The accompanying End User License Agreement 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, and any future terms and conditions proposed by the Purchaser.
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 4 to 6 weeks after the receipt of Purchaser’s Purchase Order. Seller shall not be liable for any delays, loss or damage in transit.
Unless otherwise agreed to in writing, all deliveries will be “Free on Board” (FOB), to the Ship To address indicated on the Purchase Order using Seller’s standard methods for packaging and shipping. Purchaser shall be responsible for all loading costs and provide equipment and labour reasonably suited for receipt of 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 if necessary, (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 set forth in Seller’s quote and restated in the Purchase Order (the “Price”). To the extent previously discussed and agreed upon in writing, 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 that was not included in the original Purchase Order.
Seller shall issue an invoice to Purchaser within ten (10) days of receiving a Purchase Order.
For Hardware only invoices: Purchaser shall pay all properly invoiced amounts due to Seller within thirty (30) days after Purchaser’s receipt of such invoice;
For Software only invoices: Purchaser shall pay all properly invoiced amounts due to Seller within thirty (30) days after Purchaser’s receipt of such invoice;
For combined Hardware and Software invoices: Purchaser shall pay fifty percent (50%) of the invoice amount within thirty (30) days of receipt of such invoice and Purchaser shall pay the remaining fifty percent (50%) of the invoice amount upon signing the work order once delivery and installation is complete.
All payments hereunder shall be made in US dollars ($) or Euros (€), at the Purchaser’s option, and made by cheque, wire transfer, or credit card payment, in the last case, subject to a four percent (4%) administrative fee.
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.
Renewals: Ninety (90) days prior to the expiration of the term, Seller shall attempt to make contact with Purchaser to determine whether renewal of services is desired by Purchaser. Should Purchaser require renewal of any services, an invoice will be issued immediately and shall be payable within thirty (30) days of receipt.
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 WILL SELLER OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO ANYONE FOR: (a) ANY: (i) USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SOFTWARE; (ii) LOST REVENUES OR PROFITS; (iii) DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL; (iv) LOSS OR CORRUPTION OF DATA; (v) LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN; (vi) FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION; (vii) FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; (viii) SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; (ix) BREACHES IN SYSTEM SECURITY; OR (b) ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, IN EACH CASE WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES;
THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF THE PURCHASER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR 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.
SELLER OWNS ALL INTELLECTUAL PROPERTY IN THE SUPPLIED SOFTWARE. SELLER PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT PURCHASER ACCEPTS AND COMPLIES WITH THEM. BY SIGNING THIS AGREEMENT, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT PURCHASER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF PURCHASER AND BIND PURCHASER TO ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, SELLER WILL NOT AND DOES NOT LICENCE THE SOFTWARE TO PURCHASER AND YOU MUST NOT ALLOW FOR THE INSTALLATION OF THE SOFTWARE OR DOCUMENTATION. LAWFUL USE OF THE SOFTWARE IS CONDITIONAL UPON PURCHASER’S COMPLIANCE WITH THE TERMS OF THIS AGREEMENT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR PURCHASER’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENCE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT CONCERNING ANY SOFTWARE THAT PURCHASER DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR’S SOFTWARE.
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 or other payment terms agreed to in writing by the Parties;
- 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; or
- 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.
Neither Party shall assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations, without the other Party’s prior written consent, which consent the other Party may give or withhold in its sole discretion. Any purported assignment, delegation or transfer in violation of this clause is 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.