Terms and Conditions

1. Definitions

“Buyer” means any company, individual or organisation that enters into negotiations, orders or contracts a Performance with Canadian Ingenuity Group. 

“Client“ means the Buyer and any of its affiliates, assignees, employees, representatives, partners, clients or any later purchaser whose purpose is to benefit from a Performance. 

“Contractual Documents“ means, depending on the case, (i) the order form issued by the Buyer as accepted by Canadian Ingenuity Group (ii) the pro forma invoice (or the estimate or the sales offer) issued by Canadian Ingenuity Group and which the Client agreed in writing, (iii) the Product sales contract or Performances contract duly signed by the Parties and/or (iv) any other document signed by a valid representative of Canadian Ingenuity Group attesting to an agreement between Canadian Ingenuity Group and the Buyer about a Performance (the Buyer committing to confirm this agreement at first request by Canadian Ingenuity Group in the manner that would be required (if any) by the banking system and / or the authorities of Democratic Republic of Congo). To avoid any confusion, it is explicitly acknowledged that the content of Canadian Ingenuity Goup‘s website (other than these General Terms and Conditions themselves published on it) is merely indicative and by no means binding on Canadian Ingenuity Group. 

 

“Performance“ means any supply of Products and/or provision of Services by Canadian Ingenuity Group.  

 

“Product” means any piece of machinery, vehicle, machine, equipment, accessory, consumable, spare part, document, component, system, support element and/or any combination of any number of the preceding which are ordered by the Buyer and/or delivered by Canadian Ingenuity Group and/or identified in any Contractual Document as being part of any (current or future) Canadian Ingenuity Group supply. 

 

“Service“ means any service offered or provided by Canadian Ingenuity Group (such as, for example, any set up, maintenance, repair, after-sales, technical training, rental, financing or formalities handling services). 

 

“Canadian Ingenuity Group”  means any of its affiliates which would be substituted for it (or would also become involved by virtue of a Contractual Document) in the provision of a Performance. 

 

2. General Remarks 

The Buyer acknowledges and accepts that Canadian Ingenuity Group Performance are solely governed these General Terms and Conditions, save when (and as) expressly agreed otherwise in writing by Canadian Ingenuity Group. The Buyer may not oppose Canadian Ingenuity Group’s General Terms and Conditions with its own general purchase terms (unless same are countersigned by Canadian Ingenuity Group). 

Notwithstanding any possible presumption which might stem (as the case may be) from legislation or case law, it is hereby clarified insofar as relevant that Canadian Ingenuity Group shall never be held jointly liable with (nor shall its own actions or omissions jointly bind) any other commercial company, whether Canadian Ingenuity Group DRC, any other affiliate of Canadian Ingenuity Group, any commercial company from the group of any manufacturer or supplier of Canadian Ingenuity Group, any subcontractor of Canadian Ingenuity Group nor any other legal entity. 

 

3. Offers – Orders 

All Canadian Ingenuity Group estimates, sales offers, and pro forma invoices are valid seven (7) days as of signature by Canadian Ingenuity Group and expire automatically unless accepted unconditionally in writing within said time period. 

A Performance is deemed definitively agreed on when both parties sign a Contractual Document. Canadian Ingenuity Group only commits to delivering a Performance that conforms to the description in the relevant Contractual Document. Under no circumstances can Canadian Ingenuity Group be held liable for either an error made in the order by the Buyer or for the optimal use the Client should, should not or intends to make of the item. All sales of Products are final and cannot be returned or exchanged. The Buyer acknowledges being a professional and therefore waives all rights to invoke legislated consumer protection rights when ordering from Canadian Ingenuity Group. 

 

4. Pricing 

The applicable price is the one shown in the Contractual Documents. Unless there is an explicit note to the contrary, the price only covers the sales value of the Product (or of the Service supplied). It does not include any taxes, logistics costs (e.g. for Product delivery), administrative costs linked to the registration and/or the first entry into service of Products or accommodation of technicians on secondment.  

 

5. Product Deliveries – Late Deliveries

No deliveries will be made until the Products are paid in full. Delivery will be made to the location indicated in the Contractual Documents or (by default) will be EX – Canadian Ingenuity Group premises (Incoterms 2010). In the event of a different interpretation of Incoterms by the Buyer and Canadian Ingenuity Group, the publication “Incoterms 2010® by the International Chamber of Commerce – ICC Rules for the Use of Domestic and International Trade Terms” will serve as prevailing reference. 

Canadian Ingenuity Group reserves the right to choose the means of transportation of the Products to the place of delivery. Canadian Ingenuity Group assumes no responsibility or obligation to provide advisory regarding the transportation means selected by the Buyer to take delivery of the Products. This choice is the sole responsibility of the Buyer.   

Product delivery times are provided in good faith, but are estimates given for information only. A late delivery of less than six (6) months does not entitle the Buyer to cancel the sale, to refuse to take delivery of the Product or to claim compensation for late delivery, such a delivery period being jointly considered reasonable in the sense of Article 253, Para. 3 of the OHADA Uniform Act on General Commercial Law. Should the delivery period exceed six months, Canadian Ingenuity Group will make a lump sum (all in) payment for full discharge equivalent to 2% of the sales price for every additional and complete month the delivery is delayed. This fixed compensation shall not, however, exceed 10% of the sales price. 

The Client is required to take effective delivery of the Products within seven (7) days of their availability by Canadian Ingenuity Group, failing which the latter shall be entitled to invoice to the Buyer any costs associated with any late delivery (such as, for example, all costs of storage or safeguarding) and / or cancel the sale of the considered Products and redirect at its own discretion such Products to any other potential buyer. 

 

6. Ownership – Title to the Goods 

Canadian Ingenuity Group is entitled to physically withhold any Products as long as the Buyer has not paid Canadian Ingenuity Group the amounts owed in full.  

Even in the case of delivery prior to full payment, Canadian Ingenuity Group remains the exclusive owner of the Products delivered until effective payment of the full price in principal, taxes, interest, compensation and fees by the Buyer. This retention of title does not prevent that the transfer of risk takes place in accordance with the used Incoterm. The Buyer must ensure that the goods are clearly identified at its premises as being the property of Canadian Ingenuity Group until it has acquired full ownership. Canadian Ingenuity Group will be entitled to register title retention to the goods with the Registre du Commerce et du Crédit Mobilier at the Buyer’s expense in application of Article 74 of the OHADA Uniform Act on Security Interests and to invoke its ownership right and recover the Products in question, with no specific formalities, in case the price is not paid in full. Buyer is obliged to cooperate at Canadian Ingenuity Group’s first demand with the effective implementation and registration of the retention of title clause, especially by confirming the serial numbers of the Products to Canadian Ingenuity Group. As long as he did not become owner himself, Buyer may not resell, encumber the Products with a guarantee or another right, nor give the Products in use to a third party. The Buyer will use the Products only in accordance with their destination and in all reasonability (“bonus pater familias”), and engages especially to maintain the Products in accordance with the standards of the manufacturer, in absence of which Canadian Ingenuity Group has the right to do this maintenance at Buyer’s costs.  Under no circumstances, Buyer can invoke administrative, road or other documents (like e.g. the grey card) to deny this retention of title. In case of non-respect of an obligation of Buyer in this paragraph, Canadian Ingenuity Group is entitled to claim a lump sum of 10% of the amount due by Buyer to Canadian Ingenuity Group, without prejudice to Canadian Ingenuity Group’s other rights. 

As long as he did not become owner himself, Buyer will subscribe an insurance with an appropriate insurance company in order to cover the Products against every risk of loss and/or damage. Buyer will designate Canadian Ingenuity Group as the beneficiary of this insurance. At the first demand of Canadian Ingenuity Group, Buyer will send proof of subscription of such insurance, and proof of payment of the premiums. In case of default, Canadian Ingenuity Group may contract itself an insurance and pay the premiums, and Buyer will reimburse the amount of the paid premiums increased with 10%.   

 

7. Payment 

Unless there is an agreement to the contrary duly signed by a valid representative of Canadian Ingenuity Group, all payments to Canadian Ingenuity Group must in all circumstances be made by bank transfer onto the bank account indicated by Canadian Ingenuity Group in its own Contractual Documents bearing a signature (no modification of such bank account details being valid if communicated to the Buyer by phone or by way of a simple e-mail for example, as a way to reduce the risk of potential fraud by third parties). All Canadian Ingenuity Group invoices are payable in readily available funds and in the currency shown in its invoices. The Buyer is not entitled to offset any amounts payable to Canadian Ingenuity Group for a Performance against other current or future outstanding amounts owed to it by Canadian Ingenuity Group for any other reason. A down-payment of at least 50% of the sales price of each Product sold must be paid at order time, failing which Canadian Ingenuity Group will retain the right to refuse the order in question.  

Late payment interest will be automatically charged on all unpaid invoices and amounts. It will be calculated based on the key interest rate of the Central Bank of Democratic Republic of Congo plus 10%. Besides these late payment interests, every payment that was not done within 15 days after a notice of default addressed to the Buyer by registered mail with confirmation of receipt or every equivalent way, will be increased with a lump sum of 15% of the amount due, with a minimum of 65 USD and a maximum of 12.500 USD, without prejudice to the right of Canadian Ingenuity Group to obtain compensation for any additional prejudice suffered as a result of the late payment. 

 

8. Warranties – Responsibilities – Non-Recruitment

Canadian Ingenuity Group’s warranty obligations with respect to hidden Product defects are those provided by the manufacturer or Canadian Ingenuity Group’s own supplier for the relevant Product. On the other hand, the Buyer acknowledges that accepting Product delivery (and/or taking physical possession) implies tacit and unconditional acceptance of all patent defects and therefore releases Canadian Ingenuity Group from any liability in this respect.  

The Buyer acknowledges that Canadian Ingenuity Group is entitled (but not bound) to propose remediation of Products defects, it being agreed that the Buyer shall not have the right to claim back any portion of the sales price and that no compensation or financial indemnity will be due from Canadian Ingenuity Group. The warranty provided by Canadian Ingenuity Group is limited to repairing and/or replacing defective Products (when the conditions of the manufacturer’s warranty are met).  

The Buyer is solely responsible for its own use of the Products. The warranty will be void if a defect results from an action or omission on the Client’s part. 

Storage of the Products by the Buyer, in the Buyer’s premises or in any location designated by the Buyer, will be at the Buyer’s risk and peril and the latter shall be solely responsible for contracting insurance to cover the Products (whether or not such an insurance coverage is mandatory) against the risks of deterioration, fire, theft, vandalism and any other storage-related risks. 

Canadian Ingenuity Group shall in no case be liable to indemnify the Buyer for collateral damages, whether caused by late delivery, by lack of conformity or by any other cause for dissatisfaction related to a Performance, such as loss of profits, shortfall or loss of business opportunity and its potential liability for direct damages will in any case be capped at 25% of the remuneration effectively received by Canadian Ingenuity Group for the relevant Performance. 

Canadian Ingenuity Group is not responsible for accidents related to the use of a Product, for personal injuries or for damages to goods other than the Product unless gross negligence or wilful misconduct on its part. 

By contracting with Canadian Ingenuity Group, the Client agrees not to (and sets forth that its own affiliates shall themselves not) recruit any current or former worker of Canadian Ingenuity Group until the first anniversary of the termination of the considered Performance. 

 

9. Force Majeure 

Canadian Ingenuity Group cannot be held liable in the event of non-performance or deferred performance of any of its obligations (even after six (6) months) if the non-performance or delay is due to an event out of its control or to unforeseeable circumstances over which it has partial or no control. These include delays by the manufacturer, forwarding agents and/or carriers, wars, attacks, acts of terrorism, strikes, social conflicts, natural disasters, embargoes, raw materials or energy shortages, government fiat, floods, fires, explosions, pandemic, etc. In the event of the occurrence of this type of situation, Canadian Ingenuity Group will be released of its contractual obligations and will be entitled to suspend, defer or reduce its Performances during the entire period of the above events or circumstances within the limits of their effects and without any obligation to seek supplies from alternative sources.  

In the event that the situation should last longer than three months, Canadian Ingenuity Group will be entitled to cancel the Performances in question without compensation. However, (1) the Buyer will be required to pay for all Performances already delivered before the events in question, and (2) Canadian Ingenuity Group will be required to refund to the Buyer the portion of the price already paid for Performances that were not delivered, after deduction of all fees and expenses incurred by Canadian Ingenuity Group. 

 

10. Changes in the Product Line

The technical specifications of the Products and the images as described in the Contractual Documents are provided for information only. Canadian Ingenuity Group reserves the right to make modifications to the technical specifications, to adapt them, and to change them based on the manufacturer’s standards. 

 

11. Intellectual Property

With the exception of manufacturer logos, all logos, brands, photos and models appearing in Canadian Ingenuity Group’s commercial documents, including its Internet site, are its sole property. The Buyer acknowledges that no transfer of intellectual property rights takes place when a Performance is provided. All rights remain the exclusive property of Canadian Ingenuity Group. Any partial or full reproduction of the logos, brands, photos, or models, regardless of media, and for any purpose whatsoever, is forbidden without the approval of Canadian Ingenuity Group or of the holders of any related rights. 

 

12. Confidentiality

The Buyer agrees not to communicate, divulge or use, either during or after the agreement period, any information, know-how or technical processes belonging to Canadian Ingenuity Group to which they may have had access or learned about as part of their contractual relationship with Canadian Ingenuity Group.  

 

13. Source of Funds – Money Laundering 

The Buyer acknowledges that by ordering from Canadian Ingenuity Group, they are tacitly stating that their funds were not obtained through money laundering, tax fraud, organised crime, corruption, any illicit traffic (such as, for example, the trafficking of drugs, arms or munitions, human beings or minerals) or terrorist activities.  

 

14. Corruption – Embargoes

Canadian Ingenuity Group representatives are not authorised (except at end of year time and under strict rules) to give business gifts to the Client’s representatives. If, however, gifts were to be made (during the end-of-year season, in particular), they cannot in any way be perceived as being intended to encourage the Buyer to close a deal. 

The Buyer acknowledges that Canadian Ingenuity Group must comply with the prohibition against doing business with people or organisations listed in the resolutions of the UN, EU or other national and international institutions with the power to issue lists of personae not gratae. Should the Client appear on one of these lists, Canadian Ingenuity Group is entitled to refuse to engage in business with same. 

The Buyer expressly commits not to export, transport or resell any of the Products to or in a country which is subject to an international economic embargo. In addition, the Buyer certifies Canadian Ingenuity Group that it has neither exercised any illegitimate influence on Canadian Ingenuity Group employees, advisors or representatives nor corrupted third parties, whether private individuals or a public authority, in order to obtain any public procurement contract, close a deal or gain any advantage in the context of (and/or in connection with) any Performance whatsoever. 

 

15. Suspension and Breach of Performance

In the event of a serious doubt about the Buyer’s ability to fulfil any of its material Performance-related obligation, Canadian Ingenuity Group reserves the right to suspend its own obligations until the Buyer’s satisfactory actions. 

In the event that the Buyer effectively fails to fulfil any of its substantial contractual obligations, Canadian Ingenuity Group is entitled to terminate the contract with immediate effect without referring the matter to a judge, without the obligation to repay the amounts already received, and without prejudice to its right to obtain legal compensation for any other prejudice suffered and without prejudice to its other rights. 

The Buyer expressly waives its rights under Article 292 of the OHADA Uniform Act on General Commercial Law. 

Canadian Ingenuity Group reserves the right to suspend all or part of its Performances and, if required, to recover all delivered Products in the event of defaulted or late payment by the Buyer, if the Buyer is declared bankrupt, is liquidated, if its assets are seized in part or in full, in the event that the Buyer has not fulfilled any obligation resulting from article 6 or a prior relationship between the parties or should Canadian Ingenuity Group discover that the Client has not complied with provisions 13 and/or 14 of these General Terms and Conditions.  

 

16. Nullity or Partial Applicability – Non renunciation

The potential inapplicability or nullity of one or several of the provisions of these General Terms and Conditions will not impact on the applicability or validity of the other provisions. In such a case, the parties agree to replace the invalid clause with a provision validly negotiated together which, insofar as possible, has the same economic impact as the inapplicable or null clause. 

The fact that Canadian Ingenuity Group does not demand of the Buyer to perform one of its obligations at a certain moment, does not affect in any way the right of Canadian Ingenuity Group to demand this performance at another moment. The fact that Canadian Ingenuity Group  renounces to invoke a breach of Buyer of whatever obligation, does not imply the renunciation by Canadian Ingenuity Group for any other breach of this same obligation, nor for any other obligation, nor for the concerned breached obligation.

   

17. Language 

The French version of these General Terms and Conditions will prevail over all translations which are always be provided for convenience only. 

 

18. Applicable Law – Arbitration 

The relationship between Canadian Ingenuity Group and the Client is governed by (1) these General Terms and Conditions and all other Contractual Documents, (2) by OHADA law and (3) subsidiary, by the legal provisions in effect in the country the Performance was provided in, with the express exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980.  

Any dispute arising in the business relationship between the parties will be settled by arbitration, by a single arbitrator appointed, sitting and ruling in accordance with the provisions of the OHADA Treaty and the OHADA Uniform Act on the Right to Arbitration. However, Canadian Ingenuity Group. reserves the right to refer the case to the judicial courts of the jurisdiction in which it has its head office or in which the Buyer is established or in which the Products are physically located.