General terms and conditions. Supply by Maple Armor Fire Alarm System Co. Ltd., doing business under the name of Maple Armor Fire Alarm System Co. Ltd. (the “Seller”), of any “Product” (including the “Goods”, the “Software” and the “Services”) is expressly conditional upon the Customer’s acceptance of the following Terms and Conditions which shall have exclusive priority over any other terms and conditions proposed by the Customer with respect to the same or similar subject matter.
Terms of sale and payment. Subject to any contrary price proposal, the conditions are net 30 days. The Customer must provide the e-mail address of his accounts payable in order to receive invoices and notifications on this subject. The Customer must pay all invoices by cheque or electronic payment, which includes wire transfers, electronic funds transfers, credit or debit cards. Overdue amounts shall bear interest at the rate of 2% per month. If an overdue account is sent for collection, all collection and attorney’s fees shall be borne by the Client. All payments are made in Canadian dollars unless otherwise specified in Seller’s proposal.
Price. The Products are invoiced according to the prices offered, otherwise they are invoiced at current prices in effect on the date of delivery of the Goods or the Software or the provision of the Services. Prices exclude any current or future federal, state, provincial, state or local government taxes, duties and tariffs, whether current or future, that apply to the sale, transportation or use of the Products purchased and all such taxes, duties and tariffs are paid by Customer. All prices are FOB shipping point. Tender prices for imported items are based on the Canadian currency exchange rate in effect on the date of this contract. Should the currency exchange rate fluctuate prior to delivery of the items in question, Maple Armor Fire Alarm System Co. Lté will be entitled to charge a surplus to cover any additional costs incurred.
Delivery, title and risk of loss. All shipments are FOB point of shipment. Title and risk of loss pass to the Customer upon acceptance for shipment by the carrier. The Seller shall ship the Products by the carrier of its choice. The Seller reserves the right to make partial shipments unless otherwise expressly indicated on the Customer’s purchase order. Transport costs are prepaid by the Seller and invoiced to the Customer. The Customer must submit any claim for damaged items to the carrier as soon as possible. The Seller shall determine the shipping point. The Products may be shipped from several locations.
Excusable delays. The Seller shall use commercially reasonable efforts to deliver all Products ordered by the Customer as soon as possible. The Seller shall not be liable for and shall not be in breach of its obligations under the Agreement to the extent that the performance of such obligations is delayed or prevented, directly or indirectly, by causes beyond its control, including, without limitation, force majeure, fire, terrorist activities, war (whether declared or not), epidemic, shortage of materials, insurrection, an act (or omission) of the Customer or the Customer’s suppliers or representatives, including (without limitation) the Customer’s failure to provide all necessary documentation promptly, an act (or omission) of a government authority, a strike, a labour dispute, unavailability of transport or non-performance by a subcontractor. The date of delivery or performance shall be extended by a period equal to the time lost as a result of the delay and postponed for such further period as is reasonably necessary to counteract the effects of the delay. If Seller’s delay is caused by acts (or omissions) of Customer, or by the prior work of Customer’s other contractors or suppliers, Seller shall be entitled to an equitable adjustment in price and performance.
Missing Materials. The Customer must notify the Seller’s customer service department of any missing items within 7 business days. Claims for shortages are no longer admissible and are deemed abandoned after 7 working days of receipt. At the Seller’s option, shipment shall be completed, or credit shall be given to the Customer within 30 days of receipt of the claim.
Software License. In this document, the word “Software” means: (a) object code readable by machine; or (b) a computer program or compilation of data affixed to a tangible medium of expression or any storage medium from which the program can be perceived, reproduced or otherwise communicated, using only a machine or device. In addition, the word “Software” includes, without limitation, any proprietary software provided for the ordinary operation of the Products, any optional software to enhance the operation of the Products, and any upgrades or updates to items provided by Seller in fulfillment of a particular written commitment or otherwise. Seller shall have no obligation to provide support, upgrades or updates to the Software other than pursuant to a separate written obligation to do so. Customer is granted a limited license to use any Software and related user documentation delivered by Seller, whether as part of a Product or provided separately. Customer is not granted a license to use any other Software or documentation. This license permits Customer to do the following: a) use the Software and user documentation only on the Products on which they are installed at the time of delivery or, if the Software is supplied separately, in connection with the Products supplied by the Seller. Customer must obtain an additional license from Seller (which Seller may or may not grant in its sole discretion) before using the Software in connection with any other equipment or for any other purpose; and (b) make one copy of the Software in machine-readable form solely for backup purposes, provided that Customer reproduces on such copy the copyright notice and any other proprietary legend that was on the original copy. This license does not confer any other rights on Customer. Customer may not distribute copies of the Software or documentation to others or transfer the Software electronically from one computer to another over a network. The Software contains Seller’s trade secrets. To protect these trade secrets, Customer may not modify, decompile, reverse engineer, disassemble or otherwise reduce the Software to a humanly perceivable form. Customer may not adapt, translate, rent, lease, lend, resell for profit or for any other purpose or distribute, network or make derivative works of the Software, in whole or in part. All Software and user documentation is protected by Canadian copyright and intellectual property laws and applicable international treaties. No license under these rights is transferred to the Customer, except as expressly provided in these Terms and Conditions. Any Software provided by the Seller shall remain the property of the Seller. If Customer receives Software that makes another Software redundant, Customer must return the redundant Software to Seller. If the Seller provides Software from a third party, only the license of that third-party supplier shall apply, and the Customer agrees to be bound by its terms and conditions.
Patents. Seller warrants that the Products will be delivered free of any legitimate third-party claim for infringement of a Canadian patent. Provided that Customer shall be notified in writing as soon as possible and shall be provided with the necessary authorization, information and assistance, and provided that Customer shall not take any position adverse to Seller in connection with such claim, Seller shall undertake, at its own expense, to defend or settle any action or proceeding against the Customer based on alleged patent infringement that would constitute a breach of the warranty set forth in this section, and to pay any damages and costs awarded against the Customer in respect thereof due to such breach. In the event that such a lawsuit is filed that any Product, in whole or in part, is found to be infringing, and the use of the Product, in whole or in part, for its intended purpose is prohibited, the Seller, at its expense and at its discretion, shall provide the Customer with the right to continue to use the Product, in whole or in part, replace it with a Product, in whole or in part, that does not constitute an infringement, modify it so that it no longer constitutes an infringement, or remove the Product and refund the purchase price (less reasonable depreciation during the period of use) and transportation costs paid separately by the Customer, if any. Seller assumes no liability for patent infringement by Products, in whole or in part, other than as described in the foregoing provisions. The foregoing shall not apply to Products, in whole or in part, manufactured or supplied according to Customer’s design or to the use of a Product supplied hereunder with any other Product in a combination not supplied by Seller in this transaction. With respect to any Product or part of a Product, or use in such combination, Seller assumes no liability for patent infringement, and Customer shall indemnify Seller against any resulting infringement claim. The intellectual property resulting from the development of customized Products (including, without limitation, the Goods, Software and technical documentation) for Customer is the exclusive property of Seller and may not be reproduced, redistributed or resold by Customer without prior written permission, or without the exclusive rights thereto having been expressly transferred from Seller to Customer.
Proprietary information. Customer acknowledges that Seller owns and claims various proprietary rights in and to the hardware, firmware, Software and the integration of ancillary elements, knowledge and design that constitute the Products and Customer is prohibited from doing anything, directly or indirectly, that results in the infringement of such rights.
Design changes. The Seller reserves the right to modify the design of its Products without notifying the Customer or to make the same modification to units that have already been purchased.
Compliance with laws. Customer shall comply with all applicable laws, insurance, codes and licensing requirements and export controls of Canada and other applicable jurisdictions in connection with the use and resale of the Products, including the Customer’s responsibility to pay all applicable taxes and duties. Similarly, Customer is responsible for the removal, handling and disposal of any hazardous materials, wastes or substances used or produced at Customer’s site.
Applicable laws. The internal substantive law of the Province of Quebec governs this transaction.
GUARANTEE. SELLER WARRANTS TO CUSTOMER THAT (I) THE GOODS WILL BE SHIPPED FREE FROM DEFECTS IN MATERIAL, MANUFACTURING AND TITLE AND (II) THE SERVICES WILL BE PERFORMED WITH SKILL AND DILIGENCE IN ACCORDANCE WITH THE SPECIFICATIONS JOINTLY DETERMINED. To the extent that a Product includes Software or firmware, whether included in Goods or Services or supplied separately, Seller warrants that the Software or firmware will conform in all material respects, at the time of delivery by Seller and for a period of 90 days thereafter, to Seller’s documentation relating to such Software or firmware. UNLESS SELLER EXPRESSLY PROVIDES OTHERWISE IN WRITING, ITEMS NOT MANUFACTURED BY SELLER (INCLUDING RELATED MATERIALS AND CONSUMABLES USED IN CONNECTION WITH SERVICES AND SOFTWARE PROVIDED BY THIRD PARTIES) WILL BE COVERED ONLY BY THE WARRANTY OF THE ORIGINAL MANUFACTURER OR SOFTWARE SUPPLIER. IN ADDITION, USED GOODS OTHER THAN REFURBISHED PARTS ARE SOLD “AS IS”. Except as otherwise provided in the Agreement, the warranty period for (i) the Goods is one year from the date of first use or 18 months from the date of delivery, or from the date of notification that the Goods are ready for shipment if delivery cannot take place for reasons not attributable to Seller, whichever is earlier, and (ii) the Software is 90 days from delivery and (iii) the Services is 90 days from completion. If the Products do not meet the above warranties, Customer shall promptly notify Seller in writing within the warranty period. Seller shall then (i) at Seller’s option, repair or replace the defective Goods, (ii) make the necessary modifications to the defective Software, or (iii) recommence the defective Services. Where a deficiency cannot be corrected by Seller’s reasonable efforts, the parties shall negotiate an equitable price adjustment. Seller’s repairs, replacements, modifications or reperformance hereunder shall not extend beyond the applicable warranty period. The parties shall jointly agree on the specifications for testing to determine the presence of a defect. Customer shall bear the costs of access (including removal and replacement of systems, structures or other parts of Customer’s facilities), de-installation, decontamination, re-installation and transportation of the Goods to Seller and return of the Goods to Customer. These warranties and remedies are conditional upon (a) proper storage, installation, operation and maintenance of the Goods and compliance with proper operating instructions provided by Seller or its suppliers or subcontractors, (b) proper maintenance of operating and maintenance records during the warranty period by Customer and access to such records provided by Customer to Seller, and (c) modification or repair of the Goods only as authorized by Seller. The Seller does not warrant the Products, or the parts repaired or replaced against normal wear and tear or damage caused by misuse, accident or use contrary to the Seller’s recommendations. Modifications or repairs to the Products not authorized by Seller will void the warranty. This section provides the exclusive remedies for all claims based on the failure or defect of the Products, whether the failure or defect occurs before or during the applicable warranty period and whether a claim, regardless of its nature, is based on contract, warranty, indemnity, tort, extra-contractual liability (including negligence), strict liability or otherwise. The warranties set forth in this section are exclusive and in lieu of all other warranties and conditions, whether written, oral, implied or statutory. NO IMPLIED LEGAL CONDITIONS OR WARRANTIES OF MERCHANTABILITY AND SUITABILITY FOR A PARTICULAR PURPOSE IS APPLICABLE.
Limitation of liability. Seller’s total liability for all claims arising out of OR RELATED TO THE SUPPLY OF PRODUCTS OR VIOLATION OF THE CONTRACT SHALL NOT EXCEED THE PRICE PAID FOR THE PRODUCTS OR, IF THE PRODUCTS INCLUDE SERVICES, THE PRICE PAID DURING THE YEAR IN WHICH THE LIABILITY ARISES. Seller shall not be liable for damages such as loss of profits or revenues, lost profits, loss of Product, loss of use of Goods or related equipment, business interruption, cost of capital, cost of replacement Products, downtime costs, increases in operating costs, claims by Customer’s customers for such damages, or for special, indirect, incidental or consequential damages or exemplary or punitive damages. If the Customer provides the Products to a third party, the Customer must ask the third party to consent to be bound by this section. If the Customer does not obtain such consent for the benefit of the Seller, the Customer shall indemnify, defend and hold harmless the Seller from and against any claims made by the third party, in addition to the limitations and exclusions of this Article. The Seller shall not be liable for any advice or assistance not provided for under the terms of the Agreement. For the purposes of this Section, the word “Seller” means Seller, its affiliates, related entities, insurers, subcontractors and suppliers at any tier, and their representatives and employees, individually or collectively.
The foregoing entities and persons (other than Seller) shall be deemed third party beneficiaries of the provisions of this Section and shall be entitled to invoke the provisions of this Section as a defence or to enforce them directly. If for any reason applicable law does not permit such enforcement or invocation, Seller may enforce these provisions on behalf of such entities or persons. Seller hereby undertakes to act as trustee for such entities or persons. The limitations and exclusions in this section apply regardless of whether a claim is based on contract, warranty, indemnity, tort / extra-contractual liability (including negligence), strict liability or otherwise.
Credit approval and prevention of money laundering. Seller’s obligation to supply the Products is subject to credit approval which is at Seller’s sole discretion. Seller has programs to prevent participation in money laundering. In order to fully comply with all applicable anti-money laundering, currency reporting and record keeping requirements and to take active steps to prevent, detect and report to the appropriate authorities any apparent violations, Seller may request information from the Customer to verify its legitimacy, reliability and creditworthiness.
International trade. The Seller conditions this sale on knowledge of the environment of the transaction (including, but not limited to, the Customer, the end use, the end user as well as possible intermediaries). The Seller reserves the right to refuse any order placed in violation of laws and regulations or ethical rules applicable to the Seller, including but not limited to international trade rules designed to prohibit trade in goods and services with certain countries, natural or legal persons or entities subject to international economic, financial or other sanctions.