These terms and conditions (the “Terms”) govern the sale to a third party (“Buyer”) of products (“Products”) and the provision to Buyer of services (“Services”) by Hypertec Group companies, including, without limitation, Hypertec Systems, Hypertec USA Inc., Hypertechnologie Ciara Inc. and Ciara Technologies USA and their respective divisions, subsidiaries and affiliates (collectively, “Vendor”). These Terms take precedence over Buyer’s supplemental or conflicting terms and conditions to which notice of objection is hereby given. Neither Vendor’s commencement of performance or delivery shall be deemed or constituted an acceptance of Buyer’s supplemental or conflicting terms and conditions. Unless otherwise agreed to by an authorised representative of Vendor in writing, these Terms apply to direct commercial purchasers and commercial end-users that purchase through a reseller. By placing an order, Buyer accepts and is bound to all terms and conditions contained in these Terms. These Terms, together with any related license agreement, service agreement and other terms and conditions between Vendor and Buyer, shall be referred to herein as the “Agreement”.
1. Orders. All orders placed by Buyer are subject to acceptance by Vendor. Other than as specified in these Terms, orders may not be cancelled or rescheduled without Vendor’s written consent. All orders must include delivery dates, quantities, approved vendors and complete description of the Products and Services being purchased. Vendor may, in its sole discretion, refuse any order or, in the event of shortage, allocate Products among its customers. Vendor may designate certain Products as non-cancellable, non-returnable (“NCNR”) or customer specific (“CS”) Products and the sale of such Products shall be subject to the special terms and conditions contained in Vendor’s Special Product Agreement, which shall prevail and supersede any inconsistent terms and conditions contained in these Terms or elsewhere.
2. Prices. (a) The prices of Products and Services are those specified on the front of Vendor’s invoice. Pricing for undelivered Products and Services may be increased by Vendor in the event of any increase in Vendor’s cost or change in market conditions or of any other causes beyond Vendor’s reasonable control. Price quotations, unless otherwise stated, shall automatically expire thirty (30) calendar days from the date issued and may be cancelled or amended by Vendor within that period upon notice to Buyer.
(b) Unless otherwise agreed to in writing by Vendor, all prices quoted are exclusive of transportation and insurance costs, duties, and all taxes including, but not limited to, federal, state, provincial and local sales, excise, value added and goods and services taxes and any other taxes. Buyer agrees to pay these taxes unless Buyer has provided Vendor with an exemption resale certificate in the appropriate form for the jurisdiction of Buyer’s place of business and any jurisdiction to which Products are to be directly shipped hereunder, or unless the sale is otherwise exempt from these taxes. Buyer agrees to indemnify and hold Vendor harmless for any liability for tax in connection with the sale, as well as the collection or withholding thereof, including penalties and interest thereon. When applicable, transportation and taxes shall appear as separate items on Vendor’s invoice.
3. Payment. (a) Other than where up-front payment in full was required prior to acceptance by Vendor of an order, invoices will be due and payable within the time period noted on the invoice, or if not noted, then within net thirty (30) days, measured from the date of the invoice, subject to continuing credit approval by Vendor, which approval may be revoked without further notice from Vendor. Vendor may invoice each shipment separately and each invoice shall be considered separately for the purposes of these payment terms. Buyer agrees to pay each invoice pursuant to its terms without the benefit of setoff or deduction.
(b) All late payments shall be charged interest computed on a daily basis from the due date until paid in full. A late charge of two percent (2%) per month (24% per annum) will be imposed on all past due accounts. Buyer shall be liable for costs of collection, including, without limitation, reasonable legal and attorneys’ fees and court costs, in any action to collect past due amounts.
(c) All freight, insurance and other expenses associated with shipping Products to Buyer are Buyer’s responsibility and shall be payable by Buyer in addition to the purchase price of Products. Vendor shall have the right to purchase shipping insurance on Buyer’s behalf and charge Buyer for such insurance, unless otherwise agreed to in writing by the parties, in accordance with Section 4 hereof.
(d) Vendor reserves the right to establish and/or change credit and payment terms extended to Buyer when, in Vendor’s sole opinion, Buyer’s financial condition or previous payment record warrants such action. Further, on delinquent accounts, Vendor shall not be obligated to continue performance under any agreement with Buyer.
(e) If Vendor believes in good faith that Buyer’s ability to make payments may be impaired or if Buyer shall fail to pay any invoice when due, Vendor may suspend delivery or performance of any order or any remaining balance thereof until such payment is made or cancel any order or any remaining balance thereof, and Buyer shall remain liable to pay for any Products already shipped and Services already performed and for all NCNR and CS Products ordered by Buyer.
(f) To secure Buyer’s payment obligations under the Agreement, Buyer hereby grants to Vendor, and Vendor hereby retains, a purchase money security interest in Products delivered to Vendor and in their accessories, replacements, accessions and in the proceeds therefor, including, without limitation, accounts receivable (the “Collateral”), and for the purposes of Quebec law, Buyer also grants to Vendor a hypothec on the Collateral in the principal amount of the purchase price of the Products payable under the Agreement, plus an amount equal to 20% of such amount, the whole bearing interest at a rate of 25% per annum. In case of default by Buyer in payment obligations hereunder, Vendor may declare all amounts owing hereunder immediately due and payable and may exercise all rights and remedies available to a secured party/holder of a security/hypothec under applicable statute or otherwise, without prejudice to any other remedy of Vendor hereunder, at law or in equity. Buyer agrees, from time to time, to take any act and execute and deliver any document (including, without limitation, financing statements) reasonably requested by Vendor to transfer, create, perfect, preserve, protect and enforce any security interest under this provision and authorizes Vendor to file any documents and take all other steps required to perfect and render the security interest/hypothec opposable to third parties. Until all amounts are paid hereunder, Buyer will keep Products free from any other encumbrance.
(g) Any payment received from Buyer may be applied by Vendor against any obligation owing from Buyer to Vendor, regardless of any statement appearing on or referring to such payment, without discharging Buyer’s liability for any additional amounts owing from Buyer to Vendor, and the acceptance by Vendor of such payment shall not constitute a waiver of Vendor’s right to pursue the collection of any remaining balance.
(h) Vendor is not responsible for pricing, typographical or other errors in any offer, and reserves the right to cancel orders arising from such errors. Buyer agrees that all invoices shall be deemed accurate unless Buyer advises Vendor in writing of a bona fide, material error within fourteen (14) days of the date of such invoice. In the event that Buyer advises Vendor of a material error, (i) payment of any amounts corrected or modified by Vendor in writing shall be due within fourteen (14) days of such correction, and (ii) all other amounts shall be paid by Buyer by the invoice due date. In the event Buyer withholds payment of any invoiced amounts upon an assertion by Buyer that such amounts are erroneous, and Vendor subsequently concludes that such invoiced amounts are accurate, Buyer shall pay interest on such amounts as described above from the due date for such amounts until Vendor’s receipt of those amounts. In no case shall Buyer be entitled to offset, defer or deduct any invoiced amounts that Vendor determines are not erroneous following the notification process set forth above.
4. Delivery and Title. All deliveries will be made EXW (Ex Works as defined in Incoterms 2010) Vendor’s facility or FOB place of origin. Subject to Vendor’s right of stoppage in transit, delivery of Products to the carrier shall constitute delivery to Buyer and title and risk of loss shall thereupon pass to Buyer. Selection of the carrier and delivery route shall be made by Vendor unless specified by Buyer. Buyer acknowledges that delivery dates provided by Vendor are estimates only and Vendor shall not be liable for delays in delivery or for failure to perform due to causes beyond the reasonable control of Vendor nor shall the carrier be deemed an agent of Vendor. In the case of delay caused by such event, the date of delivery shall be extended for a period equal to the time lost as a consequence of the delay in delivery without subjecting Vendor to any liability or penalty. If Products perished while in the custody of the carrier, Vendor shall be deemed to have performed its obligations in full. Delivery of a quantity which varies from the quantity specified shall not relieve Buyer of the obligation to accept delivery and pay for Products delivered. Delay in delivery of one installment shall not entitle Buyer to cancel other instalments.
5. Acceptance/Returns. Shipment of Products will be deemed to have been accepted by Buyer upon delivery of the said shipment to Buyer unless rejected upon receipt. Buyer shall perform whatever inspection or tests Buyer deems necessary as promptly as possible but in no event later than five (5) days after delivery, after which time Buyer will be deemed to have irrevocably accepted Products. Any discrepancy in shipment quantity must be reported within five (5) working days of receipt of Products. In the event of an over shipment, Buyer shall have the option to return Products to Vendor at Vendor’s expense or, alternatively, Buyer may elect to retain Products (subject to adjustment of the invoice or the issuance of another invoice to account for such additional items). Products that are subject to returns shall be subject to compliance with Vendor’s Return Merchandise Authorization (“RMA”) policies and procedures and require an RMA number. A restocking charge equivalent to a minimum of 15% of the value of Products returned as specified in Vendor’s invoice to Buyer may apply. Returned Products must be in the original packaging. Products not eligible for return shall be returned to Buyer freight collect.
6. Limited Warranty and Limitation of Liability. (a) Vendor warrants as follows regarding Services performed or Products sold by Vendor:
(i) all Vendor CIARA-branded Products shall be free from defects in material and workmanship under normal use and service in accordance with their Specifications for a period of ninety (90) days after shipment by Vendor, with “Specifications” meaning Vendor’s published specifications for Products, which Buyer acknowledges having received, as revised from time to time; provided, however, that THIS WARRANTY EXPRESSLY EXCLUDES ALL SOFTWARE APPLICATIONS OR PROGRAMS;
(ii) as regards all Vendor non-CIARA-branded Products, Vendor will transfer to Buyer all transferable warranties or indemnities, if any, that the original equipment manufacturer (“OEM”) or the third party vendor/service provider provides to Vendor. VENDOR SHALL HAVE NO LIABILITY TOWARDS BUYER BEYOND TRANSFERRING SUCH WARRANTIES OR INDEMNITIES, TO THE EXTENT THAT THEY ARE TRANSFERABLE. IT IS BUYER’S OBLIGATION TO REQUEST COPIES OF ANY APPLICABLE OEM OR THIRD PARTY VENDOR/SERVICE PROVIDER WARRANTIES AND BUYER SHALL BE DEEMED TO HAVE ACCEPTED SUCH WARRANTIES UPON THE ACCEPTANCE OF PRODUCTS AND/OR SERVICES; and
(iii) all Services performed by or on behalf of Vendor shall be performed in a diligent and commercially reasonable manner in accordance with the degree of care, skill, efficiency and diligence that a reasonably prudent person would employ in similar circumstances.
(b) Vendor’s exclusive obligations with respect to any Products or Services for claims under the limited warranty provided under Sections 6(a)(i) and 6(a)(iii) hereof shall be, at Vendor’s option, to repair or replace the Product, if it is determined to be defective, to re-perform the Service, or to issue credit to Buyer for the purchase price paid for the Product or Service. Replacement Products shall be warranted as set forth in Section 6(a) hereof. Any Products repaired or serviced by Vendor shall be warranted as provided in Section 6(a) hereof for the remainder of Vendor’s warranty period or the OEM or the third party vendor/service provider warranty period, as the case may be.
(c) No warranty shall apply to any Products or components that have been subjected to misuse, mishandling or improper testing or assembly, that have been repaired or altered other than by Vendor, that have been operated contrary to their Specifications or current instructions relating to their installation, maintenance or operation, that have been operated contrary to industry standards, that have been subjected to adverse external conditions such as, but not limited to, excessive heat or humidity, power failures, power surges or force majeure, or that have been used in conjunction with any item not furnished or manufactured by Vendor (other than as specifically instructed by Vendor).
(d) No warranty shall apply to accessories, supply items and consumables or structural parts (for example, frames and covers). Unless specified otherwise, batteries are considered a consumable item and are not warranted.
(e) Vendor gives no warranty whatsoever, and disclaims and shall have no liability, for any trademark, trade dress, trade secret, copyright, design or patent infringement, or the infringement of any other intellectual property right of any third party, which may occur as a result of the sale of Products to Buyer or the use of Products by Buyer, except to the extent otherwise expressly agreed to by Vendor in writing; provided, however, that Buyer may be entitled to seek remedy or recourse against the relevant OEM or third party vendor/service provider, subject to the limited warranty, if any, of the OEM or the third party vendor/service provider in this regard. Notwithstanding the foregoing, there shall be no remedy or recourse by Buyer whatsoever to the extent the infringement arises from or is otherwise based upon (i) compliance with the particular requirements of Buyer, (ii) modifications or alterations of the Products or components other than by Vendor, the OEM or the third party vendor/service provider, or (iii) the combination of the Products with other items not furnished or manufactured by Vendor or the OEM or the third party vendor/service provider.
(f) THE FOREGOING WARRANTIES ARE THE SOLE WARRANTIES GIVEN BY VENDOR IN CONNECTION WITH PRODUCTS AND SERVICES, AND VENDOR DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, LEGAL, STATUTORY OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND WARRANTIES AGAINST LATENT DEFECTS.
(g) BUYER SHALL NOT IN ANY EVENT BE ENTITLED TO, AND VENDOR SHALL NOT BE LIABLE FOR: INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE OR ANY LOSS OF REVENUE, INCOME, PROFIT OR SAVINGS; LOST OR CORRUPTED DATA OR SOFTWARE; LOSS OF USE OF A SYSTEM OR NETWORK; LOSS OF BUSINESS OPPORTUNITY; BUSINESS INTERRUPTION OR DOWNTIME; PRODUCTS OR THIRD-PARTY PRODUCTS NOT BEING AVAILABLE FOR USE; REMOVAL AND/OR REINSTALLATION COSTS; REPROCUREMENT COSTS; PROMOTIONAL OR MANUFACTURING EXPENSES; OVERHEAD; INJURY TO REPUTATION OR LOSS OF CUSTOMERS, IN EACH CASE EVEN IF VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BUYER’S RECOVERY FROM VENDOR FOR ANY AND ALL CLAIMS IN ANY 12-MONTH PERIOD SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY THE BUYER DURING THE PRIOR 12 MONTHS FOR PRODUCTS OR SERVICES GIVING RISE TO SUCH CLAIM IRRESPECTIVE OF THE NATURE OF THE CLAIM, WHETHER IN CONTRACT, CIVIL LIABILITY, TORT, DELICT, WARRANTY, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE. VENDOR SHALL NOT BE LIABLE FOR, AND BUYER SHALL INDEMNIFY, DEFEND AND HOLD VENDOR HARMLESS FROM, ANY CLAIMS BASED ON VENDOR’S COMPLIANCE WITH BUYER’S DESIGNS, SPECIFICATIONS OR INSTRUCTIONS, OR MODIFICATION OF ANY PRODUCTS BY PARTIES OTHER THAN VENDOR, OR USE IN COMBINATION WITH OTHER PRODUCTS. IF, FOR ANY REASON, THE FOREGOING LIMITATIONS ARE FOUND BY AN ARBITRATION PANEL OR COURT OF COMPETENT JURISDICTION TO BE INVALID OR INAPPLICABLE UNDER ANY APPLICABLE LAW, BUYER AGREES THAT VENDOR’S TOTAL LIABILITY FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION OF ANY KIND OR NATURE SHALL BE LIMITED TO ACTUAL DAMAGES WITHOUT REGARD TO ANY PUNITIVE OR EXEMPLARY DAMAGES PROVIDED BY ANY SUCH APPLICABLE LAW.
(h) Buyer acknowledges that this Agreement was entered into at arm’s length and that Buyer was not fraudulently induced to enter into this Agreement, in whole or any part, and Buyer explicitly disclaims and waives any claim with respect thereto.
7. Intellectual Property. If any Products include software or other intellectual property, such software or other intellectual property is provided by Vendor to Buyer subject to the terms and conditions set forth in the license agreement or other user agreement accompanying such software or other intellectual property. Nothing herein shall be construed to grant any rights or license to use any software or other intellectual property in any manner or for any purpose not expressly permitted by such license or user agreement.
8. Export Control. Buyer certifies that it will be the recipient of Products to be delivered by Vendor. Buyer acknowledges that Products are subject to the export and/or import control laws and regulations of various countries, including, without limitation, Canada’s Export Control List and Area Control List and the Export Administration Laws and Regulations of the United States. Buyer agrees to comply strictly with all applicable export and import control laws and assumes sole responsibility for obtaining any required licenses to import, export or re-export as may be required and acknowledges that it shall not directly or indirectly export or re-export any Products to any country to which such export or transmission is restricted or prohibited.
9. Use of Products and Services. Products and Services sold by Vendor are not fault-tolerant and not designed, intended or authorized for use in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, life-support machines, or any other application in which the failure of the Products or Services could lead directly to death, personal injury, or severe physical or property damage (collectively, “High-Risk Activities”). Vendor expressly disclaims any express or implied warranty of fitness for High-Risk Activities. If Buyer uses or sells the Products or Services for use in any such High-Risk Activities: (1) Buyer acknowledges that such use or sale is at Buyer’s sole risk; (2) Buyer agrees that Vendor and the component manufacturer and/or OEM are not liable, in whole or in part, for any claim or damage arising from such use; and (3) Buyer agrees to indemnify, defend and hold Vendor and the component manufacturer harmless and/or OEM from and against any and all claims, damages, losses, costs, expenses and liabilities arising out of or in connection with such use or sale.
10. Services. The use and provision of any Services shall be subject to any additional accepted order, services agreement or similar terms and conditions entered into by Vendor and Buyer in relation to such Services. The term of this Agreement with respect to any Services shall include the terms and conditions as set out in such accepted order, services agreement or terms and conditions and this Agreement may be terminated in relation to any Services as set out expressly therein or by mutual agreement of the parties. The parties expressly waive the application of articles 2125 and following of the Civil Code of Quebec.
11. Applicable Law and Forum. (a) Any claim, dispute or controversy between Vendor and Buyer, including their affiliates, contractors and agents and each of their respective employees, directors and officers, arising from or relating to this Agreement and its interpretation, or the breach, termination or validity thereof, the relationships which result from this Agreement (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), Vendor’s advertising, or any related purchase (a “Dispute”) shall be governed by the laws of the Province of Quebec and the federal laws of Canada applicable therein, without regard to conflicts of law principles. Vendor and Buyer agree that the UN Convention for the International Sale of Goods will have no force or effect on this Agreement. (b) Vendor and Buyer agree that any Dispute shall be brought exclusively in the court of competent jurisdiction in the District of Montreal, Quebec. Buyer and Vendor agree to submit to the personal jurisdiction of the applicable provincial or federal courts located in the province of Quebec and agree to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts.
12. Force Majeure. Vendor shall not be liable for any failure to perform any of its obligations under this Agreement during any period in which such performance is delayed by circumstances beyond its reasonable control, including, but not limited to, acts of God, natural or artificial disasters, fires, floods, epidemics, quarantine restrictions, riots, wars, acts of terrorism, strikes, delays in transportation or by carriers, Product, component or material shortages or the inability to obtain labor, materials, Products or component through regular sources, acts or omissions of other parties, acts or omissions of civil or military authorities, governmental priorities, or changes in law. In an event of force majeure condition, Vendor’s time for performance shall be extended for a period equal to the time lost as a consequence of the force majeure condition without subjecting Vendor to any liability or penalty. Vendor may, at its option, cancel the remaining performance, without any liability or penalty, by giving notice of such cancellation to Buyer.
13. Non-Waiver. No course of dealing or failure of Vendor or Buyer to strictly enforce any term, right or condition of this Agreement shall be construed as a waiver of that term, right or condition nor shall Vendor’s acceptance of a purchase order be deemed as an acceptance of any terms and conditions therein. The waiver of any provision hereof or of any breach or default hereunder shall not be deemed a waiver of any other provision hereof or breach or default hereunder.
15. Entire Agreement. This Agreement (together with any agreements, policies or terms incorporated herein by reference) shall constitute the complete, final and exclusive statement of the terms of the agreement between Vendor and Buyer with respect to the subject matter of this Agreement and the transactions between them and shall not be modified or rescinded, except by a writing signed by Vendor and Buyer. The provisions of this Agreement supersede all prior oral and written quotations, communications, agreements and understandings of Vendor and Buyer with respect to the subject matter of this Agreement. Products furnished and Services rendered by Vendor are done so only in accordance with this Agreement.
16. General. As used herein, terms appearing in the singular shall include the plural and terms appearing in the plural shall include the singular. No rights, duties, agreements or obligations hereunder may be assigned or transferred by Buyer, by operation of law, merger or otherwise, without the prior written consent of Vendor. Any attempted or purported assignment shall be void. Vendor’s obligations under the Agreement may be performed by divisions, subsidiaries or affiliates of Vendor. The obligations, rights, terms and conditions hereof shall be binding on Vendor and Buyer and their respective successors and assigns. Vendor and Buyer are independent contractors. No provision of this Agreement will or shall be deemed to create an association, trust, partnership, joint venture or other entity or similar legal relationship between Vendor and Buyer, or impose a trust, partnership or fiduciary duty, obligation or liability on or with respect to such entities. Neither party will have any rights, power or authority to act or create an obligation, express or implied, on behalf of another party. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. Any provision hereof which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof in that jurisdiction or affecting the validity or enforceability of such provision in any other jurisdiction. Vendor reserves the right to update these Terms at any time, effective upon posting an updated version at https://hypertec.com/terms-conditions/. Les parties aux présentes ont expressément requis que les présentes modalités et les documents y afférant soient rédigés en langue anglaise. Vendor and Buyer have expressly requested that these Terms and any ancillary documents be drafted in English.