1. ACCEPTANCE OF TERMS
All quotations and proposals covering products (“Products”) of Avateq Corp. (hereinafter “Seller”) are made, and all contracts or purchase orders for Products are accepted, solely under the terms and conditions set forth herein (the “Terms and Conditions of Sale”). These Terms and Conditions of Sale constitute an offer to sell and/or license and may be accepted by buyer (“Buyer”) either in writing, electronically, or by any conduct that recognizes the existence of a contract. Any such acceptance is limited to the express provisions of these Terms and Conditions of Sale. Seller hereby objects to and rejects any proposal for additional or different terms. Any such additional or different provisions or variances shall be deemed material and of no force or effect. If this document is provided in response to Buyer’s purchase order, such purchase order shall be deemed a request for quotation only, and these Terms and Conditions of Sale shall constitute the sole offer to sell and/or license the Products.
2. PRICE / TAXES
Unless otherwise agreed to in writing by Seller, prices for Products shall be Seller’s then-current list prices at the time of receipt of Buyer’s order, in U.S. dollars. Prices are net, exclusive of all sales, use, value-added, withholding, or similar taxes; customs duties; import/export fees; packaging; or insurance costs. Buyer is solely responsible for all applicable taxes, duties, and other governmental assessments, as well as all costs associated with shipping and logistics, including transportation, insurance, customs clearance, and brokerage fees.
3. PAYMENT
Payment shall be made in full within thirty (30) days from the date of invoice. If shipment is delayed at the request of Buyer, payment shall become due on the date Seller is ready to ship. Late payments will incur a late fee of 1.5% per month or the maximum allowed by applicable law, whichever is less. If Seller, in its sole judgment, deems Buyer’s financial condition insufficient, Seller may cancel any accepted order or require advance payment or security. Seller reserves a purchase money security interest in the Products until full payment is received and may file any documents necessary to perfect this interest in accordance with the laws of Ontario, Canada.
4. SHIPMENT / TITLE / RISK OF LOSS
All deliveries shall be made Ex Works (EXW), Markham, Ontario, Canada (Incoterms® 2020). Title and risk of loss shall pass to Buyer upon delivery to the carrier. Seller will use commercially reasonable efforts to meet estimated shipping dates but is not liable for delays. Products shall be deemed accepted upon delivery. Buyer agrees to accept partial shipments and pay for them as invoiced. Seller shall determine the shipping method unless otherwise agreed in writing.
5. CANCELLATION / CHANGES
No cancellation or change to any order shall be binding unless approved in writing by Seller. If approved, Buyer shall be responsible for all costs incurred by Seller up to the point of cancellation, including materials, labor, and a reasonable cancellation fee. Seller reserves the right to make product modifications prior to shipment that do not materially affect published specifications.
6. LIMITED WARRANTY
6.1 Hardware:
Seller warrants that hardware Products it manufactures (“Equipment”) shall be free from defects in materials and workmanship for one (1) year from the date of shipment, when used under normal conditions and in accordance with documentation. Seller’s sole obligation, and Buyer’s exclusive remedy, is repair or replacement of defective Equipment at Seller’s discretion, subject to return authorization procedures. This warranty excludes defects caused by misuse, negligence, accident, fire, unauthorized repairs, or installation outside of the specifications.
6.2 Software:
Seller warrants that any Seller-developed software pre-installed on Equipment (“Seller Software”) will materially conform to its published specifications for one (1) year from shipment. Seller’s sole obligation is to use commercially reasonable efforts to correct documented defects. This warranty excludes defects caused by misuse, third-party modifications, or non-Seller systems. Third-party software is warranted solely by its original licensor.
6.3 Disclaimer:
THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR ACCURACY. SELLER DISCLAIMS ALL LIABILITY FOR ENCRYPTION OR CONDITIONAL ACCESS SYSTEMS OR FUNCTIONALITY.
7. SOFTWARE LICENSE
Buyer is granted a limited, non-exclusive, non-transferable license to use any Seller Software only in connection with the Equipment and only for so long as Buyer owns such Equipment. Buyer shall not modify, copy, reverse engineer, or distribute the Software. All right, title, and interest in the Software remain with Seller. Buyer agrees not to export or re-export Software without proper government authorization. Seller may terminate the license for breach of these terms.
8. LIMITATIONS ON LIABILITY
IN NO EVENT SHALL SELLER BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF USE, OR DELAYS. SELLER’S TOTAL CUMULATIVE LIABILITY SHALL NOT EXCEED THE AMOUNTS PAID BY BUYER FOR THE SPECIFIC PRODUCT GIVING RISE TO THE CLAIM. THIS LIMITATION SHALL APPLY REGARDLESS OF THE FORM OF ACTION AND SHALL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDY.
9. ASSIGNMENTS AND SUBCONTRACTING
Seller may assign or subcontract any portion of its obligations. Buyer may not assign or delegate its obligations without Seller’s prior written consent. Any unauthorized assignment shall be void.
10. WAIVER; SEVERABILITY
Failure by Seller to enforce any provision shall not be construed as a waiver of future enforcement. If any provision is held invalid or unenforceable, the remainder shall continue in full force and effect. Any invalid provision shall be replaced with one that best reflects the original intent.
11. SURVIVAL
All provisions relating to payment, intellectual property, limitations of liability, export compliance, and any rights or obligations which by their nature should survive, shall survive expiration or termination of these Terms.
12. GOVERNING LAW
These Terms and Conditions of Sale shall be governed by the laws of the Province of Ontario, Canada, without regard to conflict-of-law principles. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply. All disputes shall be subject to the exclusive jurisdiction of the courts located in Markham, Ontario. For international disputes, Seller may, at its option, elect to resolve such disputes via arbitration under the International Chamber of Commerce (ICC) Rules, conducted in English and seated in Toronto, Canada.
13. COMPLIANCE WITH LAWS / EXPORT CONTROL
Buyer agrees to comply with all applicable export, import, trade compliance, and anti-boycott laws and regulations, including but not limited to the Export Administration Regulations (EAR), International Traffic in Arms Regulations (ITAR), EU Dual-Use Regulation, and other applicable international trade laws. Buyer represents that it is not a party listed on any government-prohibited or restricted party list, including but not limited to OFAC, BIS, and UN Sanctions Lists. Buyer shall not export, re-export, or transfer any Product or technical data to any country or entity subject to embargo or sanction by Canada, the U.S., the EU, or the UN without required governmental licenses or approvals.
14. FORCE MAJEURE
Seller shall not be liable for any failure or delay in performance due to events beyond its reasonable control, including but not limited to acts of God, war, terrorism, embargoes, labour disputes, supply chain disruptions, pandemics, or acts of government. Delivery timelines shall be extended accordingly. In such cases, Seller may allocate inventory among customers in its sole discretion.
15. INDEPENDENT CONTRACTORS
The parties are independent contractors. Nothing in these Terms creates any joint venture, agency, or partnership. Neither party has authority to bind the other or act on its behalf.
16. ENTIRE AGREEMENT
These Terms and Conditions constitute the entire agreement between Buyer and Seller relating to the sale of Products. They supersede all prior communications and shall not be amended except in writing signed by both parties. No course of dealing or usage of trade shall affect their interpretation.
17. ANTI-CORRUPTION COMPLIANCE
Buyer agrees to comply with all applicable anti-corruption laws, including but not limited to the U.S. Foreign Corrupt Practices Act (FCPA), UK Bribery Act, and any similar laws of applicable jurisdictions. Buyer shall not offer, pay, or authorize any bribe or improper payment, and shall promptly report any suspected violation. Seller may immediately terminate any agreement upon breach of this clause.