LITELINE TERMS AND CONDITIONS
STANDARD TERMS AND CONDITIONS APPLICABLE TO SALES OF PRODUCTS (CANADA)
Terms and Conditions: These standard terms and conditions ("Terms") shall govern all orders and acceptances ("Order(s)") of products ("Products" or "Goods") sold from time to time by Liteline Corporation ("Seller") to its customers ("Buyer(s)"), shall supercede any inconsistent terms contained in any order received by Seller unless specifically agreed to in writing by the Seller, and cancel, replace and supersede all prior or contemporaneous oral or written correspondence, negotiations, understandings and agreement between the parties with respect thereto. No other terms or conditions including, without limitation, Buyer's standard printed terms and conditions, whether printed on Buyer's purchase order or otherwise, will have any application to any purchase between Seller and Buyer unless specifically accepted in writing by Seller. Fulfillment of Buyer's order does not constitute acceptance of any of Buyer's terms and conditions and does not serve to modify or amend these Terms. Unless otherwise expressly provided to the contrary, any quotation or sales order confirmation (acceptance) issued by the Seller incorporates by reference these Terms, whether or not so stated.
Offer and Acceptance: Seller accepts an Order and forms a contract with the Buyer only by communicating its acceptance to the Buyer in writing or by electronic communication originating from the Seller's principal business office located at: 90 West Beaver Creek, Richmond Hill, Ontario, Canada and such Order shall be deemed, upon acceptance, to be a contract formed in Canada. Unless otherwise explicitly stated therein to the contrary, Seller's written quotations become void unless a valid purchase order from the Buyer is communicated to the Seller by no later than the expiration date expressly stated on the written quotation, or 30 days from the date on the written quotation, whichever is later.
Cancellation: The Buyer shall not, under any circumstances, have the right to cancel or reschedule an Order without first receiving the expressed written consent of Seller (which consent may be arbitrarily withheld), and which may be conditional upon the Buyer paying to Seller a cancellation or rescheduling charge.
Prices and Payment Terms: Buyer shall purchase Products from Seller at the Seller's list price(s) (the "Price(s)") in force as of the date that Seller accepts Buyer's purchase order. PRICES ARE SUBJECT TO CHANGE WITHOUT NOTICE. All transportation charges or costs of insurance which may be assessed in connection with all Products delivered hereunder shall be added to the Prices for such Products and shall be payable by the Buyer, unless otherwise agreed in writing by the Seller. All Products are sold on a cash-on-delivery basis or on such arrangements as to credit as Seller may, in its sole discretion, grant, in writing, to the Buyer from time to time through its credit department. Invoices shall be rendered upon shipment and are due on or before the 25th day of the calendar month following the month during which delivery occurs, unless other payment terms are agreed to in writing. Amounts past due bear interest at the rate equal to the lesser of 18% per annum and the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, legal fees on a full indemnity basis. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Products if Buyer fails to pay any amounts when due hereunder. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller's breach or otherwise.
Partial Deliveries and Invoicing: Seller may deliver Products described in a particular Order in one or more instalments, and where less than all of the Products reflected in an Order are included in an instalment, the Buyer shall be liable to pay the price of the Products that have been so delivered without any holdback or other allowance with respect to the Products remaining to be delivered by Seller under the particular Order. Where Seller delivers the Products in one or more instalments, each instalment will constitute a separate sale. Notwithstanding anything contained to the contrary, Seller reserves the right to invoice Buyer prior to shipment for components of Products acquired and being held by Seller specifically for Buyer pending completion of an Order.
Incorrect or Incomplete Data: All prices quoted by Seller are strictly based on the accuracy and completeness of the information, data and specifications provided by the Buyer to Seller. In the event that during the course of fulfilling its obligations to the Buyer in respect of an Order, Seller discovers that information, data and/or specifications provided to it by the Buyer is inaccurate or incomplete, Seller may, in addition to any other rights and remedies which it may have at law or in equity:
- terminate the Order, by notice in writing, and invoice the Buyer for all work performed or Products ordered by or supplied to the Buyer in respect of the Order up to and including the date on which such termination notice is given;
- elect to proceed with the Order and charge to the Buyer all costs incurred by Seller on a time and materials basis by reason of the Buyer having provided Seller with incorrect information, data and/or specifications.
Shipping Terms, Delivery and Acceptance: The carrier, method of shipment, location of delivery (the "Delivery Point") and routing of shipment shall be selected by Seller in its absolute discretion, unless the Buyer and Seller agree in writing to specific delivery arrangements prior to shipment being made.
Products will be delivered within a reasonable time after the acceptance of Buyer's purchase order, subject to availability of finished Products. Seller shall not be liable for any delays, loss or damage in transit. The quantity of any instalment of Products as recorded by Seller on dispatch from Seller's place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
If for any reason Buyer fails to accept delivery of any of the Products following delivery or if Seller is unable to deliver the Products because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Products shall pass to Buyer; (ii) the Products shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Products until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
Buyer shall inspect the Products within 48 hours of delivery ("Inspection Period"). Buyer will be deemed to have accepted the Products unless it notifies Seller in writing of any Non-Conforming Products during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. "Non-Conforming Products" means only the following: (i) Product shipped that is different than the Product identified in Buyer's purchase order; or (ii) Product shipped with labeling or packaging that incorrectly identifies its contents.
If Buyer timely notifies Seller of any Non-Conforming Products, Seller shall, in its sole discretion, (i) replace such Non-Conforming Products with conforming Products, or (ii) credit or refund the Price for such Non-Conforming Products, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Non-Conforming Products to Seller's facility located at: 90 West Beaver Creek, Richmond Hill, Ontario, Canada. If Seller exercises its option to replace Non-Conforming Products, Seller shall, after receiving Buyer's shipment of Non-Conforming Products, ship to Buyer, at Buyer's expense and risk of loss, the replaced Products to the Delivery Point.
Any liability of Seller for non-delivery of Products shall be limited to replacing the Products within a reasonable time or adjusting the invoice respecting such Products to reflect the actual quantity delivered. Buyer acknowledges and agrees that such remedies are Buyer's exclusive remedies for the delivery of Non-Conforming Products. Except as provided in the preceding sentence, all sales of Products to Buyer are made on a one-way basis and Buyer has no right to return Products to Seller.
If Seller delivers to Buyer a quantity of Goods of up to Two Percent (2%) more or less than the quantity set forth in the Sales Confirmation, Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods the price set forth in the Sales Confirmation adjusted pro rata.
Currency: Unless otherwise expressly agreed upon in writing, all quoted Prices and payments for Orders originating from a Buyer located outside Canada shall be in U.S. Dollars and all quoted Prices and payments for Orders originating from a Buyer located inside Canada shall be in Canadian Dollars.
Taxes: The Price(s) quoted is/are exclusive of all applicable sales, use, or other excise taxes (including provincial sales tax and goods and services tax) and all other taxes, duties, tariffs, levies, imposts, or fees applicable to or arising from the transaction, and the Buyer shall pay promptly all such taxes, duties, tariffs, levies, imposts, or fees in the manner required by law. Where the Buyer claims to be entitled to an exemption from the obligation to pay any taxes, duties, tariffs, levies, imposts, or fees, the Buyer shall furnish satisfactory proof of its exemption to Seller, failing which Seller may charge and the Buyer shall pay the amount in question and shall seek repayment from the appropriate taxing or other governmental authorities.
Risk of Loss: Buyer assumes all risks of loss or damage with respect to Products upon delivery of such Products to the Delivery Point.
Withdrawal of Goods. If Seller determines that any Products sold to Buyer may be defective, at Seller's request, Buyer shall withdraw all similar Products from sale and, at Seller's option, either return such Products to Seller (at Seller's expense) or destroy the Products and provide Seller with written certification of such destruction. If Buyer returns all withdrawn Products or destroys all withdrawn Products and provides Seller with written certification of such destruction within 10 days following Seller's withdrawal request, in either case consistent with Seller's instructions, unless any such defect has been caused or contributed to by any of the factors described in clause (e) under the heading Limited Warranty Applicable to Seller's Products, Seller shall (a) repair or replace all such returned or destroyed Products or (b) (ii) credit or refund the price of such Products at the pro rata contract rate, in either case pursuant to the terms applicable to Products covered by a valid warranty claim hereunder.
Title Retention: Title to and ownership of Products shall remain vested in Seller and shall not pass to the Buyer until: (a) Seller has been paid in full the amount of the Price for the Products; and (b) Buyer has performed all of its obligations under these Terms. Notwithstanding the foregoing, title to Products consisting of software licensed to Buyer shall remain in Seller and shall be used only upon and subject to the terms of any license agreement which governs the use of such software. Buyer hereby grants to Seller a security interest (as that term is defined in the Personal Property Security Act (Ontario)) in Products sold to the Buyer as general and continuing collateral security to secure payment of the purchase price and grants Seller the unfettered right to register notice of its security interest in such Products under the applicable personal or movable property legislation of those jurisdictions as Seller, in its absolute discretion, deems appropriate. Buyer further agrees to execute any document or furnish any notices necessary to perfect such security interest.
Seller's Intellectual Property Rights: Buyer acknowledges and agrees that any and all of the Seller's intellectual and industrial property rights (the "Seller's IP Rights") in or associated with the Products or the Seller including all rights to copyrights, copyright applications, trademarks, patents, inventions, discoveries, patent applications, industrial designs, design rights, trade secrets and information of a confidential nature and including, without limitation, sales and marketing materials, product specification sheets, software and firmware imbedded in Products or supplied by Seller to operate Products, are the sole and exclusive property of Seller or its licensors and the Buyer shall not acquire any ownership interest in any of Seller's IP Rights. Seller's IP Rights are supplied solely for purposes of use in association with the Products only in accordance with these Terms and the instructions of Seller.
Force Majeure: Seller shall not be liable for any damage caused or loss of profit of the Buyer arising from a failure by Seller to comply with its obligations under an Order where that failure is attributable to circumstances beyond the reasonable control of Seller which include, but are not limited to, acts of God, fire, flood, storm, epidemic, riot, public disorder, any terrorist act, acts of the Buyer, inability to obtain labour or material to meet the specifications of the Buyer, strike, transportation failure, any act of war (whether declared or not) or any governmental, military, or other similar entity, exercising de facto sovereignty for the time being in any relevant jurisdiction, including any embargo or restriction upon shipping or transport.
Operating Environment: Buyer covenants and agrees at its own expense to provide itself or to specify to its own customers an operating environment which is suitable for the use or operation of Seller's Products and to ensure that it will, at all times, have properly trained and qualified personnel on hand to assist with, or to provide guidance and instructions to its customers regarding, the installation and the operation of the Products delivered by Seller.
Default: The Buyer shall be deemed to be in default of its obligations to Seller, if: (a) Buyer defaults in the payment of any amount owed by or to Seller or defaults in the observance or performance of anything required under an Order and these Terms; (b) any formal or informal proceedings for the dissolution of, liquidation of, or winding up of, the affairs by the Buyer is instituted by, or against, the Buyer, or where a resolution is passed or any other act undertaken for the winding up of the Buyer; or (c) Buyer is adjudged, bankrupt or becomes insolvent, or a petition in bankruptcy is filed against the Buyer, or where the Buyer makes an assignment for the general benefit of creditors or applies for relief under the Companies Creditors Arrangement Act (Canada) or where proceedings of any type are instituted in any jurisdiction in respect of the alleged insolvency or bankruptcy of the Buyer. Upon any such default, in addition to any other remedies it may have at law or in equity, Seller may cancel any other outstanding Order from the Buyer, refuse to make deliveries and declare all amounts owing to Seller to be immediately due and payable.
Exclusions and Limitations
EXCEPT FOR THE WARRANTY APPLICABLE TO SELLER'S PRODUCTS SET FORTH BELOW, SELLER MAKES NO CONDITION OR WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (a) CONDITION OR WARRANTY OF MERCHANTABILITY; OR (b) CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) CONDITION OR WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
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 BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER, 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 THE SALE OF PRODUCTS CONTEMPLATED BY THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED ONE TIMES THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCTS SOLD TO THE BUYER DURING THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH ALLEGED LIABILITY OR ONE MILLION CANADIAN DOLLARS, WHICHEVER IS LESS.