Terms and Conditions
- Definitions: “The Company” means the supplier of material and /or services under this Contract, being one or all the following entities: O’Dell Associates Inc., O’Dell Associates (Toronto) Inc., and O’Dell Associates (Ottawa) Inc. “Contractor” means the entity to which the Company is supplying materials and /or services under the Contract. “Contract”, as between the Company and the Contractor, is comprised of the purchase order for the sale of material and /or services, these Terms and Conditions, the Company’s final quotation, and the Company’s order acknowledgement. In the event of any conflict, these Terms and Conditions shall take precedence over other documents included in the Contract. The Contract represents the entire agreement between the Company and the Contractor. “Contract Price” is the agreed upon price stated in the Contract, specifically in the Company’s final quotation, for the sale of material and /or services. Applicable taxes considered in addition to the Contract Price if not otherwise stated.
- Price Policy: The Contract Price is in effect for 45 days from time of the Company’s provision of its quote. All unit prices and cost of labour may be increased during the work, depending on the date of release and/or shipment of the order, due to unforeseen events including announced increases in the Company’s list prices, delay in original project schedule, or increases in labour or material costs in the industry. The Contractor hereby agrees to such increases from time to time, providing notice is given by the Company in writing upon the Company becoming aware of the need to increase the Contract Price.
- Terms of Payment: Terms of payment are subject at all times to prior approval of the Company’s credit department. Terms of payment are net 30 days of the date of the invoice, unless previously otherwise agreed to in writing by the Company. If at any time the financial condition of the Contractor or other circumstance affecting the credit decision, in the Company’s opinion, does not justify continuance of production of products, shipment of products or provision of services, on the terms of payment specified, the Company may require full or partial payment in advance, or may, at its sole discretion, stop or delay production, shipment of products or provision of services. In the event of default in payment, the Contractor agrees to pay all costs of collection incurred by the Company including, but not limited to, collection agency fees, lawyer/attorney fees (on a full indemnity basis), legal costs, and court costs. All past due amounts shall bear interest at a rate as follows, so long as it is in line with the Customer Credit Application
(1) 2% per annum above the prime rate for the first 60 days.
(2) 4% per annum above the prime rate after the first 60 days.
Such interest shall be compounded on a monthly basis.
Where there is conflict between the Customer Credit Application and these Terms & Conditions as it relates to interest rates, the Customer Credit Application shall govern.
- Shipping Terms: The Company may ship the goods in one or more lots. Such lots may be separately invoiced and shall be paid for when due per invoice, without regard to subsequent deliveries. Delay in the delivery of any lot shall not relieve the Contractor of its obligation to accept remaining deliveries. If, because of the Contractor, any shipment must be diverted or returned to the Company, the Contractor shall pay all demurrage, transportation and other costs incurred as a result thereof.
- Storage: At the Company’s sole option, and without prejudice to its ability to pursue all available remedies for breach of this contract or these terms and conditions, if any goods purchased hereunder remained unclaimed by the Contractor for 30 days after written notification by the Company that they are ready for delivery, the Contractor shall owe the Company storage fees as negotiated, calculated per month.
- Claims: Claims for damages or factory shortages will not be considered unless made in writing to the Company within five (5) days after receipt of the goods and must be indicated on the bill of lading, with pictures provided, and factory order numbers. For further clarity, O’Dell is not liable for indirect damages.
- Termination by Contractor: The Contractor may cancel its order only with the prior written consent of the Company, which must be given at least five (5) days in advance. The Company shall have full discretion of whether to consent to the cancellation; if it does not consent, the Contract remains in force including all its obligations therein. All cancellations will be subject to payment by the Contractor to the Company of reasonable and proper cancellation charges, as determined by the Company. The Contractor may return inventory stock items with the prior written authorization of the Company, subject to a 30% restocking fee and shipping costs. No returns of special or custom products will be permitted. No returns will be permitted more than sixty (60) days after delivery.
- Termination by the Company: In addition to any remedies that may be provided under this Contract, the Company may terminate this Contract with immediate effect upon written notice to the Contractor if the Contractor:
(i) fails to pay any amount when due under this Contract and such failure continues for 30 days after receipt of the related invoice; or,
(iii) becomes bankrupt or makes a general assignment for the benefit of its creditors, or if a receiver of the Contractor is appointed. The Company may terminate this Contract at any time for convenience, and the Contractor shall only be entitled to such goods and services as has been paid for at that time if the Contractor is in good standing under the Contract at the time of termination.
- Shipment Dates: Shipment dates are estimates only, and the Company cannot be held liable for any deviations from such estimates by the Company or shipping carriers. No contract has been made to ship in a specified time unless in writing and signed by two (2) authorized officers of the Company. For clarity, the Company shall not be liable for any damages resulting from the disapproval of the Contractor by the Company’s credit department, or for any damages outside of the Company’s control, including, but not limited to, any act of God, act of the Contractor, governmental legislation or order, labour unrest, delay in transportation, or inability to obtain the necessary labour, materials, or manufacturing facilities.
- Product Changes: The Contractor shall communicate any change in the Specifications for any product. In the interest of continuous product improvements, the Company reserves the right to change specifications and/or design if required.
- Limited Warranty: The Company manages the vendor warranties for patent defects on behalf of the customer. No warranty or guarantee is offered by the Company regarding labour provided, and the Contractor hereby indemnifies the Company from any claims regarding labour provided by the Company. As an additional term of the warranty, the Company must receive a start-up information report for goods containing motor-compressors and/or furnaces from the Contractor. The registration/start-up form must be completed and returned to the Company within 5 days of original equipment start-up, or start-up date and ship date will be deemed the same for warranty determination, and the warranty shall expire twelve (12) months from that date. Goods sold under this agreement are warranted only to the extent that the manufacturer warranted them to the Company or directly to the Contractor.
- Start-up: A minimum two-week notification is required on all orders requiring start-up by the Company. Access to the roof may be required for startups.
- Indemnification and Waiver: The Company’s liability with respect to the goods and services sold hereunder shall be limited to the warranty provided under this Contract and shall not exceed the lesser of the cost of correcting defects in the goods sold or the original purchase price of the goods. The Contractor agrees to indemnify and hold harmless the Company against all claims, demands, losses, costs, damages, or actions by third parties that arise out of or are attributable in any respect to the involvement of the Contractor and the Company as parties to this Contract. Under no circumstances is O’Dell liable to the Contractor or any other person or entity for special, incidental, consequential, punitive, exemplary or indirect damages, including loss of goodwill, loss of opportunity or profit.
- Project Design and Specifications: The Company does not accept any order subject to project design and specifications. The Contractor agrees to accept full and sole responsibility to determine whether the product ordered by the Contractor meets the design and specification requirements of its intended use.