Terms and Conditions of Sale

THE FOLLOWING ARE THE TERMS AND CONDITIONS APPLICABLE TO ALL ORDERS (“Orders”) FOR THE SALE OF PRODUCTS (“Products”), SOFTWARE (“Software”) OR SERVICES (“Services”) BY THE SELLER (AS HEREINAFTER DEFINED) TO A BUYER (AS HEREINAFTER DEFINED). ANY ACCEPTANCE OF ANY ORDER OF BUYER IS CONDITIONED UPON THESE TERMS AND CONDITIONS. ANY ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS PROPOSED BY A BUYER ARE EXCLUDED AND OBJECTED TO AND SHALL NOT BIND SELLER UNLESS SPECIFICALLY STATED IN WRITING BY SELLER.

IV.  INSTALLATION

A.  Unless otherwise specified in the Order, the Buyer shall be responsible for installation of the Products, including, without limitation, the preparation of its premises, the uncrating of the Products and their set up for operation. In all cases, Buyer will be responsible for compliance of its facilities with applicable building, electrical and similar standards or codes.

B.  If installation of Product and Software is specified in the Order as Seller’s responsibility, it shall be Buyer’s responsibility to: (i) provide Seller with final configurations for such installation in a timely manner and in any event not less than 30 days prior to the date of such installation; (ii) provide Buyer personnel and cooperate with Seller with respect to installation of Product and Software on a timely basis; and (iii) provide a suitable site to Seller’s specifications for installation with all required ancillary equipment and services such as cabling, rigging, air conditioning, compressed air, power, power transformers, etc. Unless otherwise agreed in writing, installation of Software on Buyer-owned equipment shall be the sole responsibility of Buyer;

C.  Where installation services are specified in the Order as Seller’s responsibility, such services will be scheduled with the Buyer within 60 days of receipt of the goods at the Buyer facility. Where the Buyer facility is not ready for the services to be provided, the system will deemed to be accepted by the Buyer and any invoicing contingent on the installation services will be due immediately.

D.  When Buyer cancels a confirmed installation visit within two weeks of scheduled start date, Buyer will be invoiced for travel expenses incurred that are not recoverable by Seller.

E.  Following completion of any Seller installation, Seller shall reasonably demonstrate to Buyer that the System is electrically and mechanically installed and that it can successfully perform Seller’s standard tests. At that time the System shall be deemed accepted by Buyer for all purposes. If Buyer does not order Seller installation services, then Buyer acceptance shall be deemed to occur at the time of completion by Seller of its final standard factory test.

F.  On site operator training hours may be included as a part of installation services by Seller of Products. Operator training for Software and other products is available at the location and for the durations specified as part of the Order and must be utilized by Buyer within six (6) months of delivery.

V.  EXPORT CONTROLS; FCPA; ANTI-BOYCOTT

A.  Buyer shall not make any disposition of the Products, by way of transshipment, re-export, diversion or otherwise, except as applicable U.S. export laws and regulations may expressly permit, and other than in and to the ultimate country of destination specified on Order(s) or declared as the country of ultimate destination on Seller's invoices or in the End Use Statement that Buyer supplies Seller. Seller shall not be named as shipper or exporter of record or U.S. principal party-in-interest (USPPI) unless specifically agreed to in writing by Seller in which case, Buyer shall provide Seller with a copy of the documents filed by Buyer for Export clearance purposes. At Seller’s request, Buyer shall supply end-use and end-user information to determine export license applicability. Failure of Buyer to comply with this section shall constitute a material default allowing Seller to cancel related Order(s) without liability.

B.  Buyer warrants that it shall not violate or cause the Seller to violate the U.S. Foreign Corrupt Practices Act of 1977(FCPA), as amended, the United Kingdom Bribery Act (UKBA) of 2010, as amended, or their respective implementing regulations in connection with Buyer’s sale or distribution of the Products and/or Services, and that Buyer does not know or have reason to believe that any consultant, agent, representative or other person retained by Buyer in connection with the sale and/or distribution of Products/Services has violated, nor caused Seller to violate the FPCA and/or the UKBA. Where Buyer learns of or has reason to know of any violation of FCPA and/or or UKBA in connection with the sale or distribution of Products/Services, Buyer shall immediately advise Seller.

C.  Buyer further warrants that Buyer shall not violate or cause Seller to violate the U.S. Antiboycott Provisions of the U.S. Export Administration Regulations issued pursuant to the U.S. Export Administration Act of 1979, as amended, in connection with Buyer’s purchase of Products/Services and that Buyer shall not request or require Seller to make statements or certifications against countries that are not subject to boycott by the U.S.

D.  Buyer hereby acknowledges that Seller transacts its business on a worldwide basis and is required to comply with the export control, anti-corruption and ethical business legislation and rules in several countries. As a result, Buyer agrees, in addition to the above, to comply with any such rules in any country, and accepts that Buyer alone shall be responsible for obtaining the required information as to the applicable rules in any particular country.

VI.  WARRANTIES

A.  Seller warrants that Products manufactured by Seller, when delivered, for a period of 1 year from delivery shall be free from defects in material/workmanship. Seller warrants that Services shall be performed in accordance with generally accepted industry practice and as detailed in the Order for a period of 90 days from performance. Seller's obligations under this warranty shall be limited exclusively to repairing or replacing, at Seller's option, any part of Products which, if properly installed, used and maintained, proved to have been defective in material or workmanship within 1 year from the date of delivery, or re-performing the Services. Seller makes no warranty, express or implied, that the operations of the software or firmware shall be uninterrupted or error-free, or that functions contained therein shall meet or satisfy the Buyer’s intended use/requirements. Buyer shall notify Seller of any defect in the quality or condition of Products (including software/firmware) or Services within 7 days of the date of delivery or performance.

B.  Seller's warranty obligations shall not apply to Products which (1) have been altered or repaired by someone other than Seller, or (2) have been subjected to misuse, neglect, or improper use or application, or (3) are normally consumed in operation, or (4) have a normal life inherently shorter than the warranty period stated therein.

C.  Third party products are excluded from Seller’s warranty.

D.  No Products may be returned unless authorized in advance by Seller, and then only upon such conditions to which Seller may agree. Buyer must obtain a Return Material Authorization (RMA) number from Seller prior to any return shipment, and such RMA number must appear on the shipping label and packing slip. Buyer shall be responsible for returned Products until such time as Seller receives the same at its facility, and for all charges for packing, inspection, shipping, transportation or insurance associated with returned Products.

E.  If the Buyer requires on-site support service or repair, Buyer agrees that it will assume the cost of Seller’s on-site labor charge plus travel and accommodation as per Seller’s then effective rate.

F.  This section VI sets forth the exclusive remedies and obligations for claims based upon defects in or nonconformity of Products/Services, whether the claim is in contract, warranty, tort (including negligence of any degree or strict liability) or otherwise.

G.  Seller expressly limits its liability and warranty obligations for any variation in the stated performance specifications of its Products in a controlled environment and on a specific product performance test procedure as referred-to on calibration certificate as opposed to their actual performance once installed in their working environment.

THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER ORAL, WRITTEN, EXPRESS, IMPLIED OR STATUTORY. NO IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE SHALL APPLY.

VII. PATENTS/INDEMNITY

If Buyer receives a claim that Products or Software, thereof manufactured by Seller infringes a patent, Buyer shall notify Seller promptly in writing and give Seller information, assistance and exclusive authority to evaluate, defend and settle such claim. Where Buyer has furnished specifications/designs for the manufacture of the allegedly- infringing Products, Buyer shall defend, indemnify and hold harmless Seller against third-party claims for infringement arising out of Seller’s use of such specifications/designs.

VIII. LIMITATION OF LIABILITY

The total liability of Seller on any claim, whether in contract, tort (including negligence of any degree and strict liability) or otherwise arising out of, connected with, or resulting from the manufacture, sale, delivery, resale, repair, replacement or use of any Products/Services, shall not exceed the price allocable to the Products/Services or part thereof which gives rise to the claim. IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT, (INCLUDING NEGLIGENCE OF ANY DEGREE, STRICT LIABILITY OR PATENT INFRINGEMENT) OR OTHERWISE, SHALL SELLER, ITS AFFILIATES, SUBCONTRACTORS, OR SUPPLIERS BE LIABLE FOR ANY LOSS OF PROFIT OR REVENUES, LOSS OF USE OF THE PRODUCTS OR SERVICES, OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE GOODS, FACILITIES, SERVICES OR REPLACEMENT POWER, DOWNTIME COSTS OR CLAIMS OF BUYER'SCUSTOMERSFOR DAMAGES OR FOR ANY SPECIAL, PROXIMATE, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR EXEMPLARY DAMAGES. If Buyer transfers title to, or leases Products sold hereunder to, or otherwise permits or suffers use by, any third party, Buyer shall obtain from such third party a provision affording Seller and its subcontractors/suppliers the protection of the preceding sentence. Any action against Seller must be brought within 18 months after cause of action accrues.

IX. EXCUSABLE DELAYS

A.  Seller shall not be liable for delays in delivery or failure to perform due directly or indirectly to causes beyond Seller's reasonable control including but not limited to: acts of God; war; terrorism; civil commotion; riots; embargoes; government regulations, export license denials, orders, instructions or priorities; port congestion; acts of or failure to act on the part of Buyer or its agents/employees; fires; floods; sabotage; nuclear incidents; earthquakes; storms; epidemics; strikes; lockouts or other labor difficulties; shortages of or inability to timely obtain proper labor, materials, components, shipping space or transportation, fuel, supplies or power at current prices; or due to limitations imposed by the extent of availability of Seller’s normal manufacturing facilities.

B.  If a delay excused per the above extends for more than 90 days and the parties have not agreed upon a revised basis for continuing providing Products/Services at the end of the delay, including adjustment of the price, then either party (except where delay is caused by Buyer, in which event only Seller) upon thirty (30) days’ notice may terminate the Order with respect to the unexecuted portion of the Products/Services, whereupon Buyer shall promptly pay Seller its reasonable termination charges upon submission of Seller's invoices thereof.

X.  ADDITIONAL LIMITATION-EQUIPMENTS, SOFTWARE AND SERVICES FOR CUSTOM INTEGRATIONS

In the event Seller supplies Product, Software and/or Services to Buyer, or its third party source, as components of a customized solution, Seller’s responsibility is limited only to the components supplied by Seller.

The Buyer specifically agrees that Seller will not have responsibility for, or incur any liability whatsoever, the integration of the Products, Software and Services sold with any other components provided by third party sources nor for the development or implementation of the complete inspection solution provided to the end-user, whether developed by the Buyer.

Products, Software and Services delivered by Seller to a third party for integration purposes must be formally accepted as compliant for such purposes by the third party within five (5) days of delivery of the Products, Software and Services. Any deficiencies or unsuitability for the intended integration must be notified in writing to Seller within the above five (5) day period. Should the third party fail to provide Seller with such notice within the stated five (5) day period, the Products, Software and Services will then be deemed to have been accepted by the third party.

The Buyer hereby accepts the above disclaimer and confirms that the end-user will be informed in writing of these conditions.

XI. SOFTWARE/TECHNICAL/PROPRIETARY INFORMATION

A.  Buyer shall not acquire any rights to any software which may be delivered with Products, except as granted in Seller’s standard software license. Any software license granted in connection with Products shall be an interim license, which may be withdrawn, pending payment for Products in full.

B.  The purchase of Products shall not include any right to supply of technical information such as drawings or specifications.

C.  Proprietary information, including drawings, documents, technical data, reports, software, designs, inventions and other technical information supplied by Seller in connection herewith (hereinafter called "Data"), shall remain Seller's sole property and shall be held in confidence by Buyer. Data shall not be reproduced, used or disclosed to others by Buyer without Seller’s prior written consent. Upon completion of Order, Buyer shall promptly return all Data to Seller together with all copies or reprints thereof then in Buyer's possession or control, and Buyer shall thereafter make no future use, either directly or indirectly, of any Data or any information derived therefrom without Seller's prior written consent. The foregoing shall in no way obligate Seller to provide or supply Data.

D.  The Software is a mathematical analysis tool intended to assist Buyer in its mechanical integrity analysis. Buyer hereby recognizes that the use of the software and the interpretation of the computed data require considerable skills and judgment. The Software and Product are not intended to be, nor are they, a substitute to a rigorous and comprehensive mechanical integrity analysis done by a qualified engineer.

 

XII. LICENSE

Some of Seller’s Products require installation, use or connection to Software including custom configurations, Macros or other. Buyer may be required to execute separate license agreements and the terms and conditions of those licenses shall apply.

Subject to these Terms and Conditions, Seller grants Buyer a non-exclusive, non-transferable, non-sublicensable license (“License”) to use the copy of the Software contained in the Products for Buyer’s internal business purposes only. Termination of this License for any reason shall not terminate the other terms of these Terms and Conditions This License authorizes Buyer to do the following:

A.  Install the Software on computers within Buyer’s organization for use and execution solely for the purpose of acquiring and post-processing data associated with the operation of the Products.

Buyer is NOT authorized under this License to, and agrees NOT to:

B.  Use, copy or transfer non-authorized copies of the Software or any associated documentation;

C.  Disassemble, decompile or otherwise reverse engineer the Products or the Software in order to discover the source code or related proprietary information and trade secrets, or have a third party do so, except to the extent expressly permitted by applicable law notwithstanding this limitation;

D.  Rent, lease, sublicense, distribute, transfer, modify or timeshare the Software, except as provided in the Order;

E.  Use the Software to enable and/or insert viruses, Trojan horses, worms, time bombs, cancelbots, or other code intended to damage, detrimentally interfere with, surreptitiously intercept or misappropriate any system or data; or

F.  Interfere with the operability of any Seller programs or third-party programs that work with Seller programs in conjunction with the Products.

XIII. GENERAL

A.  The rights and obligations of the Buyer and Seller hereunder shall be governed in all respects by the law applicable in the Province of Ontario, Canada. The exclusive forum for adjudication of any disputes shall be the federal or provincial courts sitting in the judicial district of Waterloo, Canada, and Buyer and Seller both hereby consent to personal jurisdiction and venue in such courts in any proceeding. The United Nations Convention on the International Sale of Goods shall not apply.

B.  These Terms and Conditions together with any other terms specifically agreed to in writing by Seller constitute the entire agreement between Buyer and Seller and supersede any prior or contemporaneous representations, agreements, proposals, warranties, or understandings, oral or written, express or implied. No waiver, modification, amendment, rescission or other change to these Terms and Conditions shall be binding unless specifically agreed to in writing by an authorized representative of Seller.

C.  The invalidity of any part hereof shall not affect the validity of the remainder. The failure of Seller to assert any right at any time hereunder shall not prevent Seller's subsequent assertion of the same or different rights.

D.  Buyer may not assign this contract without the prior written approval of the Seller.

E.  Buyer may not use Seller’s name or any Seller trademarks in any manner, without the written consent of Seller.

F.  The English language version of these Terms and Conditions shall govern and control any translations of the Terms and Conditions into any other language.

XIV.  PROHIBITION FOR HAZARDOUS USE

Products sold hereunder are not intended for application in, and shall not be used by Buyer in construction or application of a nuclear installation or in connection with use or handling of nuclear material or for any hazardous activity or critical application, where failure of a single component could cause substantial harm to persons or property, unless Products have been specifically approved for such activity or application. Seller disclaims all liability for loss or damage resulting from such unauthorized use and Buyer shall defend, hold harmless and indemnify Seller against any such liability, whether arising under breach of contract, warranty, tort (regardless of the degree of fault or negligence), strict liability or otherwise.

Where Seller approves the application of the Products in a nuclear facility in writing, the Buyer shall, before such use or provision, arrange for insurance or governmental indemnity protecting the Seller against liability and hereby releases and agrees to indemnify the Seller and its suppliers for any nuclear damage, including loss of use, in any manner arising out of a nuclear incident, whether alleged to be due, in whole or in part to the negligence or otherwise of the Seller or its suppliers.

XV.  STATUTORY REQUIREMENTS

Seller reserves the right to make any changes in the general specifications of the Products which are required for the Products to conform to any statutory requirement.

XVI.  GOVERNMENT CONTRACTS

Only Federal Acquisition Regulation (“FAR”) supplement clauses expressly accepted in writing by Seller shall be included or incorporated by reference herein. Seller shall not be bound by and makes no representation of compliance with any FAR or FAR supplement clauses that Seller shall not have expressly accepted in writing.