaser shall reimburse HE Rieckelman Inc. for all costs incurred in collecting any late payments, including, without limitation, legal fees on a full indemnity basis.

HE Rieckelman Inc. shall be entitled to suspend the delivery of any goods if the Purchaser fails to pay any amounts when due hereunder and such failure continues for thirty (30) days following written notice thereof.

The Purchaser shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with HE Rieckelman Inc., or for any other reason.

Freight

Prices are ExWorks (EXW) Delivery Point, as defined in Incoterms 2020.

Unless otherwise agreed in writing by the parties, the “Delivery Point” shall be the HE Rieckelman Inc. warehouse specified in the Sales Confirmation.

HE Rieckelman Inc. shall deliver the goods to the Delivery Point using HE Rieckelman Inc.’s standard methods for packaging and shipping.

The Purchaser shall take delivery of the goods within ten (10) business days of HE Rieckelman Inc.'s written notice that the goods have been delivered to the Delivery Point. The Purchaser shall be responsible for all loading costs and provide equipment and labour reasonably suited for receipt of the goods at the Delivery Point.

Delivery

Delivery dates are as specified in the Sales Confirmation, and are subject to availability of goods. HE Rieckelman Inc. shall not be liable for any delays, loss, or damage in transit.

In order to ensure adequate lead time and inventory availability, HE Rieckelman Inc. requires 30 days notice on all changes to production forecasts provided by the customer as they affect customer requirements for specific product types from HE Rieckelman Inc.

Failure to provide adequate notice may result in HE Rieckelman Inc. incurring expenses that were not anticipated in the product quotation and that may be charged to the customer at the discretion of HE Rieckelman Inc.

HE Rieckelman Inc. may, in its sole discretion, without liability or penalty, make partial shipments to the Purchaser. Each shipment will constitute a separate sale, and the Purchaser shall pay for the items shipped whether such shipment is in whole or partial fulfilment of Purchaser's purchase order.

If the Purchaser fails to accept delivery of any of the goods on the applicable date, risk of loss shall pass to the Purchaser, the goods shall be deemed delivered, and HE Rieckelman Inc. may store the goods until pickup. The Purchaser shall be liable for the greater of 1% of the applicable goods per month or all related costs and expenses, including storage and insurance.

Limited Warranty

Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the goods. Third Party Products are not covered by the limited warranty noted above, but are subject instead to any warranties of those providing the Third Party Product.

HE Rieckelman Inc. shall not be liable for a breach of the warranty if the Purchaser continues to use the goods following notice of a warranty claim, fails to follow storage, installation, commissioning, use or maintenance instructions, alters or repairs the goods without prior written consent, or where failure results from environmental influence, accident, misuse, neglect, negligence, improper testing, improper handling or abnormal physical stress.

HE Rieckelman Inc.'s liability under any product warranty shall be limited to the repair or replacement of defective goods, as determined solely by HE Rieckelman Inc.

None of the limited warranties provided by HE Rieckelman Inc. herein shall apply to any goods that are subject to a separate warranty policy, including, for example, TempShift™ System.

Limitation of Liability

Indemnification

The Purchaser shall indemnify HE Rieckelman Inc. from, and defend and hold HE Rieckelman Inc. harmless from and against, any losses suffered, incurred or sustained by HE Rieckelman Inc. resulting from, arising out of or relating to any claim arising from infringement or alleged infringement by the Purchaser upon the proprietary or other rights, including intellectual property rights, of a third party relating to the goods, and any claim of loss or damage resulting from the goods and their use by the Purchaser or any third-party end user.

Duties and Taxes

All duties, taxes or governmental charges including use or occupation taxes that are levied upon the production, shipment, or sale of equipment shall be added to the price or assessed separately and will be paid by the Purchaser.

All prices shown in HE Rieckelman Inc.'s quotations are “All Taxes Out.” All prices are exclusive of harmonized sales tax, goods and services tax, sales tax, value added tax, use and excise taxes, and any other similar taxes, duties and charges imposed by any governmental authority.

The Purchaser shall be responsible for all such charges, costs and taxes.

Purchaser's Acts or Omissions

If HE Rieckelman Inc.'s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Purchaser or its agents, subcontractors, consultants or employees, HE Rieckelman Inc. shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by the Purchaser to the extent arising directly or indirectly from such prevention or delay.

Return of Goods

Prior written authorization must be obtained from HE Rieckelman Inc. for any goods returned to HE Rieckelman Inc. and any request for return authorization must be made within thirty (30) days from the date of invoice.

Authorization is valid for thirty (30) days from the date of authorization. Returned goods will not be accepted after this period.

Items accepted by HE Rieckelman Inc. for return will be subject to a minimum 30% restocking charge based on the price of the goods purchased, or such other rates subject to HE Rieckelman Inc.'s sole and absolute discretion.

Items must be in saleable condition and in the original packaging. All documents accompanying returned goods must indicate the return authorization number and the original invoice number and part number(s).

All goods must be returned on a prepaid basis by the Purchaser. Goods shipped on a collect basis will be refused.

Electrical, specially ordered, non-stock, or customized items will not be accepted for return.

Governing Law

All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than Ontario.

Application of the United Nations Convention on Contracts for the International Sale of Goods and the International Sales of Goods Act (R.S.O. 1990, c. I.10) are excluded and do not apply to this Agreement.

Compliance with Law

The Purchaser shall comply with all applicable laws, regulations, and ordinances, including privacy laws, and shall maintain all licenses, permissions, authorizations, consents, and permits required to carry out its obligations under this Agreement.

The Purchaser shall comply with all export and import laws of all countries involved in the sale of goods under this Agreement or any resale of the goods and assumes responsibility for shipments requiring government export or import clearance.

If the Purchaser is located in Québec, the Purchaser agrees to comply with all applicable labelling and language requirements, including the Charter of the French language, and shall be solely responsible for preparation of documentation required to permit resale or distribution of the goods in Québec.

Choice of Forum

Any legal suit, action, litigation, or proceeding arising out of or relating to this Agreement shall be instituted in the courts of the Province of Ontario, in the City of Toronto, including the Commercial List.

Each party irrevocably submits to the exclusive jurisdiction of such courts and waives any objection to venue or any claim that proceedings have been brought in an inconvenient forum.

Termination and Order Cancellation

In addition to any remedies that may be provided under these Terms, HE Rieckelman Inc. may terminate this Agreement for convenience at any time and in its sole and absolute discretion with immediate effect upon written notice to the Purchaser.

The Purchaser shall not be permitted to terminate this Agreement or cancel an order once accepted by HE Rieckelman Inc. without the prior written consent of HE Rieckelman Inc.

If HE Rieckelman Inc. accepts and consents to early termination or cancellation, the Purchaser shall pay HE Rieckelman Inc. a minimum fee of 30% of the price of the goods purchased (“Cancellation Fee”).

Custom or build-to-order products cannot be cancelled once production has commenced.

Waiver

No waiver by HE Rieckelman Inc. of any provision of this Agreement is effective unless explicitly set forth in writing and signed by HE Rieckelman Inc.

No failure or delay in exercising any right, remedy, power or privilege shall operate as a waiver thereof.

Confidential Information

All non-public, confidential or proprietary information of HE Rieckelman Inc., including specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed to the Purchaser in connection with this Agreement is confidential and may not be disclosed or copied unless authorized in advance by HE Rieckelman Inc. in writing.

Upon request, the Purchaser shall promptly return all documents and materials received from HE Rieckelman Inc. at the Purchaser's expense.

This section does not apply to information that is in the public domain, known to the Purchaser at the time of disclosure, or rightfully obtained on a non-confidential basis from a third party.

Intellectual Property

HE Rieckelman Inc. retains all right, title and interest in and to all intellectual property associated with the goods, including patents, copyrights, trademarks, software, trade names and related technology (“Technology”).

No transfer of ownership or title in the Technology is made by the sale of goods to the Purchaser or any third party.

The Purchaser shall not reverse engineer, reverse compile or reverse assemble the goods or software contained therein, in whole or in part, without prior written consent from HE Rieckelman Inc.

Assignment

The Purchaser shall not assign any rights or delegate any obligations under this Agreement without the prior written consent of HE Rieckelman Inc.

Any purported assignment or delegation in violation of this section is null and void.

Product Discontinuance

HE Rieckelman Inc. shall be entitled to discontinue the supply of any goods which the manufacturer has discontinued.

Relationship of the Parties

The relationship between the parties is that of independent contractors.

Nothing contained in this Agreement shall be construed as creating an agency, partnership, joint venture, employment, fiduciary relationship, or other form of joint enterprise, and neither party shall have authority to contract for or bind the other party.

No Third-Party Beneficiaries

This Agreement is for the sole benefit of the parties and their respective successors and permitted assigns and is not intended to confer upon any other person or entity any legal or equitable right, benefit or remedy.

Notices

Each party shall deliver all notices, requests, consents, claims, demands, waivers and other communications under this Agreement in writing and addressed to the applicable party at the address set forth in the Sales Confirmation or such other address designated in accordance with this section.

Notices will be deemed validly and effectively given upon receipt if personally delivered or delivered by recognized same-day or overnight courier; upon acknowledgement by the intended recipient if delivered by email; or when sent by facsimile in accordance with the timing provisions set out in these Terms.

Severability

If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.

Survival

Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement, including Compliance with Laws, Confidential Information, Governing Law, Choice of Forum and Survival.

Language

If the Purchaser is located in the Province of Québec, the parties wish to confirm that they have expressly required and mutually agree that this Agreement and all related documents, including notices and other communications, be written exclusively in English, including where this Agreement is characterized or construed as a contract containing standard clauses or a contract of adhesion under Québec law and is used in relations outside Québec.

Si l'Acheteur est situé dans la province de Québec, les parties désirent confirmer qu'elles ont expressément exigé et conviennent mutuellement que la présente convention ainsi que tous les documents qui s'y rattachent, incluant les avis et autres communications, soient rédigés exclusivement en anglais, incluant notamment dans l'éventualité où la présente convention est qualifiée ou interprétée comme étant un contrat où figurent des clauses-types ou un contrat d'adhésion en vertu du droit applicable au Québec, consistant en un contrat utilisé dans les relations avec l'extérieur du Québec.