Title and right of possession for equipment or hardware ( the “Material”) supplied by the customer for repair or modification hereunder shall remain with the Customer, subject to any applicable lien rights of Liburdi Turbine Services (hereinafter referred to as LTS). Title and right of possession for new equipment or hardware ( the "Material") manufactured and supplied by LTS hereunder shall remain with LTS until such time as LTS has been paid the full amount of the purchase price by the Customer. Reasonable access to the Material while it is at LTS facilities shall be provided to employees or representatives of the Customer.
All prices quoted shall remain in effect for a period of thirty (30) days from the date of issue. Unless otherwise agreed, all prices are FOB Dundas, Ontario, Canada and do not include shipping, brokerage, duties or taxes. Any present or future sales, use, excise or other similar tax applicable to the sale, repair, modification or use of the Material hereunder shall be paid by the Customer, or in lieu thereof, the Customer shall provide LTS with a tax-exemption certificate acceptable to the taxing authorities.
Payments are due 30 days after the receipt of the shipment and invoice. If shipments are delayed by the Customer, payments shall become due 30 days from the date when LTS gave written notice that the order was ready to ship. If the work to be performed hereunder is interrupted or cancelled by the Customer, payments shall be made based on the price and the percentage of completion or upon the time and material cost incurred. Material held for the Customer shall be at the risk and expense of the Customer. Overdue payments are subject to finance charges at the rate of 1 1/2% of invoice price per month.
LTS shall not be responsible or liable for any loss, damage, detention or delay cause by war, invasion, insurrection, riot, the order of any civil or military authority, or by fire, flood, weather or other acts of the elements, breakdown, lockouts, strikes, or labour disputes, the failure of LTS suppliers to meet their contractual obligations, or, without limitation of the foregoing, any other cause beyond the reasonable control of LTS and the receiving of the product by the Customer shall constitute a waiver of all claims for loss or damage due to delay.
LTS warrants to Customer that all work performed by LTS during the MANUFACTURE of the Material, and the REPAIR and UPGRADE of the Material is free from defects in materials and workmanship under normal and proper use for a period of one (1) year from the date of shipment or 8,000 hrs of operation, whichever comes first. Unless otherwise expressly agreed in writing, LTS shall, at its option, repair or replace the defective Materials to make good such defects which are shown to the reasonable satisfaction of LTS to be due to LTS workmanship. On expiration of the warranty period, any liability of LTS shall terminate. The obligation of LTS under this Warranty shall not be applicable should the Material be subject to any design deficiencies, accident, abuse, misapplication, misuse, negligence, or has not been properly installed, maintained, operated, stored, or packed for transport while in Customer’s possession, in accordance with the original equipment manufacture’s operating procedures. Liability for service/repair related work shall not exceed the cost of the process charges, repair or services rendered except by prior written agreement.
Any work done by LTS in carrying out its obligation under this Warranty shall be performed at LTS Dundas plant unless otherwise agreed between the parties. LTS shall not be liable for any expenses or liability sustained in connection with customer technical support or trouble shooting and the removal of any defective Material or for any expenses, taxes, duties or liabilities sustained in connection with any shipment to or from LTS Dundas plant.
If it is not practical to remove such defective Material thereof from the site where discovered to be defective, LTS shall use its best efforts to perform its obligations hereunder at such site provided, however, that Customer shall pay LTS for all reasonable traveling and living expenses required in connection therewith and also the cost for shipping any replacement Material required from LTS Dundas plant, or from any other point to such site, together with any other cost that may be incurred had the work been carried out at LTS Dundas plant.
The obligations of LTS with respect to any claim hereunder, shall be conditional upon the filing of such claim in writing by the Customer within ninety (90) days after discovery by the Customer of the defect to which the claims refers. This Warranty is the only Warranty by LTS and is expressly in lieu of all other conditions and warranties, express, implied or statutory.
LTS liability on any claim of any kind, including negligence, for any loss or damage arising out of, connected with, or resulting from this contract, or from the performance or breach thereof, or from the design, manufacture, sale, delivery, resale, installation, engineering recommendation, technical direction, inspection, repair, operation/use of any replacement parts, or repair work covered by or furnished under this contract shall in no case exceed the billing price of the particular work which gives rise to the claim. In no event, whether as a result of breach of contract or warranty or alleged negligence, shall LTS be liable for direct resultant physical damage to the engine or plant, and special or consequential damages including, but not limited to, loss of profit or revenue, loss of use of the Material or any associated equipment, facilities or services, downtime costs, cost of environmental restorations, cost of replacement or purchased power, or claim of customers of the Customer for such damages.
LTS warrants that the Material included herein is free from defects in material and workmanship and will perform according to its specifications. The responsibility of LTS is limited to the handling and processing of the Material. Injury, accident to personnel and/or damage to the Material or other surrounding equipment resulting from usage is the responsibility of the user. Customer indemnifies LTS from any demands, claims or causes of action relating to the use of the Material supplied by LTS including legal expenses incurred by LTS.
Original designs and all technical information supplied by LTS are “CONFIDENTIAL”, “TRADE SECRETS” and “PROPRIETARY” to LTS. Such design may or may not be covered by "PATENT" and in all cases ownership of the design and proprietary information remains with LTS and cannot be divulged to third parties, copied or MANUFACTURED without written consent from LTS.
LTS reserves the right to subcontract portions of the workscope and/or supply of hardware to LTS qualified vendors without notification to the Customer. Not withstanding any assignment, the whole of the contract and all terms and limitations shall remain in effect with LTS.
All software and control logic provided is proprietary to and the property of LTS. The customer is granted a non transferable single users license for use of the software. Software or control logic provided with the Material is licensed for use only in conjunction with the Material purchased from LTS.
Any amendments to the terms set out herein between LTS and the Customer, or the addition of any terms not otherwise set herein, shall be in writing and acknowledged thereon by both LTS and the Customer.
The terms of this contract between LTS and the Customer shall be construed in accordance with the laws of the Province of Ontario and the Country of Canada. Any dispute or controversy which cannot be resolved by mutual agreement within a reasonable amount of time shall be referred to arbitration for settlement in Toronto, Ontario under the rules of conciliation and Arbitration of UNCITRAL by three appointment arbitrators whose award shall be final and not subject to appeal.