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The following terms and condition shall apply to the provision of services and/or designs by NCC Electronics Ltd.:
S1. NCC ELECTRONICS LTD. is hereafter referred as "NCC" and the purchaser or customer is hereafter referred to as the "customer".
S2. Terms and conditions found on nccelectronics.com also apply. In the event of any conflict between the terms and conditions found on the nccelectronics.com website and these terms and conditions as it relates to the provision of services by NCC, these terms and conditions shall control.
S3. In no event shall NCC be liable for loss, injury or damages of any kind or nature resulting from (i) the operation of equipment, (ii) software not furnished by NCC, (iii) improper or negligent use or operation of equipment, or (iv) equipment altered or repaired by personnel other than those in the employ of NCC or authorized in writing by NCC to repair the equipment.
S4. NCC shall not be liable for any loss, damages or injury to persons or property caused in whole or in part by (i) acts or omissions of the Customer, its employees, contractors, or suppliers; or (ii) the failure and/or malfunction of any tools, equipment, software, facilities, services or devices not furnished by NCC.
S5. NCC represents that it will utilize the best workmanship that is reasonably available at all times. NCC will correct at no charge to the customer services or drawings prepared or provided by NCC found to be defective other than as a result of incorrect or deficient information provided by the customer and/or its agent, including but not limited to drawings, specifications, processes and/or machine functionality provided by the customer and/or its agent to NCC, and provided the customer provides written notice to NCC of such defect within thirty (30) days of installation or start up of the subject equipment, whichever is earlier.
S6. UNDER NO CIRCUMSTANCES SHALL NCC BE HELD LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR FOR LOST PROFITS AS THE RESULT OF INCORRECT DRAWINGS, PRODUCTS, OR SERVICES SUPPLIED BY NCC. Customer agrees to limit its claims for relief to the correction of said services or drawings by NCC without additional charge. Corrections will be made only following proper written notice from an authorized representative of customer.
S7. NCC DOES NOT MAKE, AND CUSTOMER SPECIFICALLY WAIVES ANY CLAIMS FOR, ANY SPECIFIC AND/OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE RELATING TO NCC'S SERVICES OR PRODUCTS.
S8. Customer acknowledges that it is relying upon its own expertise and/or the expertise of its subcontractors to furnish correct designs, project specifications and related information to NCC; and customer further realizes that NCC is relying upon the accuracy of same.
S9. Customer agrees that it will indemnify and hold NCC harmless from any costs, expenses, damages, legal fees, or legal actions incurred by NCC resulting from services performed by NCC unless caused by the gross negligence or willful misconduct of NCC, and shall specifically indemnify and hold NCC harmless for any costs, expenses, damages, legal fees and legal actions which NCC may incur as a result of any default, breach, misrepresentation, omission or the like caused by the customer.
S10. Intentionally left blank
S11. Customer acknowledges that NCC is or will be performing its service for the customer only, and NCC does not intend (directly or by implication) to offer or furnish its services for the benefit of any assignee of the customer except as otherwise specifically negotiated between NCC and the customer (or proposed assignee) on a case by case basis.
S12. Customer shall be deemed to have accepted NCC's services as tendered if, within 7 days of customer's receipt of said services or start up of the subject equipment, whichever is later (but in no event later than thirty (30) days after receipt of such services), customer does not file written objections to same, specifying in detail the reasons for its partial or total rejection.
S13. The customer agrees not to solicit the employees of NCC or its affiliates for employment with the customer or the customer's affiliates. Should the customer (including its agents) make a direct or indirect effort whatsoever to hire, retain or encourage NCC employees to leave NCC during the performance of any contract, purchase order or release for the customer, or for the six-month period subsequent to the completion of said work, and such customer (or its agents) hire or contract with an NCC employee in violation of this provision, the customer agrees that NCC shall be entitled to damages equal to one year of lost revenue associated with such employee and/or lost work.
S14. It is fully understood and agreed that the customer will defend and save NCC harmless from all costs, expenses, damages, reasonable attorney fees and judgments arising from any claim against NCC for infringement or alleged infringement of copyrights, patents, trade secrets or any improvements thereof, if said infringement or alleged infringement relates to or results from any designs and/or specifications furnished by the customer.
S15. It is expressly agreed and understood by customer that the work it has requested of NCC is special and unique. Therefore, if customer prematurely cancels or terminates NCC's service prior to completion, customer shall immediately remit that full amount incurred by NCC for services rendered to said date of termination, in accordance with the prices and charges as set forth in the quotation or contract. Customer shall also remit forthwith payment for any special materials or costs incurred by NCC on behalf of the customer associated with the terminated work.
S16. NCC shall retain title to all drawings, products and other written work performed for customer until customer has fully paid for same, regardless of whether or not NCC has released some or all of said work to customer from time to time. Customer agrees to execute such reasonable documents requested by NCC evidencing this title retention. In the alternative, if NCC does not elect to retain title, customer grants NCC a continuing security interest in such drawings and written work until customer has fully paid for same. Such security interest shall be further defined under, and enforceable pursuant to, the Uniform Commercial Code of the State of Michigan and/or the applicable State, and the laws of the Province of Ontario. Customer authorizes NCC to file any appropriate document evidencing this security interest, including but not limited to the filing of a financing statement with the appropriate government entity.
S17. For work performed in the Province of Ontario (and/or in any other Province, if required by the laws of such Province), NCC's designs and services are based upon an engineering prestart review conducted by a professional engineer and must be reviewed by a professional engineer. Where an engineer prestart review is not required, NCC's designs and services are based upon a task-based risk assessment provided by the customer. NCC does not hold itself out as expert in specific equipment features or government regulations with regard to that equipment, nor does it hold itself out as expert in all laws regarding occupational safety and heath matters, at the federal, provincial, and/or local levels. Customer assumes full responsibility for providing for and installing all safety features of the equipment and/or for complying with the Ministry of Labour and Occupational Health and Safety Act regulations prior to utilization of the equipment. Further, customer is responsible promptly following completion of design and installation to conduct a post-installation risk-assessment to insure that the design and/or services adequately protect all tasks associated with and/or reasonably contemplated for the equipment.
S18. Customer agrees to a ninety (90) day limitation period from delivery of products and/or final services in which to initiate any actions against NCC for alleged breach of contract and/or associated claims.
S19. Notwithstanding any legal and/or equitable rights and remedies a party might have in the event the other breaches or defaults in any one or more provisions or promises, the parties (and for and on behalf of their heirs, successors, assigns, agents and representatives), forever and absolutely give up the right to declare a rescission or revocation of any portion or all of the transaction.
S20. Unless modified by the applicable quotation, any invoice balance remaining unpaid beyond 30 days from date of issuance shall incur interest at the rate of 2% per month (24% per annum) thereafter.
S21. The parties agree that any quotation provided by NCC is not assignable, provided some shall be construed as applying to the heirs, successors, guardians, and/or legal representations of the respective parties.
S22. The failure of any party to enforce any right, privilege, provision, condition or covenant shall not constitute a waiver of the right to enforce same at a later date.
S23. All of the terms, conditions, privileges, right, representations and the like contained herein shall be deemed severable, so that if one or more is held to be invalid or unenforceable, such holding shall not alter, modify or impair the effect of the remainder of these terms and conditions or other portions of any terms, provisions, covenants, privileges, rights or the like not held to be invalid or unenforceable and the provision found to be invalid or unenforceable shall be enforced to the fullest extent possible consistent with the holding.
S24. All notices, offers, acceptances, requests and other communications hereunder shall be in writing and shall be deemed to have been given if delivered or mailed by certified mail, return receipt requested, to the proper party at the address last designated as correct by the parties.
S25. The parties agree to execute any and all documents, agreements or similar items which are required under these terms and conditions and/or provisions of the applicable quotation for purposes of carrying out the applicable quotation and/or the intent of the quotation. Further, customer agrees to execute all documents reasonably requested by NCC to signify customer's approval of any design criteria and/or design specifications that NCC might originate on behalf of the customer.
S26. These terms and conditions and the related quotation and/or order acknowledgment constitutes the full agreement between the parties, and nothing to the contrary either orally or in other documents shall be of any force or effect. These terms and conditions and the related quotation or order acknowledgment may be modified only in writing as agreed to between the parties, and only if such is specified to be a modification or amendment to the subject document.
S27. A required performance shall be temporarily excused during such time as its fulfillment is rendered impossible or commercially unreasonable as the result of any unforeseen event outside of the control of the party for whom performance is otherwise required, including but not limited to an act of God, labor strike, terrorist act, epidemic, pandemic or civil disturbance.
S28. The terms and conditions and the related quotation and/or order acknowledgment shall be governed by the laws and court decisions of the Province of Ontario as to interpretation, definitions and rights of one or more of the parties' involved, but without regard to the choice of laws rules or decisions that might otherwise apply another Providence's or country's laws to the dispute.
S29. In the event NCC is not providing an electrician or tradesperson for installation, any issues related to wiring faults, poor or incomplete installation, quality of electrical materials used, etc. should be handled between the customer and electrician directly, and NCC shall not be responsible for such issues or any injuries, damages or losses resulting therefrom.
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