VIQUA Terms & Conditions of Sale
This document sets forth the Terms & Conditions of Sale for goods manufactured and/or supplied, and services provided, by VIQUA – A division of Trojan Technologies Group ULC (“VIQUA”) and sold to the original purchaser thereof (“Buyer”). The term “VIQUA” includes only VIQUA – A division of Trojan Technologies Group ULC, and none of its affiliates. Unless otherwise specifically stated in a previously-executed written purchase agreement signed by authorized representatives of VIQUA and Buyer, these Terms & Conditions of Sale establish the rights, obligations and remedies of VIQUA and Buyer which apply to this offer and any resulting order or contract for the sale of VIQUA’s goods and/or services (“Products”).
1. APPLICABLE TERMS & CONDITIONS
5. PRICES & ORDER SIZES
7. LIMITED WARRANTY
9. PATENT PROTECTION
10. TRADEMARKS AND OTHER LABELS
11. SOFTWARE AND INTELLECTUAL PROPERTY
12. PROPRIETARY INFORMATION AND PRIVACY
13. CHANGES AND ADDITIONAL CHARGES
14. SITE ACCESS / PREPARATION / WORKER SAFETY / ENVIRONMENTAL COMPLIANCE
15. LIMITATIONS ON USE
16. EXPORT AND IMPORT LICENSES AND COMPLIANCE WITH LAWS
17. RELATIONSHIP OF PARTIES
18. FORCE MAJEURE
19. NON ASSIGNMENT AND WAIVER
20. WIRE TRANSFERS
21. LIMITATION OF LIABILITY
22. APPLICABLE LAW AND DISPUTE RESOLUTION
23. ENTIRE AGREEMENT & MODIFICATION
These Terms & Conditions of Sale are contained directly and/or by reference in VIQUA’s offer, order acknowledgment, packing slip, and invoice documents. The first of the following acts constitutes an acceptance of VIQUA’s offer and not a counteroffer and creates a contract of sale (“Contract”) in accordance with these Terms & Conditions: (i) Buyer’s issuance of a purchase order document against VIQUA’s offer; (ii) acknowledgement of Buyer’s order by VIQUA; or (iii) commencement of any performance by VIQUA pursuant to Buyer’s order. Provisions contained in Buyer’s purchase documents (including electronic commerce interfaces) that materially alter, add to, or subtract from the provisions of these Terms & Conditions of Sale are not a part of the Contract.
The whole or any part of an order may be cancelled only with the prior written consent of VIQUA. Such consent may be subject to payment of reasonable cancellation charges in an amount determined by VIQUA. VIQUA may cancel all or part of any order prior to delivery without liability if the order includes any Products that VIQUA determines cannot be supplied and/or may not comply with export, safety, local certification, or other applicable compliance requirements.
Delivery will be accomplished EXW or CIP VIQUA’s facility located in Guelph, Ontario, Canada (Incoterms 2010), unless otherwise expressly agreed between the parties. Legal title and risk of loss or damage pass to Buyer upon transfer to the first carrier, regardless of final destination and mode of transit. VIQUA will use commercially reasonable efforts to deliver the Products ordered herein within VIQUA’s normal lead-time necessary for VIQUA to deliver the Products sold hereunder. Should Buyer fail to effect pick-up of Product as previously agreed in a timely manner, VIQUA may, at its discretion, assess reasonable storage charges to the account of Buyer.
Buyer will promptly inspect and accept any Products delivered pursuant to this Contract after receipt of such Products. In the event the Products do not conform to any applicable specifications, Buyer will promptly notify VIQUA of such nonconformance in writing. VIQUA will have a reasonable opportunity to repair or replace the nonconforming Product at its option. Buyer will be deemed to have accepted any Products delivered hereunder and to have waived any such nonconformance in the event such a written notification is not received by VIQUA within thirty (30) days of delivery to Buyer destination on order.
Prices do not include any charges for services such as insurance; brokerage fees; sales, use, inventory, or excise taxes; import or export duties; special financing fees; VAT, income, or royalty taxes imposed outside the U.S. or Canada; consular fees; special permits or licenses; or other charges imposed upon the production, sale, distribution, or delivery of Products. Buyer will either pay any and all such charges or provide VIQUA with acceptable exemption certificates, which obligation survives performance under this Contract. VIQUA reserves the right to establish minimum order sizes and will advise Buyer accordingly. Any orders below the minimum order size are subject to a fee as set out by VIQUA. If VIQUA’s delivery of Products surpasses one (1) year in length, then at least on an annual basis, or if changes to the Products are requested or needed, the parties shall conduct good faith discussions regarding changes to the prices for the Products, to reflect VIQUA’s increased costs for which VIQUA shall be entitled to additional fair and appropriate compensation.
All payments must be made in agreed-to currency, normally Canadian or U.S. Dollars. Invoices are due and payable per the terms set at time of purchase or on buyer’s account from date of the invoice, without regard to delays for inspection or transportation, with payments to be made by check to VIQUA at the above address or by wire transfer to the account obtainable from VIQUA Finance, or payment in advance of delivery e.g. credit card, or by other means as VIQUA may require. In the event payments are not made or not made in a timely manner, VIQUA may, in addition to all other remedies provided at law, either: (a) declare Buyer’s performance in breach and terminate this Contract for default; (b) withhold future shipments until delinquent payments are made; (c) deliver future shipments on a cash-with-order or cash-in-advance basis even after the delinquency is cured; (d) charge interest on the delinquency at a rate of 1.5% per month or the maximum rate permitted by law, if lower, for each month or part thereof of delinquency in payment plus applicable storage charges and/or inventory carrying charges; (e) repossess the Products for which payment has not been made; (f) recover all costs of collection including reasonable attorney’s fees; or (g) combine any of the above rights and remedies as is practicable and permitted by law. Buyer is prohibited from setting off any and all monies owed under this from any other sums, whether liquidated or not, that are or may be due to the Buyer, which arise out of a different transaction with VIQUA or any of its affiliates. Should Buyer’s financial responsibility become unsatisfactory to VIQUA in its discretion, VIQUA may require cash payment or other security. If Buyer fails to meet these requirements, VIQUA may treat such failure as reasonable grounds for repudiation of this Contract, in which case reasonable cancellation charges shall be due to VIQUA. Buyer grants VIQUA a security interest in the Products to secure payment in full, which payment releases the security interest but only if such payments could not be considered an avoidable transfer under the U.S. Bankruptcy Code or other applicable laws. Buyer’s insolvency, bankruptcy, assignment for the benefit of creditors, or dissolution or termination of the existence of Buyer, constitutes a default under this Contract and affords VIQUA all the remedies of a secured party under the U.C.C., as well as the remedies stated above for late payment or non-payment.
VIQUA warrants the Products in accordance with its then-current warranty covering the specific Products ordered and for the time periods cited.
Products repaired or replaced under these warranties will be covered under warranty up to the end of the warranty period applicable to the original Products. The above warranties do not include the cost of shipping and handling of returned items.
The limited warranties described above are the only warranties applicable to the VIQUA Products. These limited warranties outline the exclusive remedy for all claims based on a failure of or defect in any of these products, whether the claim is based on contract, tort (including negligence), strict liability, or otherwise. VIQUA expressly disclaims any remedies of “cover” and any warranties implied by law, including but not limited to any warranty of merchantability or fitness for a particular purpose.
None of the VIQUA warranties cover damage caused by improper use or maintenance, accidents, acts of God, or minor scratches or imperfections that do not materially impair the operation of the product. The warranties do not cover products that are not installed as outlined in the Owner’s Manual. All product warranties and guarantees set forth herein shall only be enforceable if (a) all equipment is properly installed, inspected regularly, and is in good working order, (b) all operations are consistent with VIQUA recommendations, (c) operating conditions at the installation site have not materially changed and remain within anticipated specifications, and (d) no reasonably unforeseeable circumstances exist or arise.
VIQUA does not assume any liability for personal injury or property damage caused by the use or misuse of any of the above products. VIQUA shall not, in any event, be liable for special, incidental, indirect, or consequential damages, or for any damages exceeding the price actually paid to VIQUA for the product which gives rise to any claim. VIQUA’s liability shall, in all instances, be limited to repair or replacement of the defective product or part, and this liability will terminate upon expiration of the applicable warranty period. This exclusion also includes any liability which may arise out of third party claims against customer.
Buyer is responsible for and will defend, indemnify and hold harmless VIQUA, its successors-in-interest, assignees, affiliates, directors, officers, and employees against all losses, claims, expenses, or damages which may result from accident, injury, damage, or death due to the negligence or misuse or misapplication of any Products or the breach of any provision of this Contract by the Buyer or any third party affiliated or in privity with Buyer.
VIQUA will not be liable with respect to any claim of patent or other intellectual property infringement made regarding any Product unless such claim is based on an assertion that Product manufactured by VIQUA, in the form in which such Product is supplied to the Buyer, infringes any United States or Canadian patent. VIQUA’s obligations hereunder shall not apply to Product modified, or used in an unauthorized manner, by the Buyer or to the extent that infringement arises as a result of combining the Product with any other equipment, whether or not supplied by VIQUA. Subject to the foregoing, provided that the Buyer notifies VIQUA promptly in writing of any such claim of infringement and authorizes VIQUA to exercise sole control over the defense and/or settlement of any such claim, VIQUA will indemnify Buyer against the reasonable expenses of defending such claim as well as any resulting damages finally awarded against Buyer or agreed to in any settlement but only up to a maximum amount not exceeding the purchase price actually paid to VIQUA for the allegedly infringing Product.
If an injunction is obtained against the further use of allegedly infringing Product, VIQUA shall, at its option and expense, use its reasonable efforts to:
(a) procure for Buyer the right to continue using the Product,
(b) modify the Product so that it is no longer infringing,
(c) replace the allegedly infringing Product with non-infringing Product, or
(d) refund the purchase price paid to VIQUA for the Product, less reasonable depreciation as determined by VIQUA.
The foregoing provisions constitute VIQUA’s sole responsibility and liability, and Buyer’s sole remedy, with respect to actual or alleged infringement of patents or other intellectual property.
Buyer hereby agrees to indemnify VIQUA against all claims relating to or resulting from any actual or alleged patent infringement by VIQUA which arises out of the manufacture and/or supply by VIQUA of Product manufactured according to a design and/or specifications furnished to VIQUA by Buyer or on behalf of Buyer by a person other than VIQUA.
Buyer agrees not to remove or alter any indicia of manufacturing origin or patent numbers contained on or within the Products, including without limitation the serial numbers or trademarks on nameplates or cast, molded or machined components. Cannot remarket without the consent of VIQUA.
All licenses to VIQUA’s separately-provided software products are subject to the separate software license agreement(s) accompanying the software media. In the absence of such express licenses and for all other software, VIQUA grants Buyer only a personal, non-exclusive license to access and use the software provided by VIQUA with Products purchased hereunder solely as necessary for Buyer to enjoy the benefit of the Products. A portion of the software may contain or consist of open source software, which Buyer may use under the terms and conditions of the specific license under which the open source software is distributed. Buyer agrees that it will be bound by all such license agreements. Title to software remains with the applicable licensor(s). All VIQUA contributions to the Products, the results of the services, and any other work designed or provided by VIQUA hereunder may contain or result in statutory and non-statutory Intellectual Property, including but not limited to patentable subject matter or trade secrets; and all such Intellectual Property remains the sole property of VIQUA; and Buyer shall not disclose (except to the extent inherently necessary during any resale of Product sold hereunder), disassemble, decompile, or otherwise reverse engineer said contributions, or any results of the Services, or any Products, or otherwise attempt to learn the underlying processes, source code, structure, algorithms, or ideas.
VIQUA reserves the right to make design changes or improvements to any products of the same general class as Products being delivered hereunder without liability or obligation to incorporate such changes or improvements to Products ordered by Buyer unless agreed upon in writing before the Products’ delivery date.
Buyer is the operator and in full control of its premises, including those areas where VIQUA employees or contractors are performing service, repair, and maintenance activities. Buyer will ensure that all necessary measures are taken for safety and security of working conditions, sites, and installations during the performance of any services. Buyer is the generator of any resulting wastes, including without limitation hazardous wastes. Buyer is solely responsible to arrange for the disposal of any wastes at its own expense. Buyer will, at its own expense, provide VIQUA employees and contractors working on Buyer’s premises with all information and training required under applicable safety compliance regulations and Buyer’s policies. VIQUA has no responsibility for the supervision or actions of Buyer’s employees or contractors or for non-VIQUA items (e.g., chemicals, equipment) and disclaims all liability and responsibility for any loss or damage that may be suffered as a result of such actions or items, or any other actions or items not under VIQUA’s control.
Buyer will not use any Products for any purpose other than those identified in VIQUA’s catalogs and literature as intended uses. Unless VIQUA has advised the Buyer in writing, in no event will Buyer use any Products in drugs, food additives, food, or cosmetics, or medical applications for humans or animals. In no event will Buyer use in any application any Product that requires FDA 510(k) clearance unless and only to the extent the Product has such clearance. Buyer will not sell, transfer, export, or re-export any VIQUA Products or technology for use in activities which involve the design, development, production, use, or stockpiling of nuclear, chemical, or biological weapons or missiles, nor use VIQUA Products or technology in any facility which engages in activities relating to such weapons. Unless the “ship-to” address is in California, U.S.A., the Products are not intended for sale in California and may lack markings required by California Proposition 65; accordingly, unless Buyer has ordered Products specifying a California ship-to address, Buyer will not sell or deliver any VIQUA Products for use in California. Any warranty granted by VIQUA is void if any goods covered by such warranty are used for any purpose not permitted hereunder.
VIQUA shall not be responsible for verifying that any agreement and/or the supply of Product and Services, is in compliance with all applicable laws, ordinances, regulations, codes and orders. If Buyer fails to notify VIQUA in writing that the agreement or such supply is not in compliance with any applicable law, ordinance, regulation, code or order, Buyer shall be responsible for and hereby agrees to indemnify VIQUA against all claims, demands, losses, liabilities, costs and expenses incurred by it as a result of such non-compliance. Unless otherwise expressly agreed, Buyer is responsible for obtaining any required export or import licenses necessary for Product delivery. Buyer will comply with all laws and regulations applicable to the installation or use of all Product, including applicable import and export control laws and regulations of the U.S., E.U., and any other country having proper jurisdiction, and will obtain all necessary export or import licenses in connection with any subsequent export, re-export, transfer, and use of all Product and technology delivered hereunder. Buyer will not sell, transfer, export, or re-export any VIQUA Product or technology for use in activities which involve the design, development, production, use or stockpiling of nuclear, chemical, or biological weapons or missiles, nor use VIQUA Product or technology in any facility which engages in activities relating to such weapons. Buyer will comply with all local, national, and other laws of all jurisdictions globally relating to anti-corruption, bribery, extortion, kickbacks, or similar matters which are applicable to Buyer’s business activities in connection with this Contract, including but not limited to the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”). Buyer agrees that no payment of money or provision of anything of value will be offered, promised, paid, or transferred, directly or indirectly, by any person or entity, to any government official, government employee, or employee of any company owned in part by a government, political party, political party official, or candidate for any government office or political party office to induce such organizations or persons to use their authority or influence to obtain or retain an improper business advantage for Buyer or for VIQUA, or which otherwise constitute or have the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion, kickbacks, or other unlawful or improper means of obtaining business or any improper advantage, with respect to any of Buyer’s activities related to this Contract. VIQUA asks Buyer to “Speak Up!” if aware of any violation of law, regulation, or our Code of Conduct (“CoC”) in relation to this Contract. See www.danaherintegrity.com and Integrity and Compliance | Danaher for a copy of the CoC and for access to our Helpline portal.
Buyer is not an agent or representative of VIQUA and will not present itself as such under any circumstances, unless and to the extent it has been formally screened by VIQUA’s compliance department and received a separate duly-authorized letter from VIQUA setting forth the scope and limitations of such authorization.
VIQUA is excused from performance of its obligations under this Contract to the extent caused by acts or omissions that are beyond its control, including but not limited to Government embargoes, blockages, seizures or freezing of assets, delays, or refusals to grant an export or import license, or the suspension or revocation thereof, or any other acts of any Government; fires, floods, severe weather conditions, or any other acts of God; quarantines; labor strikes or lockouts; riots; strife; insurrections; civil disobedience or acts of criminals or terrorists; war; material shortages or delays in deliveries to VIQUA by third parties. In the event of the existence of any force majeure circumstances, the period of time for delivery, payment terms, and payments under any letters of credit will be extended for a period of time equal to the period of delay. If the force majeure circumstances extend for six months, VIQUA may, at its option, terminate this Contract without penalty and without being deemed in default or in breach thereof.
Buyer will not transfer or assign this Contract or any rights or interests hereunder without VIQUA’s prior written consent. Failure of either party to insist upon strict performance of any provision of this Contract, or to exercise any right or privilege contained herein, or the waiver of any breach of the terms or conditions of this Contract, will not be construed as thereafter waiving any such terms, conditions, rights, or privileges, and the same will continue and remain in force and effect as if no waiver had occurred.
Buyer and VIQUA both recognize that there is a risk of wire fraud when individuals impersonating a business demand immediate payment under new wire transfer instructions. To avoid this risk, Buyer must verbally confirm any new or changed wire transfer instructions by calling VIQUA at +1 (519) 457-3400 and speaking with VIQUA’s A/R & A/P Manager before transferring any monies using the new wire instructions. Both parties agree that they will not institute wire transfer instruction changes and require immediate payment under the new instructions, but will instead provide a ten (10) day grace period to verify any wire transfer instruction changes before any outstanding payments are due using the new instructions.
None of VIQUA, its successors-in-interest, assignees, affiliates, directors, officers, and employees will be liable to Buyer under any circumstances for any special, treble, incidental, or consequential damages, including without limitation, damage to or loss of property other than for the Products purchased hereunder; damages incurred in installation, repair, or replacement; lost profits, revenue, or opportunity; loss of use; losses resulting from or related to downtime of the Products or inaccurate measurements or reporting; the cost of substitute products; or claims of Buyer’s customers for such damages, howsoever caused, and whether based on warranty, contract, and/or tort (including negligence, strict liability or otherwise). The total liability of VIQUA, its successors-in-interest, assignees, affiliates, directors, officers, and employees arising out of the performance or nonperformance hereunder, or VIQUA’s obligations in connection with the design, manufacture, sale, delivery, and/or use of Products, will in no circumstance exceed the amount actually paid to VIQUA for Products delivered hereunder.
All issues relating to the construction, validity, interpretation, enforcement, and performance of this agreement and the rights and obligations of VIQUA and the Buyer hereunder shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein. Any provisions of the International Sale of Goods Act or any convention on contracts for the international sale of goods shall not be applicable to this agreement. The parties submit to and consent to the non-exclusive jurisdiction of courts located in the Province of Ontario.
These Terms & Conditions of Sale constitute the entire agreement between the parties and supersede any prior agreements or representations, whether oral or written. No change to or modification of these Terms & Conditions shall be binding upon VIQUA unless in a written instrument specifically referencing that it is amending these Terms & Conditions of Sale and signed by an authorized representative of VIQUA. VIQUA rejects any additional or inconsistent Terms & Conditions of Sale offered by Buyer at any time, whether or not such terms or conditions materially alter the Terms & Conditions herein and irrespective of VIQUA’s acceptance of Buyer’s order for the described goods and services.
All VIQUA UV systems come with comprehensive warranties on controllers, electrical components, and chambers.
VIQUA is committed to ensuring your experience with our products and organization exceeds your expectations. We have manufactured your UV disinfection system to the highest quality standards. Should you need support, or have questions about your system, please contact our Technical Support team at 1.800.265.7246 or email@example.com and we will be happy to assist you. We sincerely hope you enjoy the benefits of clean, safe drinking water after the installation of your VIQUA disinfection system.
How to Make a Warranty Claim
NOTE: To maximise the disinfection performance and reliability of your VIQUA product, the system must be properly sized, installed and maintained. Guidance on the necessary water quality parameters and maintenance requirements can be found in your Owner’s Manual.
In the event that repair or replacement of parts covered by this warranty is required, the process will be handled by your dealer. If you are unsure whether an equipment problem or failure is covered by warranty, contact our Technical Support team at 1.800.265.7246 or e-mail firstname.lastname@example.org. Our fully-trained technicians will help you troubleshoot the problem and identify a solution. Please have available the model number (system type), the date of purchase, the name of the dealer from whom you purchased your VIQUA product (‘‘the source dealer’’), as well as a description of the problem you are experiencing. To establish proof of purchase when making a warranty claim, you will either need your original invoice, or to have previously completed and returned your product registration card via mail or online.
Specific Warranty Coverage
Warranty coverage is subject to the conditions and limitations outlined under the heading ‘‘General Conditions and Limitations’’ below. Please see specific product manuals for details.
Ten-Year Limited Warranty for UV Chamber
VIQUA warrants the UV chamber on the VIQUA product to be free from defects in material and workmanship for a period of ten (10) years from the date of purchase. During this time, VIQUA will repair or replace, at its option, any defective VIQUA chamber. Please return the defective part to your dealer who will process your claim.
Three-Year Limited Warranty for Electrical and Hardware Components
VIQUA warrants the electrical (controller) and hardware components to be free from defects in material and workmanship for a period of three (3) years from the date of purchase. During this time, VIQUA will repair or replace, at its option, any defective parts covered by the warranty. Please return the defective part to your dealer who will process your claim.
One-Year Limited Warranty for Lamps, Sleeves, and UV Sensors
VIQUA warrants lamps, sleeves, and UV sensors to be free from defects in material and workmanship for a period of one (1) year from the date of purchase. During this time, VIQUA will repair or replace, at its option, any defective parts covered by the warranty. Your dealer will process your claim and advise whether the defective item needs to be returned for failure analysis.
Use only genuine VIQUA replacement lamps and sleeves in your system. Failure to do so voids all certifications, may seriously compromise disinfection performance, and may also damage other system components, thereby affecting warranty coverage.
General Conditions and Limitations
None of the above warranties cover damage caused by improper use or maintenance, accidents, acts of God, or minor scratches or imperfections that do not materially impair the operation of the product. The warranties do not cover products that are not installed as outlined in the Owner’s Manual.
Parts repaired or replaced under these warranties will be covered under warranty up to the end of the warranty period applicable to the original part.
The above warranties do not include the cost of shipping and handling of returned items.
The limited warranties described above are the only warranties applicable to the VIQUA products listed in the ‘‘Specific Warranty Coverage’’ section. These limited warranties outline the exclusive remedy for all claims based on a failure of or defect in any of these products, whether the claim is based on contract, tort (including negligence), strict liability or otherwise. These warranties are in lieu of all other warranties whether written, oral, implied, or statutory. Without limitation, no warranty of merchantability or of fitness for a particular purpose shall apply to any of these products.
VIQUA does not assume any liability for personal injury or property damage caused by the use or misuse of any of the above products. VIQUA shall not, in any event, be liable for special, incidental, indirect, or consequential damages. VIQUA’s liability shall, in all instances, be limited to repair or replacement of the defective product or part, and this liability will terminate upon expiration of the applicable warranty period.
Warranty Instructions for Dealers
- Contact the VIQUA Technical Support team at 1.800.265.7246 or email@example.com.
- Provide the model, the date of purchase, and a description of the product.
- A VIQUA technician will help you troubleshoot the problem.
- You will be advised whether a failed part needs to be returned to VIQUA.
- If a part is required to be returned, a Return Authorization Number (RGA#) and all necessary instructions will be provided. The RGA# must be written on the outside of the package. Please do not send goods back to VIQUA without an RGA#.
- For full warranty details refer to the Owner’s Manual or online at www.viqua.com.