For the purposes of these Terms and Conditions of Sale, the term "contract" shall mean the agreement between Prosilica, Inc. ("Supplier") and Buyer arising as a result of Buyer's submission of an order for Supplier's products. Such contract shall be deemed to incorporate and be governed by these Terms and Conditions. THESE TERMS AND CONDITIONS SHALL TAKE PRECEDENCE OVER ANY TERMS AND CONDITIONS THAT APPEAR IN BUYER'S ORDER OR IN ANY DOCUMENTS INCORPORATED BY REFERENCE IN BUYER'S ORDER. No term or condition of Buyer's order additional to or different from these Terms and Conditions shall become part of the contract unless explicitly agreed to in writing by Supplier. Retention by Buyer of any products delivered by Supplier, or payment by Buyer of any invoice rendered hereunder, shall be conclusively deemed acceptance of these Terms and Conditions. Supplier's failure to object to any provision contained in any communication from Buyer shall not be construed as a waiver of these Terms and Conditions, nor as an acceptance of any such provision.
1. Quotations: Prices, specifications and dates for delivery referenced in Seller's quotations are for information purposes only and shall not be binding on Seller until all technical requirements have been agreed and Seller has accepted Buyer's order. Quotations terminate if not accepted by Buyer within 30 days.
2. Orders: By submitting an order to Supplier, Buyer agrees to be subject to these Terms and Conditions of Sale in their entirety. All orders must be bona fide commitments showing definite prices and quantities and mutually agreed shipping dates. No order, whether or not submitted in response to a quotation by Supplier, shall be binding upon Supplier until accepted in writing by Supplier.
3. Prices and Taxes: Prices do not include federal, state or local taxes, including without limitation sales, use or excise taxes now or hereafter enacted, applicable to the products sold in this transaction, which taxes may, in Supplier's discretion, be added by Supplier to the sales price or billed separately and which taxes shall be paid by Buyer unless Buyer provides Supplier with any necessary tax exemption certificate.
4. Shipment and Delivery: All products will be shipped ExWorks from Supplier's premises and may be so shipped in several lots. In the absence of specific instructions, Supplier will select the carrier and ship "collect", but shall not be deemed thereby to assume any liability in connection with the shipment nor shall the carrier be construed to be the agent of Supplier. Buyer must provide it's own insurance. Title and risk of loss or damage to all products sold hereunder shall pass from Supplier to Buyer upon delivery by Supplier to the possession of the carrier, provided that Supplier reserves a purchase money security interest in the products. Any claims for loss, damage or failed delivery thereafter shall be filed with the carrier. All products shall be deemed finally inspected and accepted within ten (10) days after delivery unless notice of rejection is given in writing to Supplier within such period. Acceptance shall constitute acknowledgement of full performance by Supplier of all obligations under the contract except as stated at Section 9 (Warranties).
5.
Terms of Payment: Each shipment shall be a separate transaction
and Buyer will be invoiced on date of dispatch. Unless otherwise
stated on Supplier's invoice, terms of payment shall be net thirty
(30) days from date of invoice. Supplier may, in its sole discretion,
determine at any time that Buyer's financial condition requires
payment in advance, and, if such requirement is not met, may cancel
the order or any part thereof.
6. Contingencies: Supplier shall not be liable for any delay in
delivery or for non-delivery, in whole or in part, caused by the
occurrence of any contingency beyond the control of Supplier, including,
by way of illustration but not limitation, war (whether an actual
declaration thereof is made or not), sabotage, insurrection, riot
or other act of civil disobedience, act of a public enemy, failure
or delay in transportation, act of any government or any agency
or subdivision thereof, judicial action, labor dispute, accident,
fire, explosion, floods, storm or other act of God, shortage of
labor, fuel, raw material or machinery or technical failure where
Supplier has exercised ordinary care in the prevention thereof.
If any such contingency occurs, Supplier may allocate production
and deliveries among Supplier's customers.
7. Equipment: Supplier may modify specifications provided the modifications do not adversely affect the performance of the equipment to be supplied under the contract ("the equipment"). In addition, Supplier may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by government authority, or availability of materials from suppliers, provided Supplier gives Buyer 60 days written notice of changes and acceptance is made by Buyer. In the event that the changes made by Supplier are not acceptable to the Buyer, Buyer may cancel any orders for the equipment without any further cost or obligation to purchase.
8.
Software: Supplier shall at all times have and retain title and
full ownership of all software, firmware programming routines, and
documentation thereof supplied by Supplier for use with the equipment,
and of all copies thereof made by Buyer (collectively "software").
Supplier grants Buyer a non-exclusive and non-transferable license
to use such software solely for use with the equipment. Buyer shall
take all reasonable steps to protect Supplier's proprietary interest
in the software and shall not transfer or otherwise provide the
software to any third party.
9. Limitation of Warranties:
A. Supplier warrants that Prosilica EC-series, GC-Series, and GE-Series cameras shall be free from defects
in material and workmanship under normal use for a warranty period of two
years from date of shipment to Buyer save that Supplier does not
warrant that operation of the software will be completely uninterrupted
or error free or that all program errors will be corrected. For GB-Series cameras, the warranty period is 60 days only. Buyer
shall be responsible for determining that the equipment is suitable
for Buyer's use and that such use complies with any applicable local,
state or federal law. Provided that Buyer notifies Supplier in writing
of any claimed defect in the equipment immediately upon discovery
and any such equipment is returned to the original shipping point,
transportation charges prepaid, within one year from date of shipment
to Buyer and upon examination Supplier determines to its satisfaction
that such equipment is defective in material or workmanship, i.e.
contains a defect arising out of the manufacture of the equipment
and not a defect caused by other circumstances, including, but not
limited to accident, misuse, unforeseeable use, neglect, alteration,
improper installation, improper adjustment, improper repair, or
improper testing, Supplier shall at its option repair or replace
the equipment, shipment to Buyer prepaid. Supplier shall have reasonable
time to make such repairs or to replace such equipment. Any repair
or replacement of equipment shall not extend the period of warranty.
Opening the housing of an EC-Series, GC-Series, GE-Series, or other housed camera voids the warranty of that camera. This warranty is limited to afore mentioned warranty period, without regard
to whether any claimed defects were discoverable or latent on the
date of shipment.
B. If Buyer shall fail to pay when due any portion of the purchase
price or any other payment required from Buyer to Supplier under
this contract or otherwise, all warranties and remedies granted
under this Section 9 may, at Supplier's option, be terminated.
C. THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER
REPRESENTATIONS, WARRANTIES AND COVENANTS, EXPRESS OR IMPLIED, WITH
RESPECT TO THE EQUIPMENT AND ANY DEFECTS THEREIN OF ANY NATURE WHATEVER,
INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE. SUPPLIER SHALL NOT BE LIABLE FOR, AND
BUYER ASSUMES ALL RISK OF, ANY ADVICE OR FAILURE TO PROVIDE ADVICE
BY SUPPLIER TO BUYER REGARDING THE EQUIPMENT OR BUYER'S USE OF THE
SAME. UNDER NO CIRCUMSTANCES SHALL SUPPLIER BE LIABLE TO BUYER UNDER
ANY TORT, NEGLIGENCE, STRICT LIABILITY, OR PRODUCT LIABILITY CLAIM
AND BUYER AGREES TO WAIVE SUCH CLAIMS. SUPPLIER'S SOLE AND EXCLUSIVE
LIABILITY, AND BUYER'S SOLE AND EXCLUSIVE REMEDY, FOR ANY NONCONFORMITY
OR DEFECT IN THE PRODUCTS OR ANYTHING DONE IN CONNECTION WITH THIS
CONTRACT, IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE,
SHALL BE AS SET FORTH IN SUBSECTION 9A HEREOF AS LIMITED BY SUBSECTION
9B HEREOF. THIS EXCLUSIVE REMEDY SHALL NOT HAVE FAILED OF ITS ESSENTIAL
PURPOSE (AS THAT TERM IS USED IN THE UNIFORM COMMERCIAL CODE) PROVIDED
THAT THE SELLER REMAINS WILLING TO REPAIR OR REPLACE DEFECTIVE EQUIPMENT
(AS DEFINED IN SUBSECTION 9A) WITHIN A COMMERCIALLY REASONABLE TIME
AFTER RECEIVING SUCH EQUIPMENT. BUYER SPECIFICALLY ACKNOWLEDGES
THAT SELLER'S PRICE FOR THE EQUIPMENT IS BASED UPON THE LIMITATIONS
OF SUPPLIER'S LIABILITY AS SET FORTH IN THIS CONTRACT.
10. Patents: Supplier shall defend any suit or proceeding brought
against Buyer to the extent that it is based on a claim that any
equipment manufactured by Supplier infringes in construction or
design a United States patent, and shall indemnify Buyer against
all costs, damages and expenses finally awarded against Buyer provided
that Buyer notifies Supplier promptly in writing of any such claim
and gives Supplier full and complete authority, information and
assistance for the defense of such claim and provided further that
Supplier shall have sole control of the defense and of the negotiations
for settlement, if any, of such claim. If any such equipment is
held in construction or design directly to infringe any United States
patent and the use of said equipment is enjoined, or in case any
equipment may, in the opinion of Supplier, be held to infringe,
Supplier may, at its expense and option, either (a) procure for
Buyer the right to continue using said equipment, (b) replace said
equipment with a suitable non-infringing product, (c) suitably modify
said equipment, or (d) refund the purchase price of said equipment,
less depreciation at twenty percent (20%) per year, and accept its
return. Supplier shall not be liable for any cost or expense incurred
without Supplier's written authorization. Supplier shall not be
obligated to defend or be liable for costs and damages if the infringement
arises out of compliance with Buyer's specification or from a combination
with or an addition to equipment not manufactured or developed by
Supplier or a modification of the equipment after delivery or the
use of equipment beyond that established by Supplier or approved
in writing by Supplier. THE FOREGOING STATES THE ENTIRE LIABILITY
OF SUPPLIER, AND THE EXCLUSIVE REMEDY OF BUYER, WITH RESPECT TO
ANY ALLEGED PATENT INFRINGEMENT BY THE SAID EQUIPMENT.
11. Limitation of Liability and Buyer Indemnity: IN NO EVENT, REGARDLESS OF THE FORM OF ACTION, SHALL SUPPLIER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL LOSSES OR DAMAGES ARISING OUT OF THE SALE OF ITS PRODUCTS TO BUYER OR ARISING OUT OF ANYTHING DONE IN CONNECTION WITH THE CONTRACT, INCLUDING, BUT NOT LIMITED TO, LOSSES OR DAMAGES ARISING OUT OF CLAIMS FOR LOSS OF USE, BUSINESS, GOODWILL, OR PROFITS, AND CLAIMS ARISING OUT OF THIRD PARTY ACTIONS, REGARDLESS OF WHETHER SUCH THIRD PARTY ACTIONS, OR ANY OTHER CLAIMS, LOSSES, OR DAMAGES, WERE REASONABLY FORESEEABLE TO BUYER OR SUPPLIER. BUYER'S EXCLUSIVE REMEDY ARISING OUT OF ITS PURCHASE AND USE OF SUPPLIER'S PRODUCTS, OR ARISING OUT OF ANYTHING DONE IN CONNECTION WITH THE CONTRACT, SHALL BE FOR DAMAGES AND NO CLAIM OR CLAIMS OF ANY KIND, WHETHER BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WARRANTY AND STRICT LIABILITY), STATUTORY OR REGULATORY PROVISIONS, INDEMNITY, CONTRIBUTION, OR OTHERWISE, SHALL BE GREATER IN AMOUNT IN AGGREGATE THAN THE PURCHASE PRICE OF THE PRODUCTS IN RESPECT OF WHICH DAMAGES ARE CLAIMED.
Buyer shall indemnify and hold harmless Supplier, its officers, agents, employees, subsidiaries, parents, affiliates and insurers from and against any and all liabilities, damages, losses, claims, lawsuits, including costs and expenses in connection therewith, for death or injury to any persons or loss of any property whatsoever, caused in any manner by Buyer's possession, use or operation of equipment.
12.
Proprietary Information: Buyer represents that it has adopted reasonable
procedures to protect Proprietary Information, as defined hereafter,
including binding agreements with employees and consultants to prevent
unauthorized publication, disclosure or use of such during or after
the term of their employment by or services for Buyer. Buyer shall
not use Proprietary Information except as required for the use of
the equipment, shall not disclose Proprietary Information to any
third party, and shall not transmit any documents or copies thereof
containing Proprietary Information to any third party, except as
may be authorized in writing by Supplier. This Section 12 shall
survive termination of the contract.
"Proprietary Information" shall mean information or data
of Supplier, or a third person to whom Supplier owes obligations
of confidentiality, and which is furnished or to be furnished to
Buyer in written, graphic or machine-readable form and is marked
proprietary or confidential. Where copies or alternative forms of
information or data are received from Supplier, such information
or data shall be considered Proprietary Information if at least
one of said copies or alternative forms is marked proprietary or
confidential.
This Section 12 shall not apply to information which Buyer demonstrates
was in Buyer's possession prior to receipt from Supplier or information
which Buyer demonstrates is or has become available to the public
or general knowledge in the industry otherwise than through the
fault of Buyer.
13. Rescheduling and Cancellation: Supplier shall have the right without penalty or payment to cancel any order accepted (i) if Buyer fails to make any payment when due to Supplier under the contract or any other contract (ii) if Buyer violates any of these Terms and Conditions, or (iii) if Buyer's credit becomes impaired. Buyer may cancel or reschedule any order with prior written notification.
14. Non-Waiver; Remedies: No waiver of any breach of these Terms and Conditions shall constitute a waiver of any prior or subsequent breach of any similar or dissimilar provision or a modification of the contract. All Supplier rights and remedies, whether evidenced hereby or by any other contract or document, shall be cumulative and nonexclusive and may be exercised singularly or concurrently.
15. Applicable Law and Actions to Recover Damages: These Terms and Conditions have been created with reference to the laws of the British Columbia, Canada. If any provision of these Terms and Conditions is held to be unenforceable, such holding shall not affect the enforceability of any other provision. Any legal presumption that terms in this contract shall be strictly construed against the party who drafted such terms or who benefits from such terms shall not be employed in construing and interpreting this contract. Prior to commencement of any legal proceedings, Buyer and Supplier shall meet at a senior level to attempt to resolve differences. Notwithstanding any attempts to resolve differences or negotiations regarding such differences, any action brought by Buyer against Supplier arising out of this contract or Buyer's purchase and use of the equipment must be commenced within one year after such action accrues and in no event later than two years after date of shipment of such equipment.
16. Export: Regardless of any disclosure made by Buyer to Supplier of the ultimate destination of Supplier products, Buyer shall not export either directly or indirectly any Supplier product, or any system incorporating said product either in contravention of statute or regulation or without first obtaining all required licenses and permits from the United States Department of Commerce and any other relevant agencies or departments of the United States government.
17. Assignment: The contract shall be binding upon and inure to the benefit of the parties and their respective legal representatives, successors and permitted assigns. The contract is personal to Buyer, and Buyer may not assign any of its rights or delegate any of its obligations thereunder, in whole or in part, without the prior written consent of Supplier which may be withheld for any reason.
18. Complete Agreement; Modifications: This contract constitutes the entire agreement between the parties relating to the sale of the equipment and no addition to or modification of any provision of said agreement shall be binding upon Supplier unless agreed in writing by Supplier.
19. Notices: All notices given under the contract shall be in writing, mailed by first class mail, certified or registered, e-mail, fax or delivered by hand to the address of the other party set forth in the quotation or to such other address as such party may designate from time to time by such notice, and shall take effect when received.