Terms and Conditions
These terms and conditions (“Terms”) are the only terms which govern the sale and licensing, of the goods and services, as the case may be, by GVE Global Vision Inc. (“Seller”) to You (“Purchaser”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale or licensing of the Goods and Services covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
The accompanying Purchase Order, and any attachments, specifications, instructions and other information, whether attached or incorporated by reference and these Terms (collectively, “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.
Goods and Services
Seller agrees to supply the goods and services identified in the Purchase Order and all deliverables related thereto (“Good and Services”) in accordance with the terms and conditions herein.
Delivery of Goods and Performance of Services
All Goods listed on the Purchase Order will be delivered within a reasonable time after the receipt of Purchaser’s Purchase Order. Seller shall not be liable for any delays, loss or damage in transit.
Unless otherwise agreed in writing, S all deliveries will be “Free on Board” (FOB) Destination, to the Ship To address indicated on the Purchase Order using Seller’s standard methods for packaging and shipping such Goods. Purchaser shall be responsible for all loading costs and provide equipment and labour reasonably suited for receipt of the Goods.
Seller shall use reasonable efforts to meet any performance dates to render the Services specified in the Purchase Order, and any such dates shall be estimates only.
With respect to the Services, Purchaser shall (i) cooperate with Seller in all matters relating to the Services and provide such access to Purchaser’s premises, and such office accommodation and other facilities as may reasonably be requested by Seller, for the purposes of performing the Services; (ii) respond promptly to any Seller request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Seller to perform Services in accordance with the requirements of this Agreement; and (iii) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
Purchaser Acts or Omissions
If Seller’s performance of its obligations is prevented or delayed by any act or omission of Purchaser or its agents, subcontractors, consultants or employees, Seller shall not be deemed in breach of its obligations or otherwise liable for any costs, charges or losses sustained or incurred by Purchaser, in each case, to the extent arising directly or indirectly from such prevention or delay.
Fees and Payment
Purchaser agrees to purchase the Goods and Services from Seller at the price (the “Price”) set forth in Seller’s quote and restated in the Purchase Order. Purchaser agrees to reimburse Seller for all reasonable travel and out-of-pocket expenses incurred by Seller in connection with the performance of the Services.
Purchaser shall pay all invoiced amounts due to Seller within thirty (30) days from the date of Seller’s invoice. Purchaser shall make all payments hereunder by wire transfer, cheque, or credit card (subject to administration fees) and in US dollars.
If Purchaser fails to make a payment when due, then, in addition to all other remedies that may be available to Seller:
Seller may charge interest on all past due amounts a rate of two percent (2%) per month;
Purchaser shall reimburse Seller for all reasonable costs incurred by Seller in collecting any such late payments of amounts due as well as any related interest;
Should failure to pay all outstanding sums due continue for sixty (60) days following receipt of written notice of such failure, Seller may disable Purchaser’s software, withhold, suspend, or revoke Purchasers license, and / or terminate this agreement immediately.
Seller warrants to Purchaser that for a period of one (1) year from the date of shipment of the Goods or Validation of Software, as the case may be (”Warranty Period”), that such Goods will conform to the specifications set forth in Seller’s corresponding user guide book as of the date of shipment and will be free from material defects in material and workmanship.
Seller warrants to Purchaser that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.]
This warranty is expressly given in lieu if any other express or implied warranties, including any implied warranty of merchantability or fitness for a particular purpose, and in lieu of any other obligation on the part of the Seller.The warranty will be null and void if Goods are moved or transported after completion of the installation. For additional Warranty information regarding Hardware, please refer to the corresponding Global Vision Support Program.
EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION, SELLER MAKES NO ADDITIONAL WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING ANY CONDITION OR WARRANTY OF MERCHANTABILITY, PURPOSE, OR RESULT, WHETHER EXPRESS OR IMPLIED, BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
Limitation of Liability
IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY PURCHASER OR COULD HAVE BEEN REASONABLY FORESEEN BY PURCHASER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS AND SERVICES SOLD OR LICENSED HEREUNDER.
Data and Safety Monitoring
With Purchaser’s express and written consent, Seller may monitor and track the use of technical data and related information to facilitate the provision of product development, software updates, product support and other services.
Changes to Software
Seller reserves the right to make changes to its software as progress in engineering and technology permits.
Ownership and License
Unless otherwise governed by the terms and conditions of a separate End User License Agreement or other Agreement to Purchase, GVE Global Vision Inc. shall remain the sole and exclusive owner over of all Deliverables and Licensed Products.
This Agreement may be terminated at any time:
by Seller, effective on written notice to Purchaser, if Purchaser fails to pay any amount when due under this Agreement, in accordance with the payment terms herein;
by either Party, effective on written notice to the other Party, if the other Party materially breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured for THIRTY (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; and
by Seller, effective immediately, if the Purchaser: (i) is dissolved, liquidated or wound-up or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay its debts as they become due; (iii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any federal or foreign bankruptcy or insolvency Law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for, or consents to, the appointment of a trustee, receiver, receiver-manager or custodian for all or a substantial part of its property.
No third parties, consultants, sales representatives or competitors may view, utilize or re-purchase the equipment at any time without the express written consent of Seller.
The Purchaser may not assign its right or delegate its performance under this Agreement, and any attempted assignment or delegation without such consent will be void.
Governing Law and Forum
All matters arising out of or relating to this agreement are governed by and construed in accordance with the laws of the Province of Quebec and the federal laws of Canada applicable therein. Any legal suit, action, litigation or proceeding of any kind whatsoever in any way arising out of, from or relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached to this Agreement, and all contemplated transactions, shall be instituted in the courts of the Province of Quebec and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation or proceeding.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Headings are inserted for the convenience only and are not to be considered when interpreting this Agreement. Words in the singular mean and include the plural and vice versa. Words in the masculine mean and include the feminine and vice versa. Any notice to be given under the Purchase Order will be in writing and addressed to the party at the address stated in the front of the Purchase Order.
It is the express wish of the Parties that this Agreement and all related documents, including notices and other communications, be drawn up in the English language only. Il est de la volonté expresse des Parties à cette entente que cette convention et tous les documents s’y rattachant, y compris les avis et toutes autres communications, soient rédigés et signés en anglais seulement.