General Terms and Conditions
Application
These Terms and Conditions apply to every sale of any equipment or materials (“Products”), or every supply of technical or maintenance services of any description or kind (the “Services”) by R.W. Tomlinson Limited, its subsidiaries or affiliates (collectively, “Tomlinson”) to the customer (the “Customer”).
Orders
All orders must be placed at a minimum of one full business day in advance except for aggregates.
Pricing
Tomlinson reserves the right to increase pricing with a 30 days’ written notice or according to contract terms. Increases in any applicable taxes will be implemented immediately.
Invoicing and Payment
The Customer shall pay to Tomlinson the price of the Products or Services within thirty (30) days from the date of receiving an invoice from Tomlinson. Tomlinson’s prices do not include applicable taxes. Taxes will be added to the price quoted and appear as a separate line item on the Customer’s Invoice.
All quotes are subject to approved credit. Late charges on balances over sixty (60) days from date of invoice will be charged at a rate of 1.5% compounded monthly for an effective rate of 19.56% per annum until paid. R.W. Tomlinson reserves the right to cease providing Services if accounts are sixty (60) days past due.
Site Access
The Client shall furnish suitable access, including roads and entryways to the point of unloading and reloading in order to facilitate the efficient maneuvering of Tomlinson vehicles. The Customer shall prepare a location for the Products and Equipment that is flat and easily accessible.
The Customer shall be responsible for any damages, fines, fees, or other costs incurred by Tomlinson in accessing the site, including situations where public or private roadways are dirtied by the trucks as a result of the conditions of the access roads and entryways. Tomlinson shall assume no responsibility for any damages associated with any deliveries.
Indemnity
The Customer shall defend, indemnify and hold harmless Tomlinson from and against any and all claims, losses, damages, liabilities, costs, fines, penalties and expenses including, without limitation, reasonable legal fees, for injury or death to persons, or loss or damage to property arising out of or relating to the operation, handling, transportation or use of the Products or Services by or while in the possession of the Customer, its employees, agents, contractors, or carriers. The herein indemnity also includes any claims made against Tomlinson associated with any charges or fines levied pursuant to the Ontario Occupational Health & Safety Act and its regulations or any equally applicable legislation regarding occupational health and workplace safety.
Liability
The liability of Tomlinson is limited to its express obligation to deliver and collect Products, or Services in good condition and working order. Tomlinson shall not be liable for any direct or indirect loss or damage of the Customer resulting from any subsequent failure of the equipment or from its lack of suitability for the work it may be required to perform. The Customer agrees that in no event shall Tomlinson’s total liability arising out of or connected in any way with the provisions of the Products or Services shall exceed ten percent (10%) of the value of the Products or Services in question provided by Tomlinson under the applicable purchase order.
Termination of Agreement
Should the Customer (i) fail to make any payment when it becomes due, (ii) become insolvent, or (iii) fail to maintain and operate or to return the Equipment as provided by the Agreement, or violate any other provisions herein, Tomlinson may at its sole discretion terminate this Agreement without notice to the Customer, re-take possession of the Equipment without becoming liable for trespass, and recover all outstanding amounts due and all expenses incurred in retaking possession of the Equipment.
Title
Title to the Equipment shall at all times remain with Tomlinson and nothing contained in these Terms and Conditions shall be deemed to have the effect of conferring upon the Customer any right or title whatsoever to the Equipment. The Customer shall immediately provide written notice to Tomlinson if any Equipment becomes encumbered by any lien or claim by a third party.
Liens
The Customer shall not at any time suffer or permit any charge or lien, whether possessively or otherwise, to exist against the Equipment, and shall keep the equipment free of all charges, liens and encumbrances. If the Customer fails after demand by Tomlinson to discharge any such lien, charge or encumbrance, Tomlinson may pay the same and recover the amount of any such payment with a fee of twenty percent (20%) of the payment made plus interest at twenty percent (20%) per annum, applied monthly from the Customer on demand.
Sub-letting, Licencing and Assignment
The Customer shall not be entitled to sublet, licence or assign any of their rights under this Agreement or in or to any of the Equipment without the prior express written consent of Tomlinson.
Tomlinson shall be entitled to assign its rights hereunder to any of the Equipment subject to the observance by the assignee of all Tomlinson’s obligations to the Equipment hereunder.
Terms and conditions specific to Tomlinson
For the purposes of this section, “Services” shall refer to Tomlinson services.
Taxes: The Customer shall be liable to pay any taxes, including HST, duties, fees, levies or charges that may be imposed by or payable to any government authority in connection with the purchase of material and Services.
Permits: Permits are not included
Bonding: Bonding is not included
Schedule: Schedule for completing the works to be mutually agreed to. Delays to the start day may result in additional costs.
Geotechnical conditions: Variation in geotechnical conditions from information provided may result in additional costs.
Utilities: Utilities unidentified in the information provided to Tomlinson may result in additional costs.
Quality control: Quality control will be provided by a third party.