Buyer’s acceptance of these terms and conditions shall be indicated by any of the following, whichever first occurs:
(a) Buyer’s making of an offer to purchase Product from TECHNOSPECS TECHNOLOGIES INC; (b) Buyer’s written acknowledgment hereof; (c) Buyer’s acceptance of any shipment of any part of the items specified for delivery (the “Products”); or (d) any other act or expression of acceptance by Buyer. TECHNOSPECS TECHNOLOGIES INC’s acceptance is expressly limited to the terms and conditions hereof in their entirety without addition, modification or exception, and any term, condition or proposals hereafter submitted by Buyer (whether oral or in writing) which is inconsistent with or in addition to the terms and conditions set forth hereon is objected to and is hereby rejected by TECHNOSPECS TECHNOLOGIES INC. TECHNOSPECS TECHNOLOGIES INC’s silence or failure to respond to any such subsequent or different term, condition or proposal shall not be deemed to be TECHNOSPECS TECHNOLOGIES INC’s acceptance or approval thereof.
Conditions of Salei. Prices. The Purchaser agrees to pay Technospecs Technologies Inc the amount shown on the invoice.
ii. Taxes. Prices charged or quoted do not include GST, provincial sales tax, customs duties or any other charges or levy charged or imposed on merchandise by any federal, provincial or municipal authority (collectively “taxes”).
Federal, Provincial or Municipal taxes where applicable, will be added to the prices quoted where exemption documentation is not provided by the Purchaser.
i. Shipping Policy-F.O.B. Shipping Point. Shipping terms are F.O.B. Technospecs Technologies Inc’s warehouse. Technospecs Technologies Inc reserves the right to select the method of transportation and the routing of shipment. A Purchase requiring shipment by a method or routing other than that selected by Technospecs Technologies Inc will be billed the increase in transportation costs.
ii. Delivery. Delivery is subject to Technospecs Technologies Inc’s receipt of all necessary information and documentation from Purchaser including, all import certificates, exemption and and/or resale certificates, licenses and other documents as may be required form Purchaser for export of the products. Unless otherwise expressly agreed in writing, delivery of the product will be made F.O.B. Technospecs Technologies Inc’s warehouse and Technospecs Technologies Inc reserves the right to make delivery in installment unless otherwise specified at the time of order.
iii. Loss or Damage on Shipments. All risk of loss or damage with respect to products shall pass to Purchaser upon delivery by Technospecs Technologies Inc to the carrier or Purchaser’s representative at Technospecs Technologies Inc’s warehouse. Technospecs Technologies Inc shall not be responsible for any loss, damage or pilferage sustained in transit. Claims of such character or claims in respect to shortages or rejection should be made promptly by the Purchaser to the carrier and Technospecs Technologies Inc in writing with sufficient detail of a claimed occurrence within 48 hours after delivery. Valuation of shipment will be at carrier’s standard rates unless otherwise specified by the Purchaser at additional cost.
iv. Delays. Technospecs Technologies Inc shall not be liable for any shipment delays beyond the reasonable control of Technospecs Technologies Inc which affect Technospecs Technologies Inc or any of Technospecs Technologies Inc’s suppliers including, but not limited to, delays caused by unavailability of or shortage of products from Technospecs Technologies Inc’s suppliers, natural disasters, acts of war, acts of omission of Purchaser, fire, strike, riot or government interference, unavailability or shortage of materials, labour, fuel, or power through normal commercial channels at customary and reasonable rates; failure or destruction of plant or equipment arising from any cause whatsoever, or transportation failures.
v. Title. Delivery of goods to a carrier shall constitute delivery to the Purchaser and, regardless of freight payment and method, all risk of loss or damage in transit shall pass to the Purchaser at that time. Title to goods shall pass from Technospecs Technologies Inc to the Purchaser when Technospecs Technologies Inc has been paid in full and purchaser hereby grants to Technospecs Technologies Inc a security interest in the goods until payment in full. All goods shall continue to be personally notwithstanding their mode of attachment to realty to other property. If default is made in any of the payments herein Technospecs Technologies Inc may retain any partial payments which have been made, as liquidated damages and Technospecs Technologies Inc shall be entitled to the immediate possession of the goods and shall be free to enter the premises where the goods may be located, and remove them as Technospecs Technologies Inc’s property, without prejudice to Technospecs Technologies Inc’s right to recover any further expenses or damages Technospecs Technologies Inc may suffer by reason of such non-payment.
a) Buyer acknowledges, represents and warrants that it currently complies with, and at all times shall comply with, and shall not act to contravene, relevant laws, codes, and regulations applicable to the purchase and sale of Products under these terms and conditions. Buyer further acknowledges and agrees that the goods, software, and technology subject to these terms and conditions are subject to the export control laws and regulations of the United States, including, but not limited to, the Export Administration Regulations (“EAR”), and sanctions regimes of the U.S. Department of Treasury, Office of Foreign Asset Controls. Buyer shall not, without prior U.S. government authorization, export, reexport, or transfer any goods, software, or technology subject to these terms and conditions, either directly or indirectly, to any country subject to a U.S. trade embargo or to any resident or national of any such country, or to any person or entity listed on the “Entity List” or “Denied Persons List” maintained by the U.S. Department of Commerce or the list of “Specifically Designated Nationals and Blocked Persons” maintained by the U.S. Department of Treasury. In addition, any goods, software or technology subject to these terms and conditions may not be exported, re-exported, or transferred to an end-user engaged in activities related to weapons of mass destruction. Such activities include, but are not necessarily limited to, activities related to: (1) the design, development, production, or use of nuclear materials, nuclear facilities, or nuclear weapons; (2) the design, development, production, or use of missiles or support of missiles projects; and (3) the design, development, production, or use of chemical or biological weapons.
b) Buyer recognizes that some Product sales are limited to a specified territory and shall not sell Products outside that territory. Such sales may constitute copyright or trademark infringement. Products purchased by Buyer may also be subject to additional usage restrictions or authorizations imposed by the Product manufacturer or publisher. Buyer is responsible for ensuring compliance with any such restrictions or authorizations.
Terms of Payment
i. Terms. All prices quoted and all payments shall be in Canadian dollars unless otherwise specified.
All payments are due in accordance with the terms indicated on the Technospecs Technologies Inc invoice. In case partial shipments are made at different times, pro-rated payments shall be made.
The Purchaser agrees that should any payments not be made when due, then interest on such overdue payments shall be paid by the Purchaser at the rate of one and one half (1.5%) percent per month, eighteen (18%) percent per annum until the price, including service charges, has been fully paid but this shall not be construed as obligating Technospecs Technologies Inc to grant any extension of time in the terms of payment.
In the event that any cheque is returned NSF or payment stopped, a service charge of $50.00 will be applied to the account.
If legal action or any proceeding or demand is brought or made by Technospecs Technologies Inc for recovery or possession of Technospecs Technologies Inc Products or for the collection of any purchase price or other sums payable to Technospecs Technologies Inc all expenses, incurred therein, including all solicitor’s fees in respect thereof on a solicitor and client basis.
ii. Credit. Technospecs Technologies Inc reserves the right to reject any orders placed by the Purchaser and refuse to ship any accepted orders on hand or request payment any time the Purchaser’s credit standing becomes impaired of unsatisfactory to Technospecs Technologies Inc.
i. Order Cancellation. An order may be terminated by the Purchaser only upon reimbursement to Technospecs Technologies Inc of expenses already incurred and commitments made by Technospecs Technologies Inc with respect to the order.
ii. Shortages. Technospecs Technologies Inc reserves the right to reject orders placed by the Purchaser or to refuse to ship orders accepted in circumstances of actual or anticipated shortages of any product. Technospecs Technologies Inc reserves the right to allocate available products among its customers in such circumstances and in such manner as Technospecs Technologies Inc may determine.
i. Limitation of Liability. Notwithstanding any other provision herein or any applicable statutory provisions, Technospecs Technologies Inc shall not be liable to the purchaser or to any end user for special or consequential damages or damages for loss of use arising directly or indirectly from any breach of contract, fundamental of otherwise including, without limitation, loss of computer time, loss of profit, loss of revenues. Failure to realize expected savings or other commercial or economic losses of any kind and in no event shall the liability of Technospecs Technologies Inc exceed the unit price of the defective product or of the product subject to late delivery.
ii. Warranty. The products sold by Technospecs Technologies Inc are not manufactured by Technospecs Technologies Inc. Technospecs Technologies Inc will extend to the Purchaser the same warranty protection it receives from the manufacturer. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS EXPRESS IMPLIED OR STATUTORY AND TECHNOSPECS TECHNOLOGIES INC EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILTIY OR FITNESS FOR A PARTICULAR PURPOSE, THIS WARRANTY EXCLUDES CERTIFICATION OR THE LIKE FOR EQUIPMENT PERFORMANCE, USE OF DESIGN WITH RESPECT TO ANY EQUIPMENT PERFORMANCE, USE OF DESIGN WITH RESPECT TO ANY STANDARD, REGULATION OR THE LIKE (UNLESS AND TO THE EXTENT THE PURCHASER). TECHNOSPECS TECHNOLOGIES INC SPECIFICALLY DOES NOT WARRANT THAT THE PRODUCTS SOLD BY TECHNOSPECS TECHNOLOGIES INC WILL MEET ALL OF THE PURCHASER’S AND/OR END USER’S REQUIREMENTS OR WILL OPERATE IN ALL OF THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY THE PURCHASER AND/OR THE END USER OF THAT THE USE OF THE PRODUCTS SOLD BY TECHNOSPECS TECHNOLOGIES INC WILL BE ERROR FREE OR FREE FROM DEFECTS.
iii. Force Majeure. Technospecs Technologies Inc shall not be liable for loss or damages or delay due to causes beyond its control including but not limited to acts of God, acts of the Purchaser, fire, strikes, lockouts or other labour disruptions, flood, epidemics, civil or military restrictions, embargoes, car shortages, wrecks, delays in transportation or inability to obtain necessary labour. In the event of any such delay the delivery shall be extended for a period of time equal to the time lost by reason of the delay.
iv. Severability. Invalidity of any provision of this agreement shall not affect the validity of any other provision hereof and any such invalid provision shall be severed herefrom.
v. Non-waiver. No failure by Technospecs Technologies Inc to exercise any right accruing to it under any contract of sales entered into with the Purchase shall operate as a waiver thereof nor preclude the exercise of any other right or privilege by Technospecs Technologies Inc.
vi. Entire Agreement. There are not other terms of conditions applicable to the purchase and sale of Technospecs Technologies Inc products other than those contained in the Sales Policy.
vii. Governing Law. All contracts for the sale of Technospecs Technologies Inc products shall be governed and construed according to the laws of the Province of British Columbia and the parties irrevocably attorn to the jurisdiction of the courts of British Columbia.
viii. Notice. Any notice required or contemplated hereunder shall be in writing and shall be delivered personally or sent by facsimile or other form of telecommunication or by prepaid mail. Any notice sent by facsimile or other form of telecommunication shall be deemed to have been received when transmitted and any notice sent by mail shall be deemed to have been received on the third business day following mailing.
Technospecs Technologies Inc may accept returned merchandise in accordance with the policies and procedures set out on the Technospecs Technologies Inc Web site only when approved in advance and when bearing a Returned Merchandise Authorization (RMA) number. The RMA number is obtained from Technospecs Technologies Inc at the time of approval of the return. Such returns must be shipped transportation prepaid. Returned merchandise must be currently listed in original, sealed, factory cartons unless otherwise agreed to prior to return by Technospecs Technologies Inc. Credit will be issued at current replacement price or purchased price at Technospecs Technologies Inc’s option and may be subject to a restocking charge. Return of Products purchased hereunder, whether for stock balancing purposes or because such Products are claimed to be defective, shall be governed by TECHNOSPECS TECHNOLOGIES INC’s Product Return policies as set forth in TECHNOSPECS TECHNOLOGIES INC’s Web site thereto in effect on the date of the invoice, or as otherwise provided by TECHNOSPECS TECHNOLOGIES INC to Buyer in writing. TECHNOSPECS TECHNOLOGIES INC reserves the right to modify or eliminate such policies at any time. Although TECHNOSPECS TECHNOLOGIES INC’s policies may permit Buyer to return Products claimed to be defective under certain circumstances, TECHNOSPECS TECHNOLOGIES INC makes no representations or warranties of any kind with respect to the Products. TECHNOSPECS TECHNOLOGIES INC HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TECHNOSPECS TECHNOLOGIES INC WILL NOT BE LIABLE FOR ANY DAMAGE, LOSS, COST OR EXPENSE FOR BREACH OF WARRANTY. THE RIGHT TO RETURN DEFECTIVE PRODUCTS, AS PREVIOUSLY DESCRIBED, SHALL CONSTITUTE TECHNOSPECS TECHNOLOGIES INC’S SOLE LIABILITY AND BUYER’S EXCLUSIVE REMEDY IN CONNECTION WITH ANY CLAIM OF ANY KIND RELATING TO THE QUALITY, CONDITION OR PERFORMANCE OF ANY PRODUCT, WHETHER SUCH CLAIM IS BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY OR CONTRIBUTION, THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE. In the event TECHNOSPECS TECHNOLOGIES INC issues a return authorization to Buyer allowing Buyer to return Product to TECHNOSPECS TECHNOLOGIES INC, Buyer will deliver the Product to TECHNOSPECS TECHNOLOGIES INC’s address in Canada, if so required by TECHNOSPECS TECHNOLOGIES INC, and Buyer shall bear all applicable federal, provincial, municipal and other government taxes (such as sales, use and similar taxes) as well as import or customs duties, license fees and similar charges, however designated or levied on any replacement Product to be shipped by TECHNOSPECS TECHNOLOGIES INC to Buyer.
LIMITATION OF LIABILITY
TECHNOSPECS TECHNOLOGIES INC SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES OR FOR ANY REASON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE AGREEMENT TO SELL PRODUCT TO BUYER OR THE PRODUCT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, LOSS OF USE, LOST DATA OR FOR ANY DAMAGES OR SUMS PAID BY BUYER TO THIRD PARTIES, EVEN IF TECHNOSPECS TECHNOLOGIES INC HAS BEEN ADVISED OF POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY WHETHER ANY CLAIM IS BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY OR CONTRIBUTION, THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE.
These terms and conditions shall constitute the final, complete and exclusive agreement of the parties with respect to all sales by TECHNOSPECS TECHNOLOGIES INC to Buyer and shall supersede all prior offers, negotiations, understanding and agreements. Unless Buyer and TECHNOSPECS TECHNOLOGIES INC have executed a master contract which specifically supersedes and replaces the terms and conditions herein, it is expressly agreed that no prior or contemporaneous agreement or understanding, whether written or oral, shall contradict, modify, supplement or explain the terms and conditions contained herein. No additional or different terms or conditions, whether material or immaterial, shall become a part of any sales agreement unless expressly accepted in writing by an authorized officer of TECHNOSPECS TECHNOLOGIES INC in Canada. Any waiver by TECHNOSPECS TECHNOLOGIES INC of one or more of these terms and conditions or any defaults hereunder shall not constitute a waiver of the remaining terms and conditions or of any future defaults hereunder. No failure or delay by either party in exercising or enforcing any right hereunder shall operate as a waiver thereof or preclude any other exercise or enforcement of rights hereunder. Any provision of these terms and conditions that is prohibited or unenforceable under the laws of the Province of British Columbia shall be ineffective to the extent of such prohibition or unenforceability, without impairing or invalidating the remaining provisions of these terms and conditions. All sales agreements shall be deemed made in, and shall be governed by, the laws of the Province of British Columbia. The venue for any disputes arising out of any sales agreement shall be, at TECHNOSPECS TECHNOLOGIES INC’s sole and exclusive option, Burnaby, British Columbia, or the courts with proper jurisdiction at Buyer’s location. For Buyers situated in Alberta, to the extent permitted by law, Buyer hereby waives its rights, benefits or protection given to Buyer in the Judicature Act and the Seizures Act (Alberta). For Buyers situated in Saskatchewan, Buyer agrees that the Limitation of Civil Rights Act shall have no application to these terms and conditions of sale. These terms and conditions of sale shall ensure to the benefit of and shall be binding upon TECHNOSPECS TECHNOLOGIES INC, the Buyer and their respective successors and assigns. TECHNOSPECS TECHNOLOGIES INC shall not be liable for loss or damages or delay due to causes beyond its control including but not limited to acts of God, acts of the Buyer, fire, strikes, lock outs or other labour disruptions, flood, epidemics, civil or military restrictions, embargoes, car shortages, wrecks, delays in transportation or inability to obtain necessary labour. In the event of any such delay, the delivery shall be extended for a period equal to the time lost by reason of the delay. Any notice required or contemplated hereunder shall be in writing and shall be delivered personally or sent by facsimile or other form of telecommunication or by prepaid registered mail. Any notice by personal delivery or facsimile or other form of telecommunication shall be deemed to have been received when delivered or transmitted receipt confirmed) and any notice sent by registered mail shall be deemed to have been received on the second business day following mailing. ALL SALES TRANSACTIONS EXCLUDE THE APPLICATION OF THE 1980 UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE.
Product and manufacturer names are manufacturer and publisher trademarks, registered trademarks and copyrights, and are used only for purposes of identification.