Terms and Conditions of Sale
The following terms and conditions of sale shall apply to any sale of goods and services by Deep Trekker Inc. (“Vendor”). Purchaser shall be deemed to have full knowledge of the terms and conditions herein and shall be deemed to have made an unqualified acceptance of the terms and conditions on the earliest to occur of the following (a) Vendor’s receipt of any invoice or agreement signed by Purchaser or other communication confirming Purchaser’s acceptance hereof; (b) Purchaser’s payment of any amounts due under any invoice or agreement incorporating the terms and conditions; (c) Vendor’s delivery of the Products (as defined below); or (e) any other event constituting acceptance under applicable law..
- GOVERNING PROVISIONS. Vendor is offering to provide the goods and/or services described herein (the “Products”) to the purchaser so identified on the attached invoice (“Purchaser”), subject to the terms and conditions set forth herein. Purchaser may not modify, change, renounce or waive any term or condition hereof without Vendor’s express written consent. Vendor agrees to provide to Purchaser the Products and Purchaser accepts the Products only on the terms hereof. Purchaser may not amend, modify or replace the terms hereof with any conflicting, different or additional terms previously or hereafter received by Vendor, even if such terms recite that any action or inaction by Vendor constitutes agreement or consent by Vendor to such amendment, modification or replacement. If this document is deemed an acceptance of a prior offer by Purchaser, such acceptance is limited to the express terms contained herein. Vendor hereby objects to and rejects any additional, different or varying terms proposed by Purchaser, unless an authorized officer of Vendor expressly assents to such terms in writing. Such proposal of additional, different or varying terms by Purchaser shall not operate as a rejection of Vendor’s offer except to the extent such variances are in the terms of the description, quantity, price or place or date of delivery of the Products, and Vendor’s offer shall be deemed accepted without such additional, different or varying terms.
- Payment will be deemed to have been made when funds are received by Vendor. Late payments will be accrued after the notice period, until receipt by Vendor of full payment at the lesser of (a) one and one-half percent per month compounded monthly, or (b) the maximum rate permitted by law.
- CANCELLATION OR MODIFICATION. Purchaser may not cancel or modify its order except upon terms accepted by Vendor in writing, as cancellation requests are subject to Vendor receiving Vendor approval. In the event of any cancellation or modification, Purchaser shall compensate Vendor for all costs and damages resulting therefrom, including, but not limited to, out-of-pocket expenses and lost profits and the fees and charges imposed by Vendor’s suppliers.
- No Products may be returned to Vendor without its prior, written authorization and Products may be returned only on the terms or conditions specified in such authorization. Returned Products must be of current manufacture, unused, in resalable condition, and securely packed to reach Vendor without damage.
- Purchaser shall pay or reimburse Vendor for any tax (including sales, use, service, value added, goods and service, or harmonized taxes), assessments, duty, custom, inspection or testing fee or any other fee or charge imposed on, in connection with or measured by the transaction between Vendor and Purchaser in addition to the prices quoted or invoiced.
- Generally: Risk in all Products supplied hereunder shall pass to Purchaser when delivered to the carrier and thereafter, except as otherwise specifically provided herein, all risk of loss and/or damage to any Products ordered hereunder shall be borne by Purchaser and shall not relieve the Purchaser from any obligation hereunder. Title of any Products ordered hereunder shall not pass to the Purchaser until Vendor has received in full all sums due to it in respect of the Products and all other sums which are or which become due to Vendor from the Purchaser on any account. Until title on the goods has passed to the Purchaser, the Purchaser shall maintain the goods in satisfactory condition and keep them insured on Vendor’s behalf for their full price against all risks. Vendor expressly reserves the right to effect delivery of Products ordered in any number of separate shipments. Subject to Purchaser’s instructions as to carrier, delivery shall be effected using such modes of transport and such carriers as Vendor shall deem appropriate. During any period of shortage of any product, Vendor shall have the right to allocate its supply of such product among its customers, including Purchaser, pursuant to their respective orders and contracts in any manner Vendor deems appropriate.
- Export Permit. Vendor’s products, inclusive of technical data, materials, software and related services, are subject to the Export and Import Permits Act of Canada, Purchaser is obligated to comply with Vendor’s requests at time of acceptance of purchase order for information required to ensure timely completion and award of an export permit. Products will not be shipped if an export permit is not obtained.
- Delivery Dates: All delivery dates are approximate. Delivery dates given by Vendor are based on prompt receipt of all necessary information regarding the order. Vendor will use reasonable efforts to meet such delivery dates, but does not guarantee to meet such dates. Failure by Vendor to meet any delivery date does not constitute a cause for cancellation and/or for damages of any kind. Time for delivery shall not be of the essence.
- Delivery Delays: Any delay in delivery due to causes beyond Vendor’s reasonable control, or due to any priorities or allocations necessitated by governmental orders or regulations, or due to any causes specified in the following sentence, shall extend the term of delivery by a period equal to the length of such delay.
- Claims: Claims for shortages, defects, non-conformities or other errors must be made in writing to Vendor within five (5) days after Vendor’s delivery. Failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Purchaser. Purchaser shall, promptly upon delivery, open, inspect and test all Products and report any discrepancy in writing to Vendor.
- SOFTWARE LICENSE. If a Product includes any Vendor-provided software, including but not limited to program code together with applicable technical documentation made available by Vendor from time to time (collectively “Software”), Purchaser acknowledges that the Software may be subject to additional terms and conditions as set forth in executable or electronic license agreements (“Other Agreements”). The Other Agreements, if any, shall control and govern all such licensed Software use to the extent necessary to resolve any conflict herewith. Subject to the terms of the Other Agreements, all rights not expressly granted herein are reserved, and all other uses of the Software are subject hereto as well as to the payment of any applicable Software license fees, including fees for specific Software functionalities, as identified by Vendor in writing.
- PROPRIETARY INFORMATION. All information disclosed in written, graphic, model, or oral form including, but not limited to, drawings, prints, publications, specifications, processes, manufacturing techniques, oral explanations, schedules, financial reports, or mechanical, electrical or software attributes obtained by Purchaser from Vendor prior to and during the performance of the order which is marked “Proprietary” by Vendor shall be kept confidential by Purchaser and shall remain the property of Vendor, and shall be returned at Vendor’s request. Such information shall be used in performance of this order and shall not be used for other purposes unless agreed to in writing by Vendor. Such information shall not be reproduced, published, disseminated, or disclosed to any third party by Purchaser without written consent of Vendor. Nothing contained herein shall be construed as granting an implied license or a license by Vendor or otherwise for any of Vendor’s intellectual property.
- RESTRICTIONS ON USE. Purchaser agrees that it shall not directly or indirectly: (i) modify, enhance, adapt, translate, make improvements to, create derivative works based upon, disassemble, decompile, reverse engineer, reduce to any human or machine readable form, or circumvent any technological measure that controls access to or permits derivation of the source code of, the Software or any part thereof; (ii) reverse engineer the Products, any part thereof, or any composition made using the Products; (iii) rent, lease, sell, transfer, assign, or sublicense the rights granted hereunder, except in connection with the rental, lease, sale or transfer of the entire Product; (iv) copy any part of the Software except for one (1) complete copy thereof for archival and/or back-up purposes, or as otherwise expressly authorized by Vendor in writing; (v) change, distort, or delete any patent, copyright or other proprietary notices which appear in writing on or in a Product (or in any copies of Software); (vi) operate or make use of the Products in any way that violates of applicable laws and regulations; and/or (vii) take or permit any other action which could impair Vendor’s rights, or damage the image or reputation of quality inherent in the Products, Vendor’s business, reputation, intellectual property or other valuable assets or rights.
- For any Purchaser problems with Products, the Vendor Support Team in its sole discretion shall determine and diagnose the issues prior to taking any other course of action. Purchaser shall communicate with Vendor Support via email at [email protected]
- VENDOR’S TRADEMARKS. Certain trademarks, trade names, service marks and logos used on or in association with the Products are registered and unregistered trademarks, trade names and service marks of Vendor and its affiliates. Neither Purchaser nor anyone else is granted by implication, estoppel, or otherwise, any license or right to use any trademarks, trade names, service marks or logos without the written permission of Vendor.
- LIMITED WARRANTIES. The Products limited warranty can be found within the applicable Product manual. There is NO WARRANTY in cases of damage in transit, acts of God, acts of war, or other such occurrence beyond either parties control, negligence, abuse, abnormal usage, misuse, alteration or modification so as to adversely affect the Product’s operation, performance or durability, accidents, damage due to an impact with another object, partial cuts of or severed tether, normal wear and tear, damage due to chemical attack, environmental, or natural elements, a Product being serviced by an unauthorized repair center, failure to follow Vendor’s instructions or improper installation, storage, maintenance or reassembly. Purchaser must make claims for defects in writing within five (5) days after discovery of such defects. Purchaser’s failure to make such claim within the warranty period and within five (5) days after discovering a defect shall constitute Purchaser’s irrevocable acceptance of the Products and Purchaser’s acknowledgement that the Products fully comply with the terms and conditions hereof. Vendor shall repair or replace, at its expense, the factory installed parts and components of any covered Products, including equipment, hardware and software, proved to Vendor’s satisfaction to be defective within either (a) the one (1) year warranty period from the date of delivery to the Purchaser if the Product is delivered within twenty four (24) months from the date of manufacture, or (b) the period ending thirty six (36) months after the date of manufacture where the Product is delivered more than twenty four (24) months from the date of manufacture. Such warranty satisfaction shall be available to the Purchaser only if: (i) Vendor or the Purchaser’s factory authorized dealer is notified in writing within five (5) days after discovery of an alleged defect; and (ii) the defect has not been caused by Purchaser’s misuse, neglect or alteration or by physical environment. A purchase receipt or other proof of date of original purchase is required before warranty or service is performed. VENDOR’S SOLE OBLIGATION AND PURCHASER’S EXCLUSIVE REMEDY HEREUNDER SHALL BE LIMITED TO REPAIR OR REPLACEMENT OF DEFECTIVE PRODUCTS DETERMINED BY VENDOR TO BE COVERED BY THIS LIMITED WARRANTY. Notice of any warranty claim or request for warranty service should be sent to Vendor at the following address: Deep Trekker Inc., 830 Trillium Drive Kitchener, ON, N2R 1K4, Attention:Jeff Lotz. Any assistance Vendor provides to or procures for Purchaser outside the terms, limitations or exclusions of this warranty will not constitute a waiver of the terms, limitations or exclusions of this limited warranty, nor will such assistance extend or revive the warranty. Vendor will not reimburse Purchaser for any expenses incurred by Purchaser in repairing, correcting or replacing any defective Products, except for those incurred with Vendor’s prior written permission. This warranty gives Purchaser specific legal rights, and Purchaser may also have other rights which vary from region to region.
- LIMITATIONS OF LIABILITY. OTHER THAN AS SET OUT IN SECTION 13, VENDOR SHALL NOT BE LIABLE TO PURCHASER, OR TO ANYONE CLAIMING UNDER PURCHASER, FOR ANY OBLIGATIONS OR LIABILITIES, INCLUDING, BUT NOT LIMITED TO, OBLIGATIONS OR LIABILITIES ARISING OUT OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORT OR ANY THEORY OF STRICT LIABILITY, WITH RESPECT TO THE SALE, INSTALLATION, USE, SERVICE OR FAILURE OF ANY PRODUCTS, INCLUDING EQUIPMENT, HARDWARE AND SOFTWARE, OR ANY DEFECT THEREIN, OR FROM ANY OTHER CAUSE. IN NO EVENT SHALL VENDOR BE LIABLE FOR LOST PROFITS OR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR OTHER DAMAGES. VENDOR‘S AGGREGATE LIABILITY UNDER THIS CONTRACT (INCLUDING BREAK OF CONTRACT ACTIONS, OR ACTION ARISING IN TORT) SHALL BE LIMITED TO THE MONIES PAID TO VENDOR HEREUNDER. Note: SOME STATES OR PROVINCES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. Purchaser agrees that Vendor has no post-sale duty to warn Purchaser or any other party about any matter or, if such duty exists, Vendor satisfies that duty by providing any required warnings only to Purchaser. Purchaser assumes all post-sale duty to warn its customers and indemnifies Vendor against any damages in connection with such duty or failure to warn.
- PURCHASER’S OBLIGATIONS. Prior to using or permitting use of the Products, including equipment, hardware and software, Purchaser shall determine the suitability of the Products, including equipment, hardware and software, for the intended use and under Purchaser’s operating conditions, and Purchaser shall assume all risk and liability whatsoever in connection therewith.
- DISCLAIMER OR LIMITATION OF OTHER WARRANTIES. VENDOR AND PURCHASER AGREE THAT THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER EXPRESS, IMPLIED OR COLLATERAL WARRANTIES. VENDOR HEREBY DISCLAIMS ALL OTHER EXPRESS, IMPLIED OR COLLATERAL WARRANTIES. FOR COMMERCIAL PRODUCTS, ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, ARE DISCLAIMED. FOR CONSUMER PRODUCTS, ALL WARRANTIES IMPLIED BY LAW, INCLUDING THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY LIMITED TO THE PERIOD OF THE WARRANTY STATED ABOVE FOR THE RELEVANT PRODUCT. NOTE: SOME STATES OR PROVINCES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. Any oral or written description of the Products is for the sole purpose of identifying the Products and shall not be construed as an express warranty.
- Purchaser shall not, in connection with this contract or its performance hereunder, directly or indirectly, offer, pay, promise to pay, or authorize the payment of, or give, promise to give, or authorize the giving of, any money or thing of value to any governmental official or to any person, director, employee, agent, representative or any other person acting on behalf or in the interest of a commercial entity or government authority where circumstances would seem to suggest that all or a portion of such money or thing of value will be offered, given or promised, directly or indirectly, for the purpose of influencing any act or decision of such person to use his influence in order to obtain for Purchaser and/or Vendor a contract or influence a business transaction, whereby Purchaser and/or Vendor is given dishonest and unfair preferential treatment with regard to a procurement of goods or services as reflected under this contract. Purchaser’s directors, shareholders, officers, employees and consultants will respect the obligations contained herein, and comply with all applicable laws in its jurisdiction in carrying out its obligations under this contract. Purchaser acknowledges that no employee of Vendor (including any of its divisions or affiliated companies) has any authority to give any direction, written or oral, in connection with the making of any payment or commitment by Purchaser to any third party in contravention of the foregoing. If Purchaser violates the provisions of this section, Vendor shall be entitled to terminate this contract immediately without compensation or indemnification whatsoever.
- COMPLIANCE WITH EXPORT LAWS. Purchaser is responsible to ensure all local export laws are fully complied with. Purchaser shall indemnify and hold Vendor harmless for all claims, demands, damages, costs, fines, penalties, attorney’s fees, and other expenses arising from Purchaser’s failure to comply with this clause. These items are controlled by both the Canadian and/or the U.S. Government and authorized for export only to the country of ultimate destination for use by the ultimate consignee or end-user(s) herein identified. They may not be resold, transferred, or otherwise disposed of, to any other country or to any person other than the authorized ultimate consignee or end-user(s), either in their original form or after being incorporated into other items, without first obtaining approval from the Canadian and/or U.S. government or as otherwise authorized by Canadian and or U.S. law and regulations.
- INDEMNIFICATION OF VENDOR. Purchaser shall indemnify, and hold harmless Vendor and its affiliates, and their employees, officers, and directors, against any claim, suit or proceeding arising out of or relating to: (a) any production, sale or use of prototypes, outputs, or other results of the Products; (b) any method of using a Product other than methods inherent in, and necessary for, the operation of, the Product as supplied; (c) the use of any Product with any consumables, supplies, equipment, device or software not manufactured or supplied and certified by Vendor; (d) the use of any Product which has been modified by Purchaser or any third party without obtaining Vendor’s prior written authorization; (e) the result of Vendor’s compliance with any of Purchaser’s requested designs or specifications; and/or (f) Purchaser’s continued use of any Product after receipt of notice of infringement, provided that Purchaser shall not settle any claim or enter into any agreement that affects Vendor’s rights or interests without Vendor’s prior written consent; and that if Purchaser does not diligently defend against such claim, suit, or proceeding, Vendor shall be entitled to obtain its own legal counsel to direct the defense thereof at Purchaser’s sole cost and expense.
- Neither party may assign these Terms and Conditions or any rights or obligations hereunder without the prior written consent of the other party; provided, however, Vendor may assign, without Purchaser’s consent, these Terms and Conditions or its interest herein to any affiliate or to any entity succeeding to Vendor’s business. Subject to the foregoing, these Terms and Conditions shall bind and enure to the benefit of Vendor and Purchaser and their successors and permitted assigns.
- GOVERNING LAW. The laws of the Province of Ontario and the federal laws of Canada applicable therein shall govern the rights and obligations of Vendor and Purchaser hereunder and any disputes thereon. Neither these Terms and Conditions nor sales hereunder shall be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods. Any cause of action, claim, suit or demand by Purchaser allegedly arising from or related to the terms hereof or the relationship of the parties that after good faith negotiations cannot be resolved to both parties’ satisfaction shall be brought in a court situated in the Province of Ontario. Both parties hereby irrevocably admit themselves to and consent to the exclusive jurisdiction of said court.
- Vendor reserves the right to correct clerical or similar errors relating to price or any other term shown in any applicable invoice or agreement. The failure of Vendor to insist, in any one or more instances, upon performance of any of the terms, covenants and conditions hereof shall not be construed as a waiver or relinquishment of any rights granted hereunder or the future performance of any such term, covenant or condition. The invalidity of any provision or clause hereof shall not affect the validity of any other provision or clause hereof.
- ENTIRE AGREEMENT. These terms and conditions constitutes the entire agreement of the parties with respect to the subject matter hereof. Any negotiations or understandings between Vendor and Purchaser which are not contained in this agreement (including without limitation, correspondence or statements that conflict with, differ from or modify this agreement) shall have no force of effect, unless in writing and signed by authorized officers of Vendor and Purchaser.