General Terms and Conditions
These Terms and Conditions apply to every sale of any equipment or materials (“Products”), the rental of containers, comfort stations, or other equipment (the “Rental Equipment”) 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, “R.W. Tomlinson”) to the customer (the “Customer”).
All orders must be placed at a minimum of one full business day in advance except for aggregates.
R.W. 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 R.W. Tomlinson the price of the Products, Rental Equipment, or Services within thirty (30) days from the date of receiving an invoice from R.W. Tomlinson. R.W. 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.
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.
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 R.W. Tomlinson vehicles. The Customer shall prepare a location for the Products and Rental Equipment that is flat and easily accessible.
The Customer shall be responsible for any damages, fines, fees, or other costs incurred by R.W. 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. R.W. Tomlinson shall assume no responsibility for any damages associated with any deliveries.
R.W. Tomlinson will make every effort to deliver and pick-up during regular business hours on the day of delivery or pickup, but shall not be responsible for any delays caused by inclement weather, traffic conditions, strikes, lockouts, shortages of material, mechanical breakdown or any other reason beyond its control.
This receipt of the Products, Rental Equipment, or Services by the Customer, their representatives, employees or agents shall constitute full acceptance by the Customer for the Products, Rental Equipment, or Services.
The time tor unloading should not exceed one (1) hour. Each additional half (0.5) hour shall be charged to the Customer at the applicable delivery rates in effect at that time.
All prices are for delivery during R.W. Tomlinson’s normal business hours Monday to Friday between 6 a.m. and 5 p.m.. Additional charges will apply for any load in restricted areas and or seasons and for any deliveries during evenings, nights, weekends or statutory holidays.
The Customer shall defend, indemnify and hold harmless R.W. 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, Rental Equipment, 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 R.W. 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.
The liability of R.W. Tomlinson is limited to its express obligation to deliver and collect Products, Rental Equipment, or Services in good condition and working order. R.W. Tomlinson shall not be liable for any direct or indirect loss or damage of the Customer resulting from any subsequent failure of the containers, comfort station and equipment or from its lack of suitability for the work it may be required to perform. The Customer agrees that in no event shall R.W. Tomlinson’s total liability arising out of or connected in any way with the provisions of the Products, Rental Equipment, or Services shall exceed ten percent (10%) of the value of the Products, Rental Equipment, or Services in question provided by R.W. 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 Rental Equipment as provided by the Agreement, or violate any other provisions herein, R.W. Tomlinson may at its sole discretion terminate this Agreement without notice to the Customer, re-take possession of the Rental Equipment without becoming liable for trespass, and recover all outstanding amounts due and all expenses incurred in retaking possession of the Rental Equipment.
Cancellations or changes made one clear business day prior to the scheduled service date are subject to a cancellation fee of ten percent (10%) of the applicable purchase order. No cancellation of an order will be accepted after the Product or Rental Equipment has been loaded at R.W. Tomlinson’s facilities.
Title to the Rental Equipment shall at all times remain with R.W. 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 Rental Equipment. The Customer shall immediately provide written notice to R.W. Tomlinson if any Rental Equipment becomes encumbered by any lien or claim by a third party.
The Customer shall not at any time suffer or permit any charge or lien, whether possessively or otherwise, to exist against the Rental Equipment, and shall keep the equipment free of all )charges, liens and encumbrances. If the Customer fails after demand by R.W. Tomlinson to discharge any such lien, charge or encumbrance, R.W. 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 Rental Equipment without the prior express written consent of R.W. Tomlinson.
R.W. Tomlinson shall be entitled to assign its rights hereunder to any of the Rental Equipment subject to the observance by the assignee of all R.W. Tomlinson’s obligations to the Rental Equipment hereunder.
Terms and conditions specific to Tomlinson Asphalt
Units: All prices quoted per metric tonne
Pricing: Quoted prices are valid for 30 days from original quote day unless specified in a separate contract.
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 aggregates (including any increases in TOARC fees in Ontario).
Delivery: All prices are FOB our asphalt plants
Quantities: Quantities supplied are determined based on scales ticket provided at the R.W. Tomlinson aggregate operation site or WRC site. Our tickets do not require a signature from recipient.
Specification and Testing: All testing of asphalt for compliance with specifications shall be based upon R.W. Tomlinson’s test results during production and where additional tests are requested, shall be based upon samples obtained directly from R.W. Tomlinson’s operations, unless otherwise agreed to in writing by R.W. Tomlinson. No other test results will be accepted.