TERMS AND CONDITIONS OF SALE
The following terms shall apply to any purchase of products or services specified in the invoice (the ‘Deliverables’) by HARD-LINE (‘Seller’), and their acceptance is an express condition of such purchase. The Customer (‘Customer’) of the deliverables shown on the invoice shall be deemed to have full knowledge of the terms and such terms shall be binding on the customer if the deliverables are delivered to the customer.
The terms and conditions are limited to those contained herein and the additional terms and conditions contained in the ‘Terms and Conditions’ link at www.hard-line.com herein by reference. Any terms not defined herein are defined at www.hard-line.com. Any additional or different terms or conditions in any form delivered by you, the Customer, are hereby deemed to be material alterations and notice of objection to them and rejection of them is hereby given.
By accepting delivery of the products or by engaging the seller via an invoice, purchase order, quote or other documentation to provide products or perform services, the customer agrees to be bound by and accepts these terms and conditions unless the customer and seller have signed a separate agreement for the provision of products or performance of services, in which case the separate agreement will govern.
1 GOVERNING TERMS
These Terms together with the invoice (‘Invoice’) issued by the Seller and all Seller’s documentation referenced therein shall constitute the contract between the Customer and the Seller (the ‘Contract’). Product specifications listed in any Seller documentation are subject to change without notice and pictures shown therein may not be exact. In the event of any conflict or inconsistency between the Terms herein and the terms conditions contained in any purchase order or in any other form issued by the Customer, whether or not any such form has been acknowledged or accepted by Seller, the Terms herein shall prevail. No waiver, alteration or modification of the Terms shall be binding upon the Seller unless made in writing and signed by an authorized signing officer of the Seller.
These Terms and Conditions constitute a binding contract between the Customer and Seller and are referred to herein as either ‘Terms and Conditions’ or this ‘Agreement’. The Customer accepts these Terms and Conditions by making a purchase from or placing an order with the Seller or otherwise requesting products (the ‘Products’) or engaging Seller to perform any Services (as this and all capitalized terms are defined herein).
The Customer may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any such purchase order will be null and void. This Agreement including the terms contained in the ‘Terms and Conditions’ link at www.hard-line.com which the Customer acknowledges and agrees are incorporated herein by reference contains the entire understanding of the parties with respect to the matters contained herein and supersedes and replaces in its entirety any and all prior communications and any previous agreements and understandings, whether oral, written, electronic or implied, if any, between the parties with respect to the subject matter hereof.
Except as expressly stipulated herein, there are no representations, conditions or warranties by the Seller with respect to the said Deliverables or for their fitness for the purpose and use by the Customer.
2 ACCEPTANCE OF ORDERS
All orders are subject to final acceptance by the Seller and are subject to the Seller’s terms and conditions in effect at the time of delivery. The Seller will not recognize conflicting customer’s terms and conditions unless specifically agreed to in writing by the Seller. Any amount owing becomes due and payable immediately in the case of ownership, attachment or execution against the buyer or their representative unless otherwise agreed.
Taxes: All applicable taxes are extra.
Shipping: All shipping charges are extra.
All orders are subject to the INCOTERM FCA unless otherwise negotiated prior to order confirmation.
2.1 CANCELLATION AND CHANGES
If the Customer cancels a purchase order, the Seller shall be entitled to require the Customer to accept delivery of and be liable for all Deliverables processed prior to receipt of notice of cancellation. If the Customer changes a purchase order, the Seller shall be entitled to refuse the changes and to require the Customer to accept delivery of and be liable for all Deliverables processed prior to receipt of notice of change.
Any returns (shortage, errors, damaged or surplus) must be made within ninety (90) days from the date of shipment from the Seller’s premises and the Seller has no liability thereafter. Refer to Warranty section for timelines to return defective Products.
Surplus Deliverables and Deliverables ordered in error maybe returned to the Seller for credit only.
The Seller will not accept any returned Product unless such returns are authorized in writing in advance and are subject to handling charges. Return authorizations shall be valid for 30 days. Only Deliverables that are undamaged may be returned. Items not in their original packaging may be subject to an additional 20% (minimum $25.00) repackaging charge. A 20% (minimum $25.00) restocking charge may apply. Applicable repackaging and restocking charges will become immediately due and payable by the Customer.
Projects or custom orders are non-returnable.
2.3 RISK OF LOSS
If the Customer provides the Seller with the Customer’s carrier account number or selects a carrier other than a carrier that regularly ships for the Seller, title to Products and risk of loss or damage during shipment pass from the Seller to the Customer upon delivery to the carrier (FOB Origin, freight collect). For all other shipments, title to Products and risk of loss or damage during shipment pass from the Seller to the Customer upon delivery to the specified destination (FOB Destination, freight prepaid and added). Notwithstanding the foregoing, title to software will remain with the Seller, and Customer’s rights therein are contained in the agreement, if applicable, between the Seller and the Customer.
Unless otherwise stated on the face of the purchase order (the ‘Order’), all Deliverables shall be delivered FCA (Incoterms 2010 as published by the International Chamber of Commerce) from the Seller’s premises. Title shall pass to the Customer upon pickup at the Seller’s premises by the chosen carrier. Loss or damage to Deliverables during shipment are the carrier’s responsibility. If a package is received damaged, the Customer shall note this on the carrier’s delivery slip and contact the carrier for instructions regarding a claim. In the case of shipping errors or shortages, the customer shall contact the seller within 10 (ten) days of receipt of the deliverables. The Seller will automatically ship the balance of an Order when available. However, if the balance owing is less than $5.00 it may automatically be cancelled by the Seller at its discretion. If this is not satisfactory to the Customer, the Customer shall contact the Seller to re-order the cancelled Deliverables.
2.4.1 Same day shipping
The Seller will use best efforts to process purchase orders for in stock items received by 11 AM EST/EDT (a ‘Qualifying Order’) available for same day shipment on selected couriers. If the Seller fails to ship a Qualifying Order the day it is received, Seller shall ship the Qualified Order the next business day.
The Products shall be packaged in accordance with all applicable Laws and any Customer specifications set forth on the purchase order and in such manner as may be required for the protection of the Products from damage or destruction by any hazard prior to acceptance of the Products by the Customer. All packages shall include labels and tags containing adequate and accurate information with respect to use, safety and treatment of the Products. The Seller shall ensure that the Products are properly contained, secured, labelled, safety marked, documented and inspected while handling, loading, transporting, delivery and unloading to comply with all applicable Laws. No separate or additional charges for containers, crating, boxing, bundling or other packaging materials shall be payable unless specified in the purchase order. The Seller shall be responsible for any Product that is damaged during shipment or requires additional handling because packaging and/or labelling did not comply with the required specifications.
2.5 EXPORT SALES
Equipment supplied pursuant to this agreement may be subject to laws and regulations governing the export of goods and technology from Canada and the United States. If equipment supplied hereunder is to be exported from Canada, then the Seller’s performance of its obligations hereunder is subject to the Customer obtaining the necessary approvals, licenses and permits required by Canadian and/or American law. The Customer shall not ship or divert any of the equipment hereunder, or any technical information relating thereto, to any country outside Canada in violation of Canadian and/or American export laws. The Customer will supply the Seller with all information required by the Seller to comply with all Canadian and American Export Administration Regulations and International Traffic in Arms regulations. Responsibility to comply with such legislation transfers to the Customer for any transfer of the Products. The Customer shall indemnify the Seller from all claims, damages, costs and expenses resulting from any breach of these provisions by the Customer.
2.6 TARIFF DOCUMENTATION
The Seller shall provide to the Customer, on request, any certificates of origin, affidavits of manufacturer or other tariff documentation for any Goods which receive preferential tariff treatment under any trade agreement or special tariff agreement (collectively, ‘Tariff Documentation’). The Tariff Documentation shall be provided with each shipment of the Products. The Seller shall update any Tariff Documentation and notify the Customer of any changes affecting eligibility under any applicable trade agreement or special tariff agreement within thirty (30) days after any change occurs. The Seller shall ensure that all Goods with foreign origin are marked in English with the country of origin.
The Seller reserves the right to make at any time such changes in detail or design, construction, arrangement or equipment as shall in its opinion constitute an improvement over that ordered provided the purchase price shall not be increased.
2.8 USAGE OF PRODUCT
The Seller’s products are not designed, intended, or authorized for use as components in systems intended for surgical implant within the body, or other applications intended to support or sustain life, or for any other related applications.
The Seller’s product could create a situation where personal injury or death may occur, including, but not limited to components being used in defense, transportation, medical, or nuclear applications. Should the Customer purchase or use the Seller’s products for any such unintended or unauthorized application, the Customer shall indemnify and hold the Seller and its officers, employees, subsidiaries, affiliates, and distributors harmless against all claims, costs, damages, and expenses, and reasonable attorney fees arising out of, directly or indirectly, any claim of personal injury or death associated with such unintended or unauthorized use, even if such claim alleges that the Seller was negligent regarding the design or manufacture of the part.
3 FINANCIAL MATTERS
3.1 MINIMUM INVOICE
The Seller shall be entitled to enforce a minimum single Invoice amount.
Refer to Seller’s current pricing as provided in the Quote. The Seller reserves the right to adjust pricing, Products and Service offerings for reasons including, but not limited to, changing market conditions, Product discontinuation, Product unavailability, supplier price changes and errors in advertisements. Prices herein specified shall, unless otherwise expressly stated, be fixed in Canadian dollars or US dollars exclusive of all duties of any kind and all packaging, loading, shipping, and federal or provincial taxes (GST/PST/HST), as applicable, which shall be shown as separate line items on the Invoice.
Where federal or provincial taxes were determined to be exempt from taxes and if shall later be found that such Deliverables are not so exempt, then the Customer agrees to pay forthwith on demand by the Seller the amount of such taxes and in default of such taxes then the Seller shall have all rights and remedies below provided for non-payment of the purchase price.
Orders are not binding upon the Seller until accepted by the Seller. The Customer agrees to pay the total purchase price for the Products plus shipping (to the extent shipping is not prepaid by the Customer), including shipping charges that are billed to the Seller as a result of using the Customer’s carrier account number.
3.3 AVAILABILITY DISCLAIMER
All orders are subject to Product availability and the availability of personnel to perform the Services. Therefore, the Seller cannot guarantee that it will be able to fulfill the Customer’s orders. If Services are being performed on a time and materials basis, any estimates provided by the Seller are for planning purposes only.
Terms of payment are within the Seller’s sole discretion. Invoices to Customers with established credit accounts shall be paid within the payment terms approved for the Customer from the Invoice date. All other Customers shall make payment by e-transfer, electronic funds transfer, or wire when their purchase order is made and prior to delivery. No C.O.D. shipments. Payments are accepted in Canadian or US dollars, as per the currency indicated on the Invoice.
3.4.1 Payment for services
In connection with Services being performed pursuant to a Quote, the Customer will pay for the Services in the amounts and in accordance with any payment schedule set forth in the applicable Quote. If no payment schedule is provided, the Customer will pay for the Services as invoiced by the Seller. Invoices are due and payable within the time period specified on the Invoice, measured from the date of Invoice, subject to continuing credit approval by the Seller. The Seller may invoice the Customer separately for partial shipments, and the Seller may invoice the Customer for all the Services described in a Quote or any portion thereof.
3.5 INTEREST AND COLLECTION COSTS
The Customer agrees to pay interest on all overdue accounts at two percent (2.0%) per month, or at twenty four percent (24.00%) per annum. In the event of a payment default, the Customer will be responsible for the Seller’s costs of collection, including, but not limited to, court costs, filing fees and lawyers’ fees. In addition, if payments are not received as described above, the Seller reserves the right to suspend Services or further shipments of Products until payment is received.
3.6 RIGHT TO REPOSSESS AND SECURITY
In the event the Customer defaults on payment in whole or in part, the Seller shall have the right, without notice to the Customer and without prejudice to its other rights, to enter the Customer’s property and repossess Products (i.e. machinery, goods or chattels) or any part thereof wherever they may be found and to see the same by private sale or public auction without notice or advertisement to any person, firm, or corporation, without in any way being accountable to the Customer, or without becoming liable to the customer for any damages whatsoever by reason of such repossession or reselling. All costs incurred by the Seller in repossession, removal, repairing and reselling shall be added to the claim of the Seller and form monies payable under this contract. The proceeds of any sale shall be applied on the amounts payable hereunder and any surplus balance shall be returned to the Customer and any deficiencies shall be paid by the Customer. The Seller hereby takes and reserves an interest in the Products to secure the payment of its purchase price and the Customer hereby grants the Seller a purchase money security interest in all of its right, title and interest in and to the Product as security for the payment of the purchase price.
Until the purchase price is paid in full, the Customer will not sell or agree to sell, or mortgage, charge or dispose of, or intentionally injure or abandon the said Products, nor remove them from the country, district or community in which the said Product was delivered to the Customer without the Seller’s prior written consent. The Customer will not remove any name plate, insignia, serial number of the Seller from the Products and will keep the Product in good repair and working order until all monies payable hereunder have been paid. The Seller may inspect the said Product at all reasonable times and, if in its opinion either before or after repossession the said Products are not in good order and repair the Seller may have the said Products repaired and the cost thereof shall be paid by the Customer to the Seller forthwith on demand.
4.1 GENERAL CLAUSE
The Seller warrants that the Deliverables will be of commercial quality at the time of shipment. The Seller must be given written notice identifying the defective product and specifying the defect within ninety (90) days after receipt of the product by the customer. The Seller must also be given the opportunity to inspect the allegedly defective product, and if requested by the Seller, the allegedly defective product must be returned to the Seller at the customer’s own expense. Failure to give required notice within the time provided, or failure to return the allegedly defective product to the Seller following the Seller’s request constitutes a waiver of all claims against the Seller.
Except as set forth herein or in any quote that expressly amends the Sellers’s warranty, and subject to applicable law, the Seller makes no other, and expressly disclaims all other, representations, warranties, conditions or covenants, either express or implied (including without limitation, any express or implied warranties or conditions of fitness for a particular purpose, merchantability, durability, title, accuracy or non-infringement) arising out of or related to the performance or nonperformance of the services, including but not limited to any warranty relating to third party services, any warranty with respect to the performance of any hardware or software used in performing services and any warranty concerning the results to be obtained from the services. This disclaimer and exclusion shall apply even if the express warranty and limited remedy set forth herein fails of its essential purpose. The customer acknowledges that no representative of the seller or of its affiliates is authorized to make any representation or warranty on behalf of Seller or any of its affiliates that is not in this agreement or in a statement of work expressly amending Seller’s warranty.
The Seller will not be responsible for and no liability shall result to the Seller or any of its Affiliates for any delays in delivery or in performance which result from any circumstances beyond the Seller’s reasonable control, including, but not limited to, Product unavailability, carrier delays, delays due to fire, severe weather conditions, failure of power, labour problems, acts of war, terrorism, embargo, acts of God or acts or laws of any government or agency. Any shipping dates or completion dates provided by the Seller or any purported deadlines contained in a Quote or any other document are estimates only.
The Seller warrants to the Customer that
(i) the Services will be performed to the standard of care, skill and diligence normally provided by competent professionals in their performance of services like the Services contemplated in the Purchase Order;
(ii) the Seller will proceed diligently, continuously and expeditiously in accordance with accepted industry practices and standards to perform or cause to be performed the Services;
(iii) the persons performing the Services on behalf of the Seller will not unreasonably interfere with the Buyer’s activities or the activities of any other person at the Site; and
(iv) the persons performing the Services on behalf of the Seller have been properly trained with respect to occupational health and safety concerns associated with the Seller’s activities and the performance of the Service.
The Customer’s sole and exclusive remedy and the Seller’s entire liability with respect to this warranty will be, at the sole option of the Seller, to either
(i) use its reasonable commercial efforts to reperform or cause to be reperformed any Services not in substantial compliance with this warranty or
(ii) refund amounts paid by the Customer related to the portion of the Services not in substantial compliance; provided, in each case, the Customer notifies the Seller in writing within five (5) business days after performance of the applicable Services.
The Seller shall perform and shall cause each Seller Related Party to perform the Services safely, in accordance with the specifications and the Agreement, and in accordance with industry standards and all applicable Laws. Subcontracting shall not release the Seller from any of its obligations under the Agreement, provided that performance of any Services in full by a subcontractor shall be deemed performance of such Services by the Seller. The Seller shall preserve and protect the rights of the Customer under the Agreement with respect to any Services to be performed by a subcontractor, including requiring each subcontractor to perform the services in compliance with these Terms and Conditions.
The Seller warrants that, except as specified below, the software will, when properly installed, execute in accordance with the Seller’s specification and any other specifications set out in the purchase order. If a non-conformity is discovered during the period ending one (1) year after the date of installation and written notice of such non-conformity is provided to the Seller promptly after such discovery and within that period, including a description of the non-conformity and complete information about the manner of its discovery, the Seller shall correct the non-conformity by, at its option, either:
(i) modifying or making available to the Customer instructions for modifying the Software; or
(ii) making available the necessary corrected or replacement programs. The Seller shall have no obligation with respect to any non-conformities resulting from
a. unauthorized modification of the Software or
b. Customer supplied software or interfacing that has not been authorized by the Seller to be utilized with the software.
Except as set out in manuals or other documentation associated with the software, the Seller does not warrant that the functions contained in the software will operate in combinations which may be selected for use by the Customer. The Seller warrants that as of the time of delivery of the software products or performance of the Services, the deliverables and the Services do not contain any computer virus, computer worm, Trojan horse, authorization key, licence control utility, software lock or any similar coding.
4.4 TELEOP, HARD-LINE RRC AND FARSIGHT
The Seller warrants its equipment and replacement parts to be free from defects in material and workmanship for twelve (12) months from delivery to the first user (purchaser).
Defective parts returned to the Seller during the warranty period will be repaired or replaced in its discretion unless exclusions apply. This Seller’s warranty does not include shipping costs associated with repair or replacement.
The Seller’s installations of its equipment form part of this warranty, but repair or replacement will be limited to the individual component proven to be defective.
This warranty does not apply to equipment or parts found by the Seller to have been damaged through normal wear and tear, misuse, abuse, neglect, accidents, forces of nature, or alterations not specifically authorized by the Seller. Wear and tear includes normal deterioration of moving parts, seals, and corrosion of metal components.
This warranty does not include preventative maintenance, operating services, adjustments, and inspections, which are the responsibility of the Customer.
This warranty replaces all statutory and other warranties implied by law. The Customer has conducted its due diligence in choosing the Seller’s equipment and does not rely on any representation of merchantability or fitness for purpose.
The Seller shall in no event be liable for consequential or incidental damages arising from the use of its equipment or products.
5 SERVICES AND SYSTEMS
The Seller reserves the right, in its sole discretion, to make any changes to the Products that it deems necessary or useful to:
(i) maintain or enhance
a. the quality or delivery of Products to its customers,
b. the competitive strength of or market for the Seller’s Products or
c. the Products’ cost efficiency or performance; or
(ii) to comply with applicable Law.
5.1 SYSTEMS AND SOFTWARE
Except as otherwise expressly provided in this Agreement, as between the parties:
(i) The Seller has and will retain sole control over the operation, provision, maintenance and management of the Products, including the equipment, parts, software and the selection, deployment, modification and replacement of the Software; and the performance of support, maintenance, upgrades, corrections and repairs; and
(ii) The Customer has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Products, and sole responsibility for all access to and use of the Products by any Person by or through the Products and by any other means controlled by the Customer or any authorized user, including any information, instructions or materials provided to the Customer.
Customer shall not, and shall not permit any other person to, access or use the Products except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, the Customer shall not, and shall not permit any person to, except as this Agreement expressly permits:
a. copy, modify or create derivative works or improvements of the Products;
b. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Products to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
c. reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Products, in whole or in part;
d. bypass or breach any security device or protection used by the Products or access or use the Products other than by an authorized user;
e. input, upload, transmit or otherwise provide to or through the Products any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code;
f. damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Products, in whole or in part;
g. remove, delete, alter or obscure any trademarks, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Products, including any copy thereof;
h. access or use the Products in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right, or that violates any applicable Law;
i. access or use the Products for purposes of competitive analysis of the Products, the development, provision or use of a competing software service or product or any other purpose that is to the Seller’s detriment or commercial disadvantage;
j. access or use the Products in, or in association with, the design, construction, maintenance, operation of any hazardous environments, systems or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Products could lead to personal injury or severe physical or property damage; or
k. otherwise access or use the Products beyond the scope of the authorization granted herein.
5.2 CUSTOMER DATA
5.2.1 Customer Control and Responsibility
The Customer has and will retain sole responsibility for:
(i) all Customer data, including its content and use;
(ii) all information, instructions and materials provided by or on behalf of the Customer or any authorized user in connection with the Products;
(iii) the security and use of the Customer’s and its authorized users’ access credentials; and
(iv) all access to and use of the Products directly or indirectly by or through the Customer’s systems or its authorized users’ access credentials, with or without the Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
5.2.2 Access and Security
The Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to:
(i) securely administer the distribution and use of all access credentials and protect against any unauthorized access to the Products; and
(ii) control the content and use of the Customer’s data.
5.3 BETA SERVICES
From time to time, the Seller may make Beta Services available to Customers at regular or discounted price. The Customer may choose to try such Beta Services or not in the Customer’s sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Beta Services are not considered Services under this Agreement. The Seller may discontinue any Beta Services at any time in its sole discretion and may never make them generally available.
Regular support hours are from 8:00am-5:00pm EST/EDT. Emergency support is available 24/7 at firstname.lastname@example.org (North America only).
6 GENERAL PROVISIONS
6.1 GOVERNING LAW
These Terms and Conditions, any quotes, the services hereunder and any sale of products hereunder will be governed by the laws of the province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of laws rules. Any arbitration, enforcement of an arbitration or litigation will be brought exclusively in Toronto, Ontario and the customer consents to the non-exclusive jurisdiction of the courts of Ontario with respect to any subject matter arising hereunder or relating thereto and waives the right to change venue. The parties hereby expressly exclude the application of the united nations convention on contracts for the international sale of goods and any local implementing legislation related thereto. Except in the case of nonpayment, neither party may institute any action in any form arising out of this Agreement or any Quote more than one (1) year after the cause of action has arisen. The rights and remedies provided to the Seller under this Agreement are cumulative, are in addition to, and do not limit or prejudice any other right or remedy available at law or in equity.
Any claim, dispute, or controversy (whether in contract, tort or otherwise, whether pre-existing, present or future, and including, but not limited to, statutory, common law, intentional tort and equitable claims capable in law of being submitted to binding arbitration) arising from or relating to the Products sold and the Services provided pursuant to this Agreement, the interpretation or application of these Terms and Conditions or any Quote or the breach, termination or validity thereof, the relationships which result from these Terms and Conditions or any Quote (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories hereto), or the Seller’s or any of its Affiliates’ advertising or marketing (collectively, a ‘Claim’) will be resolved, upon the election of any of the Seller, the customer or the third parties involved, exclusively and finally by binding arbitration. If arbitration is chosen, it will be conducted pursuant to the National Arbitration Rules of the ADR Institute of Canada, Inc. If arbitration is chosen by any party with respect to a Claim, neither the Seller nor the Customer will have the right to litigate that Claim in court or to have a jury trial on that Claim or to engage in pre-arbitration discovery, except as provided for in the applicable arbitration rules or by agreement of the parties involved. Further, the Customer will not have the right to participate as a representative or member of any class of claimants pertaining to any Claim. Notwithstanding any choice of law provision included in this Agreement, this arbitration agreement is subject to the Arbitration Act, 1991 (Ontario), as amended. The arbitration will take place exclusively in Toronto, Ontario. The language of the arbitration shall be conducted in English.
Any court having jurisdiction may enter judgment on the award rendered by the arbitrator(s). Each party involved will bear its own cost of any legal representation, discovery or research required to complete arbitration. The existence or results of any arbitration will be treated as confidential. Notwithstanding anything to the contrary contained herein, all matters pertaining to the collection of amounts due to the Seller arising out of the Products or Services will be exclusively litigated in court rather than through arbitration.
6.3 LIMITATION OF LIABILITY
Under no circumstances and notwithstanding the failure of essential purpose of any remedy set forth herein, will the Seller, its affiliates or its or their employees, directors, officers, suppliers, or agents be liable for:
(i) any incidental, indirect, special, punitive or consequential damages including but not limited to, loss of profits, business, revenues or savings, even if the seller has been advised of the possibilities of such damages or if such damages are otherwise foreseeable, in each case, whether a claim for any such liability is premised upon breach of contract, warranty, negligence, strict liability or other theory of liability;
(ii) any claims, demands or actions against the customer by any third party;
(iii) any loss or claim arising out of or in connection with the customer’s implementation of any conclusions or recommendations by the Seller or its affiliates based on, resulting from, arising out of or otherwise related to the products or services; or
(iv) any unavailability of the product for use or any lost, damaged or corrupted data or software.
In the event of any liability incurred by the Seller or any of its affiliates, the entire liability of the Seller and its affiliates for damages from any cause whatsoever will not exceed the lesser of:
(i) the dollar amount paid by the customer for the product(s) giving rise to the claim or the specific services giving rise to the claim; or
The Customer shall indemnify, defend and hold harmless the Seller, its affiliates and their respective directors, officers, employees, agents, consultants and subcontractors from and against any and all expenses, costs claims, losses, actions, lawyer’s fees, damages, duties, taxes, penalties or liabilities, including without limitation direct, indirect and consequential damages related to claims or actions arising from personal injury (including injuries resulting in death) or loss of or damage to property of others, or any amounts incurred by or which may become payable by the Seller arising directly or indirectly
(i) out of any breach by the Customer of the Terms;
(ii) out of the Customer’s use of the Deliverables; or
(iii) for which the Customer is at law responsible.
6.5 FORCE MAJEURE
With the exception of monies payable pursuant to the Invoice neither party shall be liable for any delay or failure of performance due solely to causes beyond its control without its fault or negligence including without limitation acts of God, strikes, fires, war, riot, flood, provided that the party whose performance is effected has given notice in writing to the other party of any such cause for delay or anticipated delay promptly after first obtaining notice thereof and has used its best efforts to make deliveries as expeditiously as possible taking such cause for delay into account.
6.6 NO LICENSE
The Seller reserves all rights to its intellectual property, including without limitation its trade names, trademarks, service marks, corporate logos, and material subject to its copyright (collectively, the ‘Seller Content’). Nothing herein grants the Customer any right or licence to use Seller Content for any purpose. The Customer acknowledges and agrees that the Seller Content and all rights, title and interest therein, is and shall remain the exclusive property of the Seller.
6.7 CONFIDENTIAL INFORMATION
Each party anticipates that it may be necessary to provide access to information of a confidential nature of such party, the Affiliates or a third party (hereinafter referred to as ‘Confidential Information’) to the other party in the performance of this Agreement and any Quote. ‘Confidential Information’ means any information or data in oral, electronic or written form which the receiving party knows or has reason to know is proprietary or confidential and which is disclosed by a party in connection with this Agreement or which the receiving party may have access to in connection with this Agreement, including but not limited to the terms and conditions of each Quote. Confidential Information will not include information which:
(i) becomes known to the public through no act of the receiving party;
(ii) was known to the receiving party, or becomes known to the receiving party from a third party having the right to disclose it and having no obligation of confidentiality to the disclosing party with respect to the applicable information; or
(iii) is independently developed by agents, employees or subcontractors of the receiving party who have not had access to such information.
To the extent practicable, Confidential Information should be clearly identified or labeled as such by the disclosing party at the time of disclosure or as promptly thereafter as possible, however, failure to so identify or label such Confidential Information will not be evidence that such information is not confidential or protectable.
Each party agrees to hold the other party’s Confidential Information confidential for a period of three (3) years following the date of disclosure and to do so in a manner at least as protective as it holds its own Confidential Information of like kind but to use no less than a reasonable degree of care. Disclosures of the other party’s Confidential Information will be restricted:
(i) to those individuals who are participating in the performance of this Agreement or the applicable Quote and need to know such Confidential Information for purposes of providing or receiving the Products or Services or otherwise in connection with this Agreement or the applicable Quote, or
(ii) to its business, legal and financial advisors, each on a confidential basis. Each party agrees not to use any Confidential Information of the other party for any purpose other than the business purposes contemplated by this Agreement and the applicable Quote. Upon the written request of a party, the other party will either return or certify the destruction of the Confidential Information of the other party.
If a receiving party is required by law, rule or regulation, or requested in any judicial or administrative proceeding or by any governmental or regulatory authority, to disclose Confidential Information of the other party, the receiving party will give the disclosing party prompt notice of such request so that the disclosing party may seek an appropriate protective order or similar protective measure and will use reasonable efforts to obtain confidential treatment of the Confidential Information so disclosed.
The Seller may assign or subcontract all or any portion of its rights or obligations with respect to the sale of Products or the performance of Services or assign the right to receive payments, without the Customer’s consent. The Customer may not assign these Terms and Conditions, or any of its rights or obligations herein without the prior written consent of the Seller. Subject to the restrictions in assignment contained herein, these Terms and Conditions will be binding on and inure to the benefit of the parties hereto and their successors and assigns.
No provision of this Agreement or any Quote will be deemed waived, amended or modified by either party unless such waiver, amendment or modification is in writing and signed by both parties. The relationship between the Seller and the Customer is that of independent parties and not that of employer/employee, partnership or joint venture. If any term or condition of this Agreement or a Quote is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or conditions hereof or thereof or the whole of this Agreement or the applicable Quote. Notices provided under this Agreement will be given in writing and deemed received upon the earlier of actual receipt or three (3) days after mailing if mailed postage prepaid by regular mail or airmail or one (1) day after such notice is sent by courier or facsimile transmission. Any delay or failure by either party to exercise any right or remedy will not constitute a waiver of that party to thereafter enforce such rights.