Liburdi Turbine Services Inc. and its affiliates (collectively “Liburdi”) provide the following Standard Terms and Conditions of Sale (“Terms and Conditions”), which apply to all quotations, purchase orders, sales and provision of services made by Liburdi (collectively referred to as a “purchase order”). All purchases by a customer, owner, or its agent (“Purchaser”) are expressly limited and conditional upon acceptance of the following Terms and Conditions, and no provision, printed or otherwise, contained in any purchase order, acceptance, confirmation, or acknowledgment which is inconsistent with, different from, or in addition to, these Terms and Conditions are not accepted by Liburdi unless specifically agreed to in writing by Liburdi. A purchase order received by Liburdi and accepted shall be subject to these Terms, and Conditions and shall supersede any and all inconsistent terms and conditions of Purchaser contained in its purchase order accepted by Liburdi.
The term “Product” or “Products” shall mean the product(s) or services including advanced repairs for gas turbine buckets, blades, vanes, nozzles and combustors, including component upgrades, particularly for aero-derivative engines and light industrial, any proprietary repair processes, including Liburdi Powder Metallurgy and FSR Full Solution Rejuvenation heat treatment, and associated engineering services proposed for sale by Liburdi, including any additional Product(s) set out in a purchase order.
All quotations are valid for up to ninety (90) days, unless otherwise specified. Verbal quotations expire on the same day they are made unless confirmed in writing, whereupon they expire ninety (90) days from the date issued.
Prices quoted herein are based upon presently prevailing duties, rates of duties, taxes, special assessments, monetary exchange and freight as applied to the services, materials and/or equipment purchased or imported by Liburdi. Liburdi reserves the right to amend the price(s) where variations or increases in the cost of material, components or parts and in regulated costs such as rate of duties, taxes, special assessments, monetary exchange and freight between the date of quotation and date of delivery are deemed significant by Liburdi.
Liburdi’s price does not include any transportation, crating or packaging costs or charges, or any taxes, excises, duties, tariffs or other governmental charges which Liburdi may be required to pay or collect under any existing or future law, with respect to the sale, services, transportation, delivery, storage, installation or use of any of the Products. All prices and discounts are subject to change without notice prior to acceptance of a quotation.
Purchaser is responsible for the ultimate payment of all federal, state, local, foreign or provincial taxes, fees or charges of any nature whatsoever imposed by any governmental authority, including the harmonized sales tax, value added tax, provincial or state sales tax and duties, that may be assessed or levied on products and services sold hereunder. Unless otherwise stated, prices do not include such taxes, fees or charges which will be added to the sales price where Liburdi has a legal obligation to collect or pay them. If Purchaser is exempt, Purchaser shall provide Liburdi, at the time of confirmation of the sale, with the documentation necessary to support such a claim and to allow Liburdi to document its decision not to collect such tax, fee or charge.
Unless otherwise agreed upon in writing, pricing and shipping terms shall be ExWorks (“EXW”) the manufacturing facility of Liburdi, being Hamilton (Dundas), Ontario (“Dundas”). If Purchaser has not issued inspection or shipping instructions by the time the Product is ready for shipment, Liburdi may select any reasonable method of shipment, without liability by reason of its selection. Shipments made on Purchaser’s behalf may be insured at Purchaser’s expense. If Liburdi is required to arrange for shipment of the Product or any parts thereof, Purchaser shall reimburse Liburdi for all freight, insurance, duties and other shipping related costs. Shipment of Product held by reason of Purchaser’s request or inability to receive Product will be at the risk and expense of Purchaser. Claims for shortages in shipment shall be deemed waived unless made in writing to Liburdi within ten (10) days from date of receipt of the Product.
Liburdi does not hold itself responsible for any loss, damage or pilferage sustained in transit, having obtained “in good order” receipts from the shipper. Therefore, title, risk of loss and/or damage will pass to the Purchaser upon the shipment of the Product(s).
Unless otherwise set out in the purchase order, all payments shall be in United States dollars and all invoices are due and payable upon receipt. Interest will be added to past-due accounts at a rate of 12% per annum. Liburdi will reserve the right to stop, suspend or delay order processing if Purchaser is not in full compliance with the contractual payment terms. If shipments are delayed due to the acts or omissions of the Purchaser, payment will become due on the date Liburdi is prepared to make shipment. Products held for Purchaser because of any delay due to Purchaser’s request to hold or inability to receive the Product will be at the risk and expense of Purchaser. Liburdi, at its sole option, and without incurring any liability, may suspend its performance until such time as the overdue payment is made or Liburdi receives assurances, adequate in Liburdi’s opinion, to indicate that the payment shall be promptly made. In the event of such suspension, the delivery schedule and purchase order price shall be equitably extended and increased taking into account the delay and costs resulting from such suspension. Purchaser shall promptly pay Liburdi for all costs and related overhead costs arising from such suspensions. If Purchaser suspends performance of either party for whatsoever reason, the delivery schedule and purchase price shall be equitably extended and increased, taking into account the delay and all costs resulting from such suspension.
All delivery and shipment dates quoted are approximate and subject to Liburdi’s availability schedule. Liburdi will make reasonable efforts to meet the delivery date(s) quoted; however, Liburdi does not assume liability or damages, consequential or otherwise, because of any delay or failure to deliver all or part of a purchase order for any reason. All delivery promises are predicted upon prompt and timely receipt from Purchaser of all necessary information, material, specifications, drawings, plans, site preparation and documentation and should be reconfirmed by Purchaser at the time of Liburdi’s written purchase order acceptance.
Provided the purchase price is paid in full, Liburdi warrants to the Purchaser that all work performed by Liburdi during the providing of services, whether manufacture or reconditioning of the Product(s) shall be free from defects in material and workmanship under normal and proper use for a period of one (1) year from the date of shipment or 8000 equivalent operating hours (EOH) of engine operation, whichever comes first. Engine and/or Parts must be installed within the first year of delivery to be considered under warranty. Repair of electrical Products, subassemblies, components, electronic modules, controls and other electronic hardware parts are warranted for ninety (90) days from date of shipment. With respect to a field service warranty, the warranty is limited. Once the field services have passed the specifications and is part of Purchaser’s system, Liburdi provides no further warranty. Unless otherwise expressly agreed to in writing, Liburdi shall, at its option, repair or replace the defective work, service or part(s) to make good such defects which are shown to the reasonable satisfaction of Liburdi to be due to a defect in Liburdi workmanship or material. On expiration of the warranty period, any liability of Liburdi shall terminate. The obligation of Liburdi under this warranty shall not be applicable should the Product or part(s) be subject to any accident, abuse, modification, unauthorized repair, misapplication, misuse, improper storage, exposure to climate, negligence, non-specified or not recommended operating conditions, failure to perform proper and regular maintenance or has not been properly installed, maintained, operated, stored, or packed for transport while in Purchaser’s possession, in accordance with the original equipment manufacturer’s operating procedures.
The sole and exclusive remedy of Purchaser for any liability against Liburdi of any kind, including (a) warranty, express or implied whether contained in the Terms and Conditions hereof, or in any terms additional or supplemental hereto, (b) contract, (c) negligence, (d) tort, or (e) otherwise, is limited to the repair or replacement at Liburdi’s Dundas facility by Liburdi of the Product(s) which an examination by Liburdi reveals to be defective during the warranty period, or at Liburdi’s option, to refund to Purchaser the money paid to Liburdi for such Product(s).
Purchaser and Liburdi may mutually agree, in writing, to acceptance of a Product to be designated “as is” (without warranty). Liburdi, at its sole discretion, may request a signed waiver and release from the Purchaser in cases where no warranty is provided.
Liburdi will have no obligation to remedy defects unless, within the warranty period, Purchaser gives Liburdi written notice of its claim and returns the defective Product, after receipt of shipping instructions from Liburdi, to return such Product(s). Purchaser will ship the Product to Liburdi at its Dundas facility, freight prepaid, and Liburdi will return the Product to Purchaser, freight collect. All Products returned for repair or replacement pursuant to this section are to be packaged in accordance with the instructions received from Liburdi or in a manner to ensure the returned Product is not damaged in shipping.
If it is not practical to remove such defective unit(s) or part(s) of a Product from the site where discovered to be defective, Liburdi shall use its commercially reasonable best efforts to perform its obligations hereunder at such site provided; however, Purchaser shall pay Liburdi for all reasonable travelling and living expenses required in connection therewith and also the cost for shipping any replacement material or parts required from Liburdi’s Dundas facility, or from any other point to such site, together with any other cost that may be incurred had the work been carried out at Liburdi’s Dundas facility. The obligations of Liburdi with respect to any claim hereunder, shall be conditional upon the filing of such claim in writing by Purchaser within thirty (30) days after discovery by Purchaser of the defect to which the claims refers during the warranty period. This warranty is the only warranty by Liburdi and is expressly in lieu of all other conditions and warranties, expressed, implied or statutory.
This warranty does not cover Purchaser for furnished and/or specified equipment and/or Purchaser furnished material, components or parts. Resale products shall carry only the warranty offered by the original manufacturer and no warranty by Liburdi.
EXCEPT FOR THE EXPRESS WARRANTY STATED HEREIN, LIBURDI DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE PRODUCTS, SERVICES OR ITS WORKMANSHIP, INCLUDING ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABLILITY OR FITNESS FOR PARTICULAR REASON OR USE.
CONSEQUENTIAL DAMAGES; LIMITATION OF LIABILITY.
LIBURDI WILL NOT BE LIABLE FOR ANY LOST PROFITS, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR AGGRAVATED DAMAGES OF ANY KIND, WHETHER ARISING UNDER WARRANTY, CONTRACT, NEGLIGENCE, STRICT LIABILITY, INDEMNIFICATION, OR ANY OTHER CAUSE OR COMBINATION OF CAUSES WHATSOEVER. THIS LIMITATION WILL APPLY NOTHWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO CASE WILL LIBURDI’S LIABILITY EXCEED THE AMOUNT PAID TO LIBURDI BY PURCHASER FOR THE SPECIFIC PRODUCT(S) RELATED TO THE SPECIFIC PURCHASE ORDER OR INVOICE GIVING ARISE TO SUCH LIABILITY. PURCHASER AGREES TO INDEMNIFY AND HOLD LIBURDI HARMLESS FROM AND AGAINST ALL LIABILITIES, CLAIMS, AND DEMANDS OF THIRD PARTIES OF ANY KIND RELATING TO THE PRODUCT(S) AND THEIR USE ARISING AFTER SHIPMENT OF THE PRODUCT(S).
PURCHASER’S REMEDIES ARE SPECIFICALLY LIMITED TO THE REPAIR OR REPLACEMENT OF THE PRODUCT AND IS EXCLUSIVE OF ALL OTHER REMEDIES. SHOULD THESE REMEDIES BE FOUND INADEQUATE OR TO HAVE FAILED THEIR ESSENTIAL PURPOSE FOR ANY REASON WHATSOEVER, PURCHASER AGREES THAT RETURN OF THE FULL PURCHASE ORDER PRICE TO IT BY LIBURDI SHALL PREVENT THE REMEDIES FROM FAILING THEIR ESSENTIAL PURPOSE AND SHALL BE CONSIDERED BY PURCHASER AS A FAIR AND ADEQUATE REMEDY.
Purchaser agrees that Liburdi shall retain a security interest in the Products and any proceeds thereof to secure any portion of the purchase order price not paid, and Purchaser will, on request, execute a security agreement in such form as is required by Liburdi. Liburdi shall have all rights and remedies accorded by law or equity to a secured seller, including the right to enter upon the premises where the Products shall be located for purposes of removing or rendering them inoperative, and all such rights and remedies shall be cumulative. Purchaser shall maintain insurance against all risks to cover full replacement value of the Products until Liburdi has been paid in full.
Liburdi will be excused from its obligations in the event and to the extent that its performance is delayed or prevented (a) by any circumstance (except financial) reasonably beyond its control or (b) by a calamity, pandemic, adverse climate event, fire, explosion, breakdown of machinery or equipment, plant shutdown, strikes or other labour disputes, riots or other civil disturbances, or voluntary or involuntary compliance with any law, order, regulation, recommendation, request or trade sanctions of any governmental authority. In addition, Liburdi will be excused in the event of its inability to obtain materials, components, parts or supplies necessary for manufacture of the Product, or total or partial failure of any of its usual means of transportation of the Product.
Liburdi’s permission must be obtained before returning any parts or Product whereupon it will furnish shipping instructions and a returned material authorization. Any materials or Product returned without permission will be held at Purchaser’s risk and is liable to non-acceptance or delay in approval of a credit. Only standard stock Product or part may be returned for credit. When permission is granted for the return of Product, a credit will be allowed for the invoiced price less a restocking charge, less insurance and less transportation charges. Any cost incurred in putting the Product or part in saleable condition shall be deducted from the credit allowance.
Purchaser may request changes to the Product after Liburdi’s acceptance of Purchaser’s purchase order, subject to Liburdi’s written approval and Liburdi may quote any changes in price, time of delivery, or other terms associated with the requested change. The proposed change shall not become effective unless and until Purchaser issues a purchase order recording the change and Liburdi confirms its acceptance in writing.
No back charges will be paid by Liburdi, or allowed against it, unless Liburdi is notified in writing of any Product defect claim or omission pursuant to the terms herein. All back charges must be approved in writing by Liburdi before any Product is repaired, replaced or altered in any manner by Purchaser or its designee, or returned to Liburdi.
The Product shall be installed by and at the expense of Purchaser, unless otherwise expressly stipulated and agreed to by Liburdi in writing. It is expressly understood that any technical assistance or installation services furnished by Liburdi will be addressed in a separate written agreement between the parties. In no event will any technical assistance or installation provided by Liburdi constitute a waiver by it of any of these Terms and Conditions or affect or expand Liburdi’s obligations as stated herein. Installation of Products furnished hereunder will be by the Purchaser, unless otherwise agreed to in writing.
Field service will be provided on a per diem charge basis upon written authorization by Purchaser and will be at the rates in effect at the time such services are provided, unless otherwise agreed to in writing. Field service at the job site to diagnose Product problems will be provided on a per diem basis at the then current rates.
Purchaser is solely responsible for identifying and defining all process, climate, environmental and mechanical considerations which may affect the performance, reliability or operation of the Product furnished by Liburdi, including such considerations as selecting and specifying the Product, determining whether the process application may develop or create downstream issues in specifying and designing the solutions. Following delivery, it is Purchaser’s responsibility to (a) protect the Product from corrosion, damage and debris; (b) install the Product in a clean condition and environment consistent with accepted industrial practice or any specific instructions provided by Liburdi; (c) start up, operate and shut down the unit in which the Product has been installed so as to assure that no foreign debris, containments, or other material may form in the Product, or enter the Product from any associated dust, dirt, water, moisture, piping, heat exchangers or other auxiliary equipment which may cause the fouling or corrosion of the Product and (d) start up, operate and shut down the unit in which the Product has been installed in a manner that maintains the process or mechanical loadings within the design conditions.
Injury or accident to personnel and/or damage to the Product or other surrounding equipment or property resulting from usage of the Product is the responsibility of Purchaser. Purchaser indemnifies Liburdi from any demands, claims or causes of action relating to the use of the Product and the related equipment and hardware supplied by Liburdi, including legal expenses incurred by Liburdi.
In order to prevent voidance of warranty, installation and initialization of the Product may require it to be performed by Liburdi employees or Liburdi trained and authorized representatives. Installation services are not included in the purchase price of the Product sold hereunder, unless expressly so stated in the purchase order. Details regarding installation services, conditions and rates, if applicable, are contained in a separate written enclosure. If Purchaser has contracted with Liburdi for installation services or other on-site services, including welding services, or such services are included in this purchase order, Purchaser will complete all site preparation, operating environment and safety requirements before installation begins, to the reasonable satisfaction of Liburdi, particularly where Liburdi is providing services at a construction site. Purchaser will co-ordinate Liburdi’s installation activities with those of Purchaser’s personnel and any other contractors at Purchaser’s facility, including providing assistance, at the Purchaser’s expense, for language and translation, immigration entry requirements for Liburdi personnel or agents and compliance with health and safety requirements, if applicable. It is Purchaser’s responsibility to identify and resolve all physical and procedural conflicts at Purchaser’s facility without cost to Liburdi and to request whatever information and drawings it requires, including power sources.
No change, modification or waiver to any terms or scope of the purchase order or other sales agreement will be binding and valid unless it is accepted in writing and signed by an authorized representative of Liburdi.
No purchase order may be transferred or assigned by operation of law or otherwise, without the prior express written consent of Liburdi. Any transfer or assignment of any rights, duties, or obligations hereunder without such consent shall be void provided however, that Liburdi will not be prohibited from subcontracting all or a part of its obligations under this purchase order.
If, in connection with the sale, purchase, use or maintenance of the Product(s), Liburdi is requested, required or deems it advisable to furnish data or information which it deems proprietary, confidential or both, Liburdi shall not, in any event, submit or be required to furnish such data or information until Purchaser enters into an agreement concerning the confidentiality, non-disclosure, handling, use, copying, retention and return of such information, the form of which agreement shall be determined by Liburdi.
Liburdi retains for itself all proprietary rights in and to all designs, source codes, software, knowhow, engineering details and other data and materials pertaining to all Product(s) supplied by Liburdi and to all know how, discoveries, inventions, patents and other proprietary rights arising out of the work done in connection with the Product(s) or with any and all Product(s) developed as a result thereof, including the sole right to manufacture, perform, service or provide any such Product(s). Purchaser warrants that it will not divulge, disclose or in any way distribute or make use of such information and that it will not manufacture or engage to have manufactured such Product(s), or similar products, utilizing Liburdi’s proprietary rights.
All software and control logic provided with the Product(s) are proprietary to and the property of Liburdi. As applicable, Purchaser is granted a non-transferable single user license for use of the software only in conjunction with the Product purchased from Liburdi.
Liburdi’s failure to exercise any of its rights for any period shall not constitute or be deemed a waiver or forfeiture of such rights.
These terms and conditions in conjunction with any valid quotation provided by Liburdi constitute the entire agreement between the parties with respect to the subject matter hereof and expressly supersedes all proposals and previous negotiations and understandings, whether written or oral, between the parties with respect to the subject matter hereof.
The agreement of the parties shall be construed and enforced in accordance with the laws of the Province of Ontario and the country of Canada. The parties disclaim any applicability of the U.N. Convention of the International Sale of Goods to the order.
Any dispute or controversy which cannot be resolved by mutual agreement within a reasonable amount of time shall be referred to the respective senior management of each party to attempt to resolve the dispute or controversy. Each party agrees to act in good faith to resolve such dispute or controversy. In the event there is no resolution within 45 days of the matter being referred to senior management, either party shall refer the matter to arbitration for settlement in Hamilton (Dundas), Ontario under the rules of conciliation and arbitration of UNCITRAL by three appointed arbitrators whose award shall be final and unappealable.
