These terms and conditions (the “Terms”) govern the sale to a third party (“Buyer”) of products (“Products”) and the provision to Buyer of services (“Services”) by Hypertec Group companies, including, without limitation, Hypertec Systems, Hypertec USA Inc., Hypertechnologie Ciara Inc. and Ciara Technologies USA and their respective divisions, subsidiaries and affiliates (collectively, “Vendor”). These Terms take precedence over Buyer’s supplemental or conflicting terms and conditions to which notice of objection is hereby given. Neither Vendor’s commencement of performance or delivery shall be deemed or constituted an acceptance of Buyer’s supplemental or conflicting terms and conditions. Unless otherwise agreed to by an authorised representative of Vendor in writing, these Terms apply to direct commercial purchasers and commercial end-users that purchase directly on hypertecdirect.com or hypertecdirect.ca. By using our ecommerce to purchase online, Buyer accepts and is bound to all terms and conditions contained in these Terms. These Terms, together with any related license agreement, service agreement and other terms and conditions between Vendor and Buyer, shall be referred to herein as the “Agreement”.
(b) Unless otherwise agreed to in writing by Vendor, all prices quoted are exclusive of transportation and insurance costs, duties, and all taxes including, but not limited to, federal, state, provincial and local sales, excise, value added and goods and services taxes and any other taxes. Buyer agrees to pay these taxes unless Buyer has provided Vendor with an exemption resale certificate in the appropriate form for the jurisdiction of Buyer’s place of business and any jurisdiction to which Products are to be directly shipped hereunder, or unless the sale is otherwise exempt from these taxes. Buyer agrees to indemnify and hold Vendor harmless for any liability for tax in connection with the sale, as well as the collection or withholding thereof, including penalties and interest thereon. When applicable, transportation and taxes shall appear as separate items on Vendor’s invoice.
(b) All late payments shall be charged interest computed on a daily basis from the due date until paid in full. A late charge of two percent (2%) per month (24% per annum) will be imposed on all past due accounts. Buyer shall be liable for costs of collection, including, without limitation, reasonable legal and attorneys’ fees and court costs, in any action to collect past due amounts.
(c) All freight, insurance and other expenses associated with shipping Products to Buyer are Buyer’s responsibility and shall be payable by Buyer in addition to the purchase price of Products. Vendor shall have the right to purchase shipping insurance on Buyer’s behalf and charge Buyer for such insurance, unless otherwise agreed to in writing by the parties, in accordance with Section 4 hereof.
(d) Vendor reserves the right to establish and/or change credit and payment terms extended to Buyer when, in Vendor’s sole opinion, Buyer’s financial condition or previous payment record warrants such action. Further, on delinquent accounts, Vendor shall not be obligated to continue performance under any agreement with Buyer.
(e) If Vendor believes in good faith that Buyer’s ability to make payments may be impaired or if Buyer shall fail to pay any invoice when due, Vendor may suspend delivery or performance of any order or any remaining balance thereof until such payment is made or cancel any order or any remaining balance thereof, and Buyer shall remain liable to pay for any Products already shipped and Services already performed and for all NCNR and CS Products ordered by Buyer.
(f) To secure Buyer’s payment obligations under the Agreement, Buyer hereby grants to Vendor, and Vendor hereby retains, a purchase money security interest in Products delivered to Vendor and in their accessories, replacements, accessions and in the proceeds therefor, including, without limitation, accounts receivable (the “Collateral”), and for the purposes of Quebec law, Buyer also grants to Vendor a hypothec on the Collateral in the principal amount of the purchase price of the Products payable under the Agreement, plus an amount equal to 20% of such amount, the whole bearing interest at a rate of 25% per annum. In case of default by Buyer in payment obligations hereunder, Vendor may declare all amounts owing hereunder immediately due and payable and may exercise all rights and remedies available to a secured party/holder of a security/hypothec under applicable statute or otherwise, without prejudice to any other remedy of Vendor hereunder, at law or in equity. Buyer agrees, from time to time, to take any act and execute and deliver any document (including, without limitation, financing statements) reasonably requested by Vendor to transfer, create, perfect, preserve, protect and enforce any security interest under this provision and authorizes Vendor to file any documents and take all other steps required to perfect and render the security interest/hypothec opposable to third parties. Until all amounts are paid hereunder, Buyer will keep Products free from any other encumbrance.
(g) Any payment received from Buyer may be applied by Vendor against any obligation owing from Buyer to Vendor, regardless of any statement appearing on or referring to such payment, without discharging Buyer’s liability for any additional amounts owing from Buyer to Vendor, and the acceptance by Vendor of such payment shall not constitute a waiver of Vendor’s right to pursue the collection of any remaining balance.
(h) Vendor is not responsible for pricing, typographical or other errors in any offer, and reserves the right to cancel orders arising from such errors. Buyer agrees that all invoices shall be deemed accurate unless Buyer advises Vendor in writing of a bona fide, material error within fourteen (14) days of the date of such invoice. In the event that Buyer advises Vendor of a material error, (i) payment of any amounts corrected or modified by Vendor in writing shall be due within fourteen (14) days of such correction, and (ii) all other amounts shall be paid by Buyer by the invoice due date. In the event Buyer withholds payment of any invoiced amounts upon an assertion by Buyer that such amounts are erroneous, and Vendor subsequently concludes that such invoiced amounts are accurate, Buyer shall pay interest on such amounts as described above from the due date for such amounts until Vendor’s receipt of those amounts. In no case shall Buyer be entitled to offset, defer or deduct any invoiced amounts that Vendor determines are not erroneous following the notification process set forth above.
(i) all Vendor CIARA-branded Products shall be free from defects in material and workmanship under normal use and service in accordance with their Specifications for a period of ninety (90) days after shipment by Vendor, with “Specifications” meaning Vendor’s published specifications for Products, which Buyer acknowledges having received, as revised from time to time; provided, however, that THIS WARRANTY EXPRESSLY EXCLUDES ALL SOFTWARE APPLICATIONS OR PROGRAMS;
(ii) as regards all Vendor non-CIARA-branded Products, Vendor will transfer to Buyer all transferable warranties or indemnities, if any, that the original equipment manufacturer (“OEM”) or the third party vendor/service provider provides to Vendor. VENDOR SHALL HAVE NO LIABILITY TOWARDS BUYER BEYOND TRANSFERRING SUCH WARRANTIES OR INDEMNITIES, TO THE EXTENT THAT THEY ARE TRANSFERABLE. IT IS BUYER’S OBLIGATION TO REQUEST COPIES OF ANY APPLICABLE OEM OR THIRD PARTY VENDOR/SERVICE PROVIDER WARRANTIES AND BUYER SHALL BE DEEMED TO HAVE ACCEPTED SUCH WARRANTIES UPON THE ACCEPTANCE OF PRODUCTS AND/OR SERVICES; and
(iii) all Services performed by or on behalf of Vendor shall be performed in a diligent and commercially reasonable manner in accordance with the degree of care, skill, efficiency and diligence that a reasonably prudent person would employ in similar circumstances.
(b) Vendor’s exclusive obligations with respect to any Products or Services for claims under the limited warranty provided under Sections 6(a)(i) and 6(a)(iii) hereof shall be, at Vendor’s option, to repair or replace the Product, if it is determined to be defective, to re-perform the Service, or to issue credit to Buyer for the purchase price paid for the Product or Service. Replacement Products shall be warranted as set forth in Section 6(a) hereof. Any Products repaired or serviced by Vendor shall be warranted as provided in Section 6(a) hereof for the remainder of Vendor’s warranty period or the OEM or the third party vendor/service provider warranty period, as the case may be.
(c) No warranty shall apply to any Products or components that have been subjected to misuse, mishandling or improper testing or assembly, that have been repaired or altered other than by Vendor, that have been operated contrary to their Specifications or current instructions relating to their installation, maintenance or operation, that have been operated contrary to industry standards, that have been subjected to adverse external conditions such as, but not limited to, operating in environments with temperatures no more than 26C/79F and no less than 15C/50F and humidity levels no more that 50% and no less than 20%, power failures, power surges or force majeure, or that have been used in conjunction with any item not furnished or manufactured by Vendor (other than as specifically instructed by Vendor).
(d) No warranty shall apply to accessories, supply items and consumables or structural parts (for example, frames and covers). Unless specified otherwise, batteries are considered a consumable item and are not warranted.
(e) Vendor gives no warranty whatsoever, and disclaims and shall have no liability, for any trademark, trade dress, trade secret, copyright, design or patent infringement, or the infringement of any other intellectual property right of any third party, which may occur as a result of the sale of Products to Buyer or the use of Products by Buyer, except to the extent otherwise expressly agreed to by Vendor in writing; provided, however, that Buyer may be entitled to seek remedy or recourse against the relevant OEM or third party vendor/service provider, subject to the limited warranty, if any, of the OEM or the third party vendor/service provider in this regard. Notwithstanding the foregoing, there shall be no remedy or recourse by Buyer whatsoever to the extent the infringement arises from or is otherwise based upon (i) compliance with the particular requirements of Buyer, (ii) modifications or alterations of the Products or components other than by Vendor, the OEM or the third party vendor/service provider, or (iii) the combination of the Products with other items not furnished or manufactured by Vendor or the OEM or the third party vendor/service provider.
(f) THE FOREGOING WARRANTIES ARE THE SOLE WARRANTIES GIVEN BY VENDOR IN CONNECTION WITH PRODUCTS AND SERVICES, AND VENDOR DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, LEGAL, STATUTORY OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND WARRANTIES AGAINST LATENT DEFECTS.
(g) BUYER SHALL NOT IN ANY EVENT BE ENTITLED TO, AND VENDOR SHALL NOT BE LIABLE FOR: INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE OR ANY LOSS OF REVENUE, INCOME, PROFIT OR SAVINGS; LOST OR CORRUPTED DATA OR SOFTWARE; LOSS OF USE OF A SYSTEM OR NETWORK; LOSS OF BUSINESS OPPORTUNITY; BUSINESS INTERRUPTION OR DOWNTIME; PRODUCTS OR THIRD-PARTY PRODUCTS NOT BEING AVAILABLE FOR USE; REMOVAL AND/OR REINSTALLATION COSTS; REPROCUREMENT COSTS; PROMOTIONAL OR MANUFACTURING EXPENSES; OVERHEAD; INJURY TO REPUTATION OR LOSS OF CUSTOMERS, IN EACH CASE EVEN IF VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BUYER’S RECOVERY FROM VENDOR FOR ANY AND ALL CLAIMS IN ANY 12-MONTH PERIOD SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY THE BUYER DURING THE PRIOR 12 MONTHS FOR PRODUCTS OR SERVICES GIVING RISE TO SUCH CLAIM IRRESPECTIVE OF THE NATURE OF THE CLAIM, WHETHER IN CONTRACT, CIVIL LIABILITY, TORT, DELICT, WARRANTY, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE. VENDOR SHALL NOT BE LIABLE FOR, AND BUYER SHALL INDEMNIFY, DEFEND AND HOLD VENDOR HARMLESS FROM, ANY CLAIMS BASED ON VENDOR’S COMPLIANCE WITH BUYER’S DESIGNS, SPECIFICATIONS OR INSTRUCTIONS, OR MODIFICATION OF ANY PRODUCTS BY PARTIES OTHER THAN VENDOR, OR USE IN COMBINATION WITH OTHER PRODUCTS. IF, FOR ANY REASON, THE FOREGOING LIMITATIONS ARE FOUND BY AN ARBITRATION PANEL OR COURT OF COMPETENT JURISDICTION TO BE INVALID OR INAPPLICABLE UNDER ANY APPLICABLE LAW, BUYER AGREES THAT VENDOR’S TOTAL LIABILITY FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION OF ANY KIND OR NATURE SHALL BE LIMITED TO ACTUAL DAMAGES WITHOUT REGARD TO ANY PUNITIVE OR EXEMPLARY DAMAGES PROVIDED BY ANY SUCH APPLICABLE LAW.
(h) Buyer acknowledges that this Agreement was entered into at arm’s length and that Buyer was not fraudulently induced to enter into this Agreement, in whole or any part, and Buyer explicitly disclaims and waives any claim with respect thereto.