1. Entire Agreement. These terms and conditions, Finning’s quotation, invoice, or proposal (if applicable), Customer specifications along with a deviation or exception list and this Agreement constitute a final, complete and exclusive agreement of the parties (“Agreement”). Terms in Finning’s quotation or proposal (if applicable) shall control if inconsistent with these terms and conditions. No prior dealings, or course or usage of trade shall supplement or explain any terms herein unless consented to by Finning in writing.
2. Applicability of Terms and Conditions. Finning’s performance pursuant to this Agreement entered into by the parties shall incorporate by reference these terms and conditions. By placing its order, the Customer hereby agrees to the terms of this Agreement in their entirety and agrees that any additional, different or inconsistent terms and conditions provided by the Customer in its order form or any other document shall not be applicable to this Agreement. Finning may refuse to provide any goods and services under this Agreement without liability if Customer’s credit approval (if applicable) is denied or a Finning required letter of credit, guaranty or other security is not received.
3. Delivery. Subject to unanticipated delays, Finning shall deliver the goods that are the subject of this Agreement (“Goods”) to the Customer on or before the delivery time set out in the Agreement (“Delivery Time”) and in accordance with the delivery term specified therein. If no delivery term or timeline is specified, the delivery term will be Ex Works (EXW), as such term is defined in Incoterms in force on the effective date of the Agreement and the Goods shall comply with all Finning policies for shipping and/or pickup of orders. If the Customer opts to pick up the Goods at a remote storage solution (“Drop Box”) provided by Finning, in its sole discretion, then the following special terms shall apply: i) risk of loss for the Goods shall transfer to the Customer on delivery to the Drop Box; ii) the Customer shall be invoiced upon delivery to the Drop Box; iii) unless otherwise agreed to by Finning, the Customer shall be responsible, at its sole cost, to retrieve the Goods from the Drop Box within seven (7) days of delivery (the “Pickup Time”); iv) if the Customer fails to retrieve the Goods from the Drop Box within the Pickup Time, Finning may, in its sole discretion, have the Goods returned to Finning at the Customer’s expense and, subject to the Finning Customer Parts Return Policy, if Finning has already received payment in respect of the Goods, those amounts shall be credited to the Customer’s account with Finning for future purchases; v) Customer is solely responsible to provide Finning current contact information to which Finning will send notices; vi) information provided to the Customer for accessing the Drop Box is the Customer’s sole responsibility and Finning shall have no liability whatsoever for lost, stolen, or misappropriated access information leading to the loss, theft, or damage of/to the Goods; and vii) Customer shall be solely responsible, and shall indemnify Finning for in accordance with the terms of this Agreement, for any personal injury or property damage in any way relating to its use of the Drop Box.
4. Failure to Accept Delivery. If the Customer fails to accept delivery at the Delivery Time for reasons other than substantial non-conformity of the Goods, Finning shall arrange for storage of the Goods at the Customer’s sole risk and expense. Finning may in its sole discretion, arrange for storage with a third party or in accordance with the terms of Finning’s standard storage agreement. Notwithstanding the foregoing, the Customer shall pay any part of the purchase price of the Goods (the “Purchase Price”) which becomes due on delivery, as if delivery had taken place.
5. Finning Delay Due to the Customer. If Finning is delayed or incurs additional costs in performing its obligations as a result of any default, including delay, by the Customer or its agents in the performance of the Customer’s obligations , then the completion, delivery and other dates contemplated under this Agreement shall be adjusted as reasonably required to accommodate the effects of that delay, and the Customer shall pay Finning additional costs reasonably and necessarily incurred by Finning as the result of any default, including delay, by the Customer or its agents.
6. Price and Payment. Finning reserves the right in response to significant exchange rate fluctuations, without notice and in its sole discretion, to adjust any prices provided in a quotation, proposal, or otherwise to the Customer prior to final acceptance by Finning of an order. Except as otherwise agreed to by Finning in writing, prices will be firm as of the date of order acceptance paid in Canadian dollars without regard to foreign currency fluctuations. Finning reserves the right, in its sole discretion, to require the payment of a deposit by the Customer at any time prior to delivery. Payment shall be due to Finning upon delivery of Goods, without set-off, deduction, or withholding. Overdue payments shall bear interest at a rate of 18% per annum. If the Customer has not paid an amount due hereunder and in addition to all other remedies available for late payment, Finning may, upon notice to the Customer, suspend Finning’s performance of the Agreement until Finning receives the outstanding payment. If Customer has not paid an amount due within 90 days, Finning may, upon notice to Customer, terminate the Agreement and recover compensation for loss Finning incurs, which compensation shall not exceed the unpaid balance of the Purchase Price plus interest and any additional costs incurred by Finning including, without limitation, lawyer fees on a full indemnity basis and all costs associated with collection.
7. Taxes. The Customer shall pay and discharge when due, all license fees, assessments, and all taxes including all sales, use, property, rental, excise, goods and services, and other taxes or duties (each a “Tax”) now or hereafter imposed by any federal, provincial, or local government or taxing authority upon the goods or services which are subject matter of this Agreement (except income taxes payable by Finning) whether the same are payable by, or billed or assessed to Finning or the Customer, together with any penalties or interest levied or charged in connection therewith. The Customer warrants the truth and accuracy of any statement in writing to Finning that the Goods are not subject to, or is subject to any particular rate of Tax or Taxes. If Finning, either at the Customer’s request or due to requirement of law or otherwise, pays any such Tax or any amount in excess of the amount which would have been payable based on the Customer’s statement, the Customer shall immediately reimburse Finning and the amount of any such payment shall bear interest at the rate of 18% per annum at the Customer’s sole cost and expense.
8. Force Majeure. Finning shall not be liable for any loss or damage arising from Finning’s failure to perform any obligation or delay resulting from any cause beyond the reasonable control of Finning or from any act of God, act of war whether declared or undeclared, act of civil or military authority, act of any governmental authority, acts or omissions of the Customer or contractors or subcontractors, civil disturbance, insurrection or riot, sabotage, fire, pandemics, inclement weather conditions, earthquake, flood, strike, work stoppage or other labour difficulty, embargo, fuel or energy shortage, equipment breakdown, delay or accident in shipping or transportation, failure or delay in obtaining necessary manufacturing facilities, labour or materials from its usual sources, or unforeseen circumstances or contingencies.
9. Warranty. The terms of the applicable manufacturer’s warranty for the Goods (collectively, the "Warranty") shall apply. Unless stated otherwise in the Warranty, all timelines for the Warranty shall start on Finning’s invoice date. Other than the Warranty, no other warranties, conditions, guarantees or similar obligations, whether express or implied by fact, by law, including any statute or regulation, by custom or trade usage, or by any course of dealing, including but not limited to any warranties or conditions of merchantability or fitness for purpose or fitness for a particular purpose, are applicable. The Warranty is in the nature of liquidated damages and in substitution for any damages to which the Customer might otherwise be entitled at law or in equity and, in particular, Customer hereby agrees that in lieu of an actions arising out of contract or tort, Customer will rely upon the provisions of the Warranty as its sole remedy for any defect or deficiency in the Goods. In respect only of claims made under the Warranty, if there is a conflict or inconsistency between the terms of the Warranty and any other term of this Agreement, including, without limitation, any term of these Terms and Conditions, the terms of the Warranty shall govern.
10. Returns, Refunds, and Resale of Goods. Any request by the Customer for a return or refund shall be subject to agreement by Finning, in its sole discretion, compliance with the Customer Parts Return Policy and any other applicable Finning policies, as they may be subject to modification, revision, or replacement from time to time. Without prejudice to any other rights that Finning may have, Finning shall be entitled to resell any Goods which are the subject of this Agreement without any liability to the Customer whatsoever if the Customer fails to comply with any of its terms and conditions.
11. Compliance with Regulations. Finning shall provide Goods in accordance with Finning’s good faith interpretation of applicable codes and regulations in effect at the time of Agreement by Customer. However, due to periodic changes in and varying interpretations of such codes and regulations, Finning makes no representations that the Goods complies with all laws, codes, regulations and standards.
12. Limits of Liability. Finning shall not be liable, whether based in contract, warranty, indemnity, tort (including negligence), strict liability, or alternative tort remedies or any other theory of law or equity, for any indirect, special, incidental, punitive, exemplary or consequential damages including, but not limited to, damage to associated equipment, loss of profits or revenue, loss of production, loss of use of Customer’s property, plant, equipment or system downtime costs or claims of Customer’s customers. The remedies provided herein are exclusive and Finning’s total aggregate liability to Customer hereunder shall not exceed half of the Purchase Price paid by Customer for the specific Goods or services from which any claim or damages hereunder may arise.
13. Indemnification. The Customer shall defend, indemnify, and hold harmless Finning and its affiliates and their directors, officers, employees and agents from and against any and all liability, loss, damage, cost or expense (including solicitors’ fees) by reason of (i) any allegation, claim, action, suit or threat thereof, for the death or injury of any person(s) or damage or destruction of property arising out of the acts or omissions (including those as a result of negligence) or willful acts of Customer or its agents or representatives; and (ii) the Customer’s breach of or failure to perform its obligations hereunder.
14. Risk of Loss and Security Interest. Except if otherwise set forth in the Agreement, risk of loss or damage to Goods shall pass to Customer upon delivery. All actual costs for transportation, tariffs, insurance and similar charges are for Customer’s account unless otherwise specified. Notwithstanding that the Goods may be installed or otherwise incorporated into other equipment, title shall pass upon delivery and payment in full by the Customer. From the point of delivery through and including commissioning and testing, Customer shall maintain all risks property Insurance naming Finning and any contractors as additional insureds as their interest may appear. Customer hereby grants Finning a purchase money security interest in the Goods until the purchase price is fully paid. Customer shall do everything necessary or convenient to perfect and maintain such security interest including, but not limited to, the prompt execution and delivery of financing statements as requested by Finning. Finning may, in its sole discretion, make registrations or take other action to protect its interest in the Goods. To the extent permitted by law, Customer hereby waives all rights to receive notice of registration or copies of financing statements, financing change statements, verification statements, or any other notices or documentation associated with the foregoing.
15. Confidentiality. “Confidential Information” means information that is designated as confidential or should reasonably be understood to be confidential which includes but not limited to all specifications, illustrations, drawings, data and other information transmitted by Finning to Customer in connection with this Agreement. Confidential Information may only be disclosed to the Customer’s employees, professional advisors, agents, and subcontractors (“Representatives”) on a “need-to-know” basis in connection with this Agreement. Representatives shall be bound to treat the Confidential Information under terms at least as restrictive as those herein, and the Customer shall be liable for unauthorized disclosures by its Representatives. Customer will use at least the same degree of care as it employs with respect to its own Confidential Information, but not less than a commercially reasonable standard of care. If Customer must disclose Confidential Information as required by law, it shall give reasonable prior notice to Finning.
16. Intellectual Property. Goods (including software), incorporates technology, patents, trademarks, service marks, trade names, proprietary information, trade secrets and other intellectual property rights therein of Finning (collectively “Finning Intellectual Property”). The Finning Intellectual Property rights are owned and controlled by Finning, its licensors, and certain other third parties. All rights, titles and interests in and to the Finning Intellectual Property is the property of Finning, its licensors or certain other third parties, and is protected by Canadian and international copyright, trademark, trade dress, patent and/or other intellectual property and unfair competition rights and laws to the fullest extent possible. Subject to the applicable Terms of Use, Finning grants Customer a non-exclusive and revocable license to use the Finning Intellectual Property owned by and made available by Finning to the extent necessary to use the goods and/or services purchase under this Agreement and otherwise exercise its rights herein.
17. Ownership of Intellectual Property Rights in the Data. All intellectual property rights in any data generated (“Output Data”) as part of the goods and/or services sold under this Agreement will vest in Finning upon the creation absolutely and Customer hereby assigns absolutely all of its intellectual property rights in and to the Output Data, except that Customer is permitted to use such Output Data solely for its internal business purposes. For clarity, this provision only applies to data generated as part of the performance of this Agreement and does not apply to the raw data (“Raw Data”) that is provided by Customer or the users. Where Raw Data is provided by Customer, Customer will grant Finning a non-exclusive, irrevocable, transferrable, worldwide license to use the Raw Data that has been provided by Customer.
18. Data Sharing. The Customer understands, acknowledges and agrees that Finning and Caterpillar Inc., and its and their respective group of companies and business affiliates and contractually related third parties can and will collect and have possession of information about the Customer, including information about the Customer’s ownership, rental, maintenance and use of the Customer’s Caterpillar machines and other equipment provided by or through Finning. Details relating to the information that is collected, how it is collected, how it is used and shared, and how it is kept secure are all contained in Finning’s Data Governance Statement which can be viewed at http://www.finning.com/en_CA/policies/data-governance.html and the Caterpillar Data Governance Statement which can be viewed at www.cat.com/en_US/legal-notices/data-governance.html.
19. Electronic Communication. With the Customer’s consent, Finning may send electronic communications to inform the Customer of products or services available from Finning or its affiliated entities. When collecting information that might be used to contact the Customer about Finning’s products and services, Finning will give the Customer the opportunity to opt-out from receiving such communications. Moreover, each e-mail communication Finning send includes the ability to unsubscribe allowing the Customer to stop delivery of that type of communication. If the Customer elect to unsubscribe, Finning will remove the Customer from the relevant list.
20. Prohibition on Exports. Goods sold under this Agreement controlled by the U.S. government is authorized for export only to the country of ultimate destination for use by the ultimate consignee or end-user(s) herein identified. They may not be resold, transferred, or otherwise disposed of, to any other country or to any person other than the authorized ultimate consignee or end-user(s), either in their original form or after being incorporated into other items, without first obtaining approval from the U.S. government or as otherwise authorized by U.S. law and regulations.
21. Independent Contractor. The parties agree that Finning is an independent contractor and not an employee or agent of the Customer. Equipment operators and other Customer employees, agents, or subcontractors assigned to assist Finning may receive temporary instructions, directions or control from Finning but shall at all times be considered the employees, agents, subcontractors of the Customer and not of Finning.
22. Amendments. No modifications, revisions or amendments to this Agreement will be binding unless made in writing and signed by both parties. No action, delay, or failure to act by Finning shall constitute a waiver of any right available to Finning under this Agreement except to the extent as may be specifically agreed to in writing by Finning.
23. Assignment; Validity. This Agreement is not assignable without the prior written consent of Finning, which consent may be withheld at Finning’s sole discretion. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
24. Applicable Law. This Agreement and each of the documents contemplated by or delivered under or in connection with this Agreement are governed by and are to be construed in accordance with the laws of the Province of Alberta and the laws of Canada applicable therein and treated in all respects as an Alberta contract. The parties to this Agreement hereby irrevocably and unconditionally attorn to the exclusive jurisdiction of the courts of the Province of Alberta and all courts competent to hear appeals therefrom.
