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<br />TERMS & CONDITION OF PURCHASE
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<br />1. DEFINITIONS
<br />When used herein. the followirg 1erms. whether plural or singular. shall have the meaning set forth below:
<br />1,1 . Third PartY ~' means that trurd party equipment andior software products marketed by
<br />CSS as iisted on the cover signature page, together with all user manuals and other documents accompanying the
<br />delivery of the Third Party Products. provided that the Third Party Products shall not irclude Class Software;
<br />1.2 'Ciass Software' means software in executable code, the non-exclusive use of which is licensed
<br />by CSS to the Customer in accordance with the Class Software License Agreement (Executable Code) as
<br />contemplated in Section 4,2,
<br />1.3 'Related Documentation' means allY end user specifications. manuals. instructions. and other
<br />materials, and any copies of any of t~e foregoing. in any medium. relateo to the Third Party Products and suppied
<br />by CSS to ti'~ Customer with the Third Party Products.
<br />1.4 .~' means those aoti.,;ties pertormed by CSS for Custcmer including but not limited to
<br />training Custome~s personnel on the functions, ir.stallation and use of the Third Party Products. the provision of
<br />whi,h services are govemed by t1e Ciass Professional Services Agreerrent signed by the parties.
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<br />2. PURCHASE AND SALE OF THIRD PARTY PRODUCTS
<br />2.1 Purchase Commtment and Price" CSS hereby sells to Customer, and Customer hereby agrees to
<br />purchase from CSS the Third Party Products in the volumes and at the prices listed on the cover signature page,
<br />under the terms and conditions set fcrth in this Agreement. Such purchases shall be made by the Customer issuing
<br />""'"'15e o'ders in compiance with this Agreement a.1d subject to the acceptance thereof by CSS.
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<br />Deiivery - The Third Party Procucts shall be delivered to Customer as designated in each
<br />lSe o"der and mutually agreed by CSS and the Custo'llef,
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<br />I.,J Securitv Interest in Third Party Products - CSS shall have a purchase money security Interest
<br />there:n until Customer pays CSS in full for aJ aroounts owing from Customer to CSS in connecticn with the
<br />particular shipment of which the Third Party Products fcrm a part. Customer shall sign all instruments and do all
<br />acts that CSS, aoting reasonably. requires to effect perfect. register or record such retention of title and security
<br />interest. In the event of defauit in payment or other breach by Customer. CSS shall, in addition to all other dghts
<br />afforded by law, have all ofti'e rights and remedies of a sec...ed creditor under the Personal Property Security Act
<br />of the jurisdicl10n in which the Third Party Products is situate or Article Nine oftte Uniform Commercial Code. Upon
<br />payrrent in ft.ll by Customer. CSS shall no longer have a security ioterest in the Tnird Party Products and the
<br />proceecs thereof.
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<br />2.4 Purchase Orders - The Customer may issue purchase orders by completing an additional cover
<br />signature page which shall specify the quantities and price ofte Third Party Products with the requested dale of
<br />shipment and place of delivery, The purchase order wDl not be effective until the date it is accepted in writing by
<br />CSS, Other than the above designated information any other terms and conditions on purchase order forms issued
<br />by the Customer shall not te deemed to be apartofthls Agreement and shall not be deemed to modify or
<br />supplement this Agreement in any way, notwithstanding the fact that CSS may accept or otherwise approve such
<br />purChase orders, Changes to the delivery schedule of any purchase orders generated under this Agreement must
<br />be made in wri~ng ninety (gO) days prior to the requested shipment date.
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<br />2.5 Purchase Commilment - Customer agrees to purchase the minim~m volume of Third Party
<br />Products as specified on the cover signature page ("Minimum Volurre'). The Minimll11 Volume as specified is
<br />required to establish the price and discounts allributable to the Third Party Products and it is understood that the
<br />Customer intends to purchase the min'mum quantity ofThird Party Products specifieo. within the caiendar quarters
<br />as estimated on the cover signature page but in no event later than six (6) months from the da:e of CSS's receipt of
<br />the initial purchase order or as otherwise mutually agreed upon by the parties. CSS reserves the rigl1t to
<br />reasonablY adjust the price scnedule set for.h on the cover signature page ~ Customer fails to meet the Minimlll1
<br />Volume as set for.h herein, The Customer will provide an estimate of any purchases in excess of the Minimum
<br />VoluCle to CSS on a semi-annual basis.
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<br />2.6 Additional Third Pm Products - Customer may purchase additional Third Party Products under
<br />this Agreement by issuing additional cover signature pages for quantities in eddition to those set out 01 the cover
<br />signature page. The price for the additional Third Party Products will be at a price to be agreed upon by CSS and
<br />the Customer, Any representations or warranties contained in this Agreementwith respect to the Third Party
<br />Products. shaH be applicabie to 1I1e additional Third Party Products. Customer acknowledges that CSS may
<br />discontinue the supply of such additional Third Party Products on three 13) months prior wlitten notice to 11e
<br />Customer, p,ovided such discontinuance shali not reduce CSS's obligations to suppiy Ine Minimum Volume or fill
<br />any purc,ase order outstanding at such tirr,e of discontinuance,
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<br />WARRANTY
<br />Warranty - Third Party Products are warranted by the manufacturer thereof In accordance with the
<br />1ty statement accompanying delivery of the Third Party Products. The Customer agrees that the Customer
<br />y solely on such Third Party Product warranty aIld the Customer shall make no claim against CSS on
<br />____.n! of any warranty. express or implied. which may apply to the Third Party Product. Notwithstanding the
<br />forgoing. if Customer for any reason establishes any claim against CSS on account of a Third Party Product CSS's
<br />entire liability a1d Customer's exclusive remedy for any Third Party Products shall ce, at CSS's option. to repair or
<br />provide an equivalent replacement or refund the p"rchase price of such Third Party Products which is returned
<br />properly packaged with tne duly authorized CSS return permit and returned prepaid to CSS's designated locale
<br />during the Third Party warranty period.
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<br />3.2 Warranty Exclusions - THE WARRANTY OFFERED BY THIRD PARTIES FOR THE THIRD
<br />PARTY PRODUCTS. iF ANY. ARE IN liEU OF ANY AND ALL WARRANTIES FROM CSS. WHETHER EXPRESS,
<br />IMPliED OR STATUTORY, INCLUDING BUT NOT liMITED TO IMPLIED WARRANTIES OF
<br />MERCHANTABiliTY. DURABiLITY AND FrTNESS FOR A PARTICUlAR PURPOSE OR ANY 1r.t'L1ED
<br />WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.
<br />CSS shall have no obligation under Section 3.1 or otherwise under this Agreement for the following services. but if
<br />such services are available. such services may be provided by CSS at CSS's then applicable service terms upon
<br />Custome~s payment of CSS's then standard rates. matelial charges and travel expenses:
<br />(a) Repair of damage or increase in service time caused cy fail...e to continually provide a suitable
<br />installation en.,;ronment
<br />(b) Repair of damage or increase in service time caused ty the use of the Third Party Products for
<br />other than the purposes for which the Third Party Products were designed; or neglect or msuse.
<br />(c) Repair of damage caused by accident or disaster, which includes, but is not limited to fire. fiood.
<br />submersion in liquid. wind, iighlning. transportation subsequent to deiivery, or force majeure.
<br />(d) Inspection of altered Third Party Products. repair of damage or increase in service time caused DY
<br />alterations not authorized by CSS, which alterations include. but are not limited to, any deviation
<br />from CSS's physical. mechanical or electrical specifications.
<br />(e) Service time and materials associated with the rearrangement or reiocation of the Third Party
<br />Products.
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<br />3.3 Limtation o~ liabilitv -I~ NO EVENT SHALL CSS B: liABLE. WHETHER IN CONTRACT,
<br />NEGliGENCE, TORT. OR ON ANY OTHER BASIS FOR INDIRECT. INCIDENTAL, CONSEQUENTIAL OR
<br />EXEMPCARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SALE. SERVICES,
<br />MAINT:NANCE. USE. PERFORMANCE. FAILURE OR INTERRUPTION IN THE CPERATION OFTHETHiRD
<br />PARTY PRODUCTS, SOFTWARE OR SERV:CES, EVEN IF CSS is ADVISED OF THE POSSIBILITY OF SUCH
<br />DAMAGES.
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<br />3.4 Service After Warranty - The Third Party Products are eligible for service under CSS's Software
<br />Service Agreement or as otherwise mutually agreed upon by the parties. The lee for service shall be at CSS's then
<br />prevailing rates, At Customer's option. the Software Service Agreement may corrmence on tt,e date of expiration of
<br />the initial third party warranty period for the Third Party Products. CSS does not warrant the availability of after
<br />sales service for a1i Third Party Products.
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<br />15 installation Site - Customer shall be responsible for meeting all instaliation specifications and other
<br />environmental reqUirements for the Third Party Products as set out in the Third Party Products specifications.
<br />Customer shari also be responsible for any additional parts or services dictated by the environment in which the
<br />Third Party Products are installed.
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<br />3.6 Third Party Products Modification - Any Third Party warranty obligations or any CSS obligations
<br />hereunder shall be void in the event Customer modifies the Third Party Products or uses any attachment feature.
<br />or device which is no, specified as an approved attachmenti1 the Related Documentation on the Third Party
<br />Products. without first obtaining CSS's written approval.
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<br />4. PROPRIETARY RIGHTS
<br />4,1 CSS ProDrietary Riohts - The Customer acknowledges that the Third Party Prooucts are subject to
<br />the intellectual proDerty righ:s of the third party manufacturer, including any copyright trade secret trademark and
<br />patent protection. The Customer will maintain in confidence and not use or disclose any and all confidential
<br />business or technical information as desi9nated as such by a third party supplier or CSS other tha1 for the
<br />evaiuation and use of the Third Party Products by the Customer.
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<br />4.2 Class Software and Third Partv Products - The Cuslcmer acknowledges that the Third Party
<br />Products may require or be bundled with or have installed thereon Class Software as disclosed oy CSS. A:I Class
<br />Software ano the use thereof by the Customer shall be governed by the Class Software License (Executable
<br />Code). Al Third Party Third Party Products (software) shall De governed by the terms of such third party suppliers
<br />iicense and warranty obligations accompanying the delivery of the Thrd Party Third Party Products,
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<br />5. GENERAL
<br />5.1 Termination - This Agreement shall become effective upon execu~on by CSS and Customer and
<br />shallterm'nate thirty 130) days after a party g",es the other party written notice of that party's material breach of this
<br />Agreement unless the other party has made commercially reasonable progress in curing the breacn.
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<br />5.2 Comolete Aareement - This Agreement including the Attachments hereto constitutes the complete
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<br />and exclusive statement pertaining to the acquisition of Third Party Products by the Customer. and supersedes all
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<br />oral orwlitten proposais. prior agreeme1ts and other prior communication's between the parties. conceming the
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<br />subject matter of this Agreement In the event of a conliict between the terms of this head Agreement and the cover
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<br />signature page, any additional purchase orders or any attachments hereto. the terms of this head Agreement shall
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<br />prevail.
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<br />5.3 Ferce Malaure - Dates or times by which either party is required to oerform under this Agreement
<br />excepting the payment of any fees or charges due hereunder shali be postponed automatJcally to the extent that
<br />any party is prevented from meeting them by causes beyor.d its reasonabie control.
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<br />5.4 Notices - All notices and requests in connecticn with this Agreement shall be given or made upon
<br />the respective parties in writing and shall be deemed given as of the third dayfoilowing the day the notice is faxed.
<br />providing hard copy acknowledgment of successful faxed no~ce transmssion is retained. Notice may also be
<br />deposited in the malls. postage pre-paid, certified or registered. and return receipt requested,:
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<br />5.5 Govern:no Law" This Agreement and performance hereunder shall be governed ty the laws of the
<br />Province of British Columbia, Canada.
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<br />5.6 ~, If any provision of this Agreement shaY be held to be invalid. iliegal or
<br />unenfcrceable under any applicable statute or rule of law. the validity, legality and enforceability of the remaining
<br />pro.,;sions shall in no way be affected or impaired thereby,
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<br />5.7 Non-Assionment - Customer may not assign Its lights. duties or obligations undertru. Agreement
<br />except to a related. affiliated or associated company of the Customer or a successor 10 substantialiy all of tlle
<br />assets and undertaking of Customer, without the prior written consent of CSS. such consent not tc be unreasonaoiy
<br />withheid by CSS.
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<br />5.8 Non-Waiver - The waiver or faiiure of either party to exercise in any respect any light provided for
<br />herein shall not be deemed a waiver of any further right hereunder.
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<br />5.9 No Aoencv - The p..-ttes acknowledge thai each is an independent cor.lracror and nothing herein
<br />constitutes ajoint venture or partnership and neither party has the light to bind nor act for the other as agent or in
<br />any other capacity.
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<br />5.10 Enurement - PJI covenants, representatives. warranties and agreements of the parties contained
<br />herein snali be binding upon and shali enure to the benefit of the parties and their respective successors and
<br />pennitted assigns.
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<br />5.11 Survival- Sections 3.2,13. 4.1 and 4.2 shall su~ve Ine termination or expira~on oftl1is
<br />Agreement
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<br />5.12 Reference. - Upo, CSS's request Customer agrees to be Identified by CSS as a user of the Th~d
<br />Party Products in reasonable promotional activities regardiflli Third Party Products including but not limited to,
<br />customer references. indUStry anicles. Third Party Products announcements. and other related activities.
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