UE Systems Inc.
These Terms and Conditions of Sale (“Conditions”) and related Purchase Documents apply to every sale of products (“Goods”) and/or every supply of Services (“Services”) sold or provided by UE Systems Inc. (“Seller”) to the Buyer. The Buyer specifically agrees to be bound by these Conditions and acknowledges that, unless the Seller agrees in writing to a modification of these Conditions, these Conditions apply and take precedence over any of the Buyer’s own terms and conditions whether set out in the Purchase Documents or otherwise. Unless Buyer’s Purchase Documents references a written separate Agreement executed between duly authorized representatives of both Buyer and Seller, these Conditions constitute the only applicable agreement (“Agreement”) between Buyer and Seller regarding such sale of Goods and/or supply of Services. Buyer shall be deemed to have agreed to this Conditions unless notice to the contrary is received by Seller within two days from the earlier of the date of Seller’s order confirmation or invoice. An order confirmation or similar form issued by Seller pursuant to Buyer’s purchase order constitutes an expression of acceptance of Seller offer through quotation or proposal, but such expression of acceptance is expressly conditioned upon Buyer’s assent to the Conditions. ANY REPRESENTATIONS, PROMISES, WARRANTIES, OR STATEMENTS BY SELLER’S REPRESENTATIVE THAT DIFFER IN ANY WAY FROM THE CONDITIONS SHALL BE GIVEN NO FORCE OR EFFECT. Any additional, different, or conflicting terms or conditions set forth in any communications, including without limitation a request for quotation, or purchase order form transmitted orally or in written including electronic transmission or otherwise, from Buyer shall not be effective or binding unless expressly assented to with acknowledgement in writing by Seller. No other special terms or additions conditions are acceptable. Buyer further hereby agrees that Seller may correct any typographical or clerical error herein, and such correction shall become part of the Agreement without any further action on the part of Buyer.
“Buyer” means the company, partnership, person or entity purchasing the Goods and/or Services from the Seller identified in the Purchase Documents;
“Goods” means the product, equipment, materials or parts being purchased by the Buyer as identified in the Purchase Documents;
“Purchase Documents” means the documents accompanying these Conditions including, as applicable, the Buyer’s request for quotation/proposal, purchase orders, and with the Seller’s quotation/proposal;
“Seller” means UE Systems Inc.;
“Services” means the services of any description or kind to be provided by the Seller in relation to the Goods as more particularly identified in the Purchase Documents;
“Software” means the executable file of the computer programs, cloud based programs, and “Firmware” means the source code, to be provided by the Seller to the Buyer which is more particularly described in the Purchase Documents; and
“Conditions” means these terms and conditions, which together with the Purchase Documents, constitute the entire agreement between Buyer and Seller.
“Specification” means the Seller’s product specification or technical information provided under the reference quotation or proposal or order acknowledgement thereof specific for the Goods, including Documentation and Services identified in the Agreement, if none is identified, UE System’s standard published specification.
Unless otherwise specified by the Seller in writing, prices quoted are valid for a period of three months from the date of Seller’s quotation. The Services charged will be at the rates set out in the Seller’s published rate schedule in effect at the time the Services are actually rendered. The Seller’s prices do not include applicable taxes which will be added to the price quoted and to appear as a separate line item on the Seller’s invoice. Prices for Goods do not cover any provision for shipment, storage, installation, commissioning or training including any form of factory or site acceptances or maintenance works as required unless such items are expressly stated in the Seller’s quotation. Any future changes to applicable taxes, import tariffs, excise duty, custom charges or other fees of any nature from manufacture, sales, delivery and/or services whatsoever as may be imposed by any governmental authorities at time of shipment shall be fully chargeable to the Buyer. Buyer shall supply in advance exemption certificate or other document deem acceptable to the governmental authority if the Buyer claims any exception.
2. DELIVERY TO TRANSFER OF TITLE AND RISK:
All shipping dates for the Goods and performance dates for the Services are approximate only and are based on Seller having received from the Buyer all information required by the Seller to provide the Goods and/or Services. The Buyer agrees to accept shipment when Goods are ready to ship, or storage charges may apply. Unless otherwise specifically agreed in the Purchase Order, the Goods are delivered and the risk of loss or damage shall pass to the Buyer upon collection of the Goods by the first carrier from Seller’s premises. Delivery of Goods by Seller will be deemed to be made to the Buyer upon obtaining a signed receipt from the carrier showing receipt of the Goods. Title passes only upon Seller receiving full payment. Seller reserves the right to make shipments in instalments, unless otherwise expressly stipulated in a specific Purchase Document; and all such instalments when separately invoiced shall be paid for when due per invoice without regard to subsequent shipments. Delay in shipment of any installment shall not relieve Buyer of its obligation to accept remaining shipments. Claims for shipment shortages or errors must be submitted to Seller within 30 calendar days after invoice date, and failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by the Buyer. Any storage costs beyond reasonable ready to be shipped date to be charged to Buyer.
The Seller shall supply the Buyer with the documentation as specified in the Seller’s quotation. Any additional copies of the documentation or the supply of the documentation on alternative media will be provided by the Seller to the Buyer at the Seller’s price then in effect.
4. EXCUSE OF PERFORMANCE DUE TO FORCE MAJEURE:
Seller shall not be liable for force majeure delays in performance or for non-performance, among other things, due typically or attributed as acts of God, war, riot, fire, labour issues, unavailability of materials or components, explosion, accident, compliance with governmental requests, laws, regulations, orders or actions, or other unforeseen circumstances or causes that are beyond Seller’s reasonable control. Any delay resulting from any such cause shall extend the date of delivery and the price of the Goods and/or Services to be provided by the Seller may be revised by agreement made between the Buyer and Seller or the Buyer or Seller may at its option cancel the sale of the Goods or agreement to provide Services in which case the Buyer shall pay the Seller final invoice reflecting the total of outstanding amounts for work in progress to date of cancellation, balance of completed works including any restocking fees, and other costs or expenses incurred by Seller arising from such a cancellation.
5. CHANGES, TERMINATION AND SUSPENSION BY BUYER:
Buyer may terminate or suspend its order for any or all of the Goods/Services covered by these Conditions, provided that Buyer gives Seller reasonable advance written notice of such termination or suspension and reimburses Seller for all losses, damages, costs and expenses arising from such termination or suspension. The Seller shall have the right, in addition to any other remedy, to either terminate its agreement to sell the Goods or provide the Services or suspend further deliveries of the Goods or provision of the Services to the Buyer in the event Buyer fails to make any payment required to be made to the Seller when due.
6. STANDARD WARRANTY:
Subject to the limitations of liability and remedies set out in Section 7, the Seller warrants its Product(s) and/or Services as follows:
- Goods manufactured by Seller under its own brands and supplied by Seller as part of the Purchase Documents, if any, against defects in material and workmanship of those Goods arising under normal use for a period of 12 months from the date of initial installation or 18 months from the date of shipment from Seller, whichever occurs first. Consumables components are warranted for a period of 90 days from the date of shipment by the Seller. Any resale product(s) manufactured by any third party provided by the Seller to the Buyer shall be subject to the original manufacturer’s standard warranty and no warranty for same is provided hereunder by Seller to Buyer. The Buyer agrees that the Seller shall have no liability for correcting any defect in the third-party manufactured materials and workmanship and that the Seller’s only obligation is to make a reasonable commercial effort to assist the Buyer in making a warranty claim as against the original manufacturer’s standard warranty. Consumables mean the stock of operating supplies or considered wear and tear parts to be used with the standard operation and maintenance of the Goods where such shall not constitute a defect under the definition of warranties.
- Services performed by Seller’s personnel including on component integration, device configuration and the repair of products are warranted against defects in workmanship for a period of the earlier than 90 calendar days from the date of Services rendered or 120 calendar days from the date of delivery of the product(s) to the Buyer.
Software: (a) The Seller does not warrant that any software provided by it in connection with the Product(s) and/or Services will be free from defects or that the software will run without interruption; (b) The only warranty provided for software or any upgrades to any software not developed by the Seller is the warranty provided by the original supplier of the software. The Buyer agrees that the Seller has no liability for the repair or correction of any defect in any such software and that the Seller’s only obligation is to make a reasonable commercial effort to arrange for the supplier of the software to make corrections to the program of any defect in it; (c) Any software developed by the Seller, including any original software applications based upon the source code provided by others, and any upgrades to such software, is not warranted.
On-Site Support: If the Buyer requires the Seller to provide any Services relating to any defect in the Product(s) and/or Services provided for non-warranty claims, including diagnosis, dismantling and reinstallation of Product(s), at the Buyer’s site, all costs of travel to and from the Buyer’s site and of these Services shall be paid by the Buyer at the rates set out in the Seller’s published rate schedule in effect at the time the Services are actually rendered.
WARRANTY EXCLUSIONS: (a) The Seller does not warrant the performance of any Product(s) and/or Services provided by it to the extent that the actual operating or other conditions differ from the specifications, information, representation of operating conditions or other data supplied by the Buyer (collectively, “Buyer Specifications”) for the purpose of the selection or design of the Product(s) and/or Services to be provided by the Seller. Seller relies on the Buyer Specifications; (b) This limited warranty shall not apply to any repair or replacement of Product(s) caused by abuse, accidental damage, misuse, improper installation, and improper application, corrosion or inadequate or improper preventative maintenance of the Product(s); (c) The Seller does not warrant the performance of any Software or Goods controlled by the Software provided by the Seller unless the Buyer attends a site acceptance test and completes the site acceptance test documentation when the Purchase Documents require a site acceptance test of the Software and Goods; EXCEPT AS EXPRESSLY PROVIDED HEREIN, THERE ARE NO OTHER REPRESENTATIONS OR WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, MADE BY SELLER AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OR ANY OTHER MATTER WITH RESPECT TO ANY OF THE GOODS OR SERVICES AND ALL IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES OR CONDITIONS ARE EXPRESSLY DISCLAIMED BY SELLER.
7. LIMITATION OF REMEDY AND LIABILITY:
Seller shall not be liable for damages caused by delay in performance. The sole and exclusive remedy for breach of warranty hereunder shall be limited to the term of original sale to repair, correction, replacement or refund of purchase price under the Limited Warranty Clause in Section 6. In no event, regardless of the form of the claim or cause of action (whether based in contract, infringement, negligence, strict liability, other tort or otherwise), shall Seller’s liability to Buyer and/or its customers exceed the price to Buyer of the specific Goods manufactured or Services provided by the Seller giving rise to the claim or cause of action. Buyer agrees that in no event shall Seller’s liability to Buyer and/or its customers extend to include indirect special, incidental, consequential or punitive damages. The term “consequential damages” from non-delivery or through defects in materials or workmanship or from any other causes whatsoever shall include, but not be limited to loss of anticipated profits, loss of use, loss of data, loss of production, loss of revenue and cost of capital.
The Seller agrees to protect, defend, indemnify and hold harmless the Buyer, its respective shareholders, officers, directors, employees and consultants from and against any and all claims, demands, losses, causes of action, liability and costs (including all legal costs and attorney fees) of every kind and nature arising out of or connected in any way with (a) Buyer’s performance and/or breach hereunder, (b) damage to property, personal injury or death of the Buyer’s employees, or (c) claims of any third parties alleged to have been caused by any act or omission of the Seller connected with the Product(s) and/or Services provided by the Seller. The same reverse indemnity shall apply from Buyer to Seller.
9. INTELLECTUAL PROPERTY MATTERS:
Nothing in these Conditions constitutes a transfer or conveyance of any right, title or interest in such intellectual property, including without limitation to any software or firmware contained in those, except the limited right to use it as provided hereunder and/or in the Purchase Documents. Seller will not be responsible for any compromise or settlement made without its written consent. In no event, shall Seller be liable if any infringement claim is based on the use of Seller’s Goods for a purpose other than that for which it was sold by Seller. As to any Goods or Services furnished by Seller to Buyer and manufactured or provided in accordance with designs proposed by Buyer, the Buyer shall indemnify Seller against any award made against Seller for any patent, trademark, copyright or other intellectual property rights’ infringements.
Buyer shall be responsible, at its sole expense, for receiving, storing, installing, starting up and maintaining all Goods. Seller shall provide a quotation for Services to assist Buyer in these functions if requested.
The Buyer acknowledges and warrants that it (a) will adhere to and comply with all applicable domestic and foreign export control laws, regulations orders and requirements (the “Export Control Laws”), and (b) will not, directly or indirectly, as agent, consultant, customer, end-user, freight forwarder or otherwise directly or indirectly through a third party (i) ship the Goods to any country subject to trade embargoes in violation of any Export Control Laws or (ii) apply, sell, export, re-export, divert or otherwise transfer the Goods in support of a prohibited end-use.
12. TERMS OF PAYMENT:
Subject to approval of the Seller’s credit department, the Buyer shall pay the Seller the price of the Goods and/or Services provided within thirty (30) calendar days from the date of the Seller’s invoice. All overdue payments may be subject to additional fees.
13. SOFTWARE AND FIRMWARE:
Notwithstanding any other provision herein to the contrary, Seller or applicable third-party owner shall retain all rights of ownership and title in its respective firmware and software, including all copyrights relating to such firmware and software and all copies of such firmware and software and its documentation. Except as otherwise expressly provided herein, Buyer is hereby granted a limited, nonexclusive, non-assignable, non-transferable, royalty free license to use firmware and software, and copies of firmware and software and its documentation, incorporated into the Goods only in conjunction with such Goods and only at the Buyer’s specific plant site where the Goods are first used. Buyer may negotiate purchase from with Seller separate licenses to use such copies and firmware and software at other plant sites. Buyer’s use of certain firmware (as specified by Seller) and all other software shall be governed exclusively by Seller’s and/or third-party owner’s applicable license terms. Any software or computer information, in whatever form that is provided with Goods manufactured by Seller or as part of Services, is licensed to Buyer solely pursuant to standard licenses of Seller or its supplier of such software or computer information which licenses are hereby incorporated by reference as applicable. Subject to and in addition to Section 6 above, Seller does not warrant that such software or computer information will operate error free or without interruption and warrants only that during the warranty period applicable to the Goods that the software will perform its essential functions. If such software or computer information fails to conform to such warranty, Seller will, at its option and as Buyer’s sole remedy, provide an update to correct the non-conformance or replace the software or computer information with the latest available version containing a correction. Seller shall have no other obligation to provide updates or revisions.
14. BUYER SUPPLIED DATA:
To the extent that Seller has relied upon any Buyer Specifications or other data or information supplied by Buyer to Seller in the selection or design of the Goods and/or provision of the Services and the preparation of Seller’s quotation, and in the event that actual operating conditions or other conditions differ from those represented by Buyer and relied upon by Seller, any warranties or other provisions contained herein which are affected by such conditions shall be null and void, unless otherwise mutually agreed upon in writing.
The Buyer agrees that it shall not disclose or otherwise make available to third parties any particulars relating to any information which the Seller has a proprietary interest in including, but not limited to its product, software, firmware, specifications, drawings and data, without receiving written permission from the Seller.
16. GENERAL PROVISIONS:
(a) Buyer shall not assign its rights or obligations under these Conditions without Seller’s prior written consent. (b) There are no understandings, agreements or representations, express or implied, not specified in these Conditions. (c) No action, regardless of form, arising out of transactions under these Conditions, may be brought by either party more than two (2) years after the cause of action has accrued. (d) The agreement formed under these Conditions shall be construed, performed and enforced under the laws of the State of New York including references to the federal laws of the US without regard to its conflicts of laws interpretations thereof. Buyer agrees that all Goods and Services require proper compliance with import and export laws and where applicable on administrative requirements including the collection payment of all associated duties, taxes and fees to authorities by Seller.
Seller shall obtain and maintain all appropriate insurance coverage (including, without limitation, commercial general liability, worker’s compensation, auto, errors and omissions, professional liability insurance) and for such amounts in accordance with Seller’s industry practice. Certificate of insurance evidencing this may be provided on request.
18. HEALTH AND SAFETY, DESIGNATED SUBSTANCES FREE ON BUYER’S SITE
Seller employees shall not perform Services on Buyer’s site that, in their opinion, is not free of reasonably foreseeable health, safety and Designated substances harm. This includes working on any equipment, whether provided by Seller, Buyer or otherwise, that in the Seller’s or such Seller employees’ sole opinion has not been placed in a safe working condition. Buyer warrants that site and working conditions shall meet or exceed those specified by applicable Occupational Health and Safety Act and Regulations including ensuring Designated substances free work environment. Buyer shall inform Seller of: (a) known hazards, or reasonably foreseeable hazards, that are related to Seller’s scope of Services and the site where the Services will be performed; and (b) information about the worksite necessary to identify hazards and assess risk for the protection of the health and safety of Seller personnel. This information might include, but is not limited to: (i) providing an accurate up-to-date drawings, process data and specification information, (ii) providing relevant Workplace Hazardous Materials Information System (WHMIS) information such as Material Safety Data Sheets (MSDS) and floor plans indicating areas where hazardous materials are located and emergency exits for service rooms and other areas of operation; and (iii) other site specific information relative to the Buyer’s operation, process and safety systems. Any hazardous materials requiring remediation in Seller’s sole opinion will be separately chargeable to Buyer and will be a condition precedent to Buyer’s continued performance of such Services. Seller will not be liable for any costs, fees, charges or expenses incurred to identify or safely remove any Designated substances deem necessary on Buyer’s site.
19. ACCESS TO BUYER SITE
Buyer to ensure site access will be free and unrestricted to enable Seller to perform the Services. Any waiting or delay time due to others, and/or any site-specific requirements for safety training or whatsoever beyond Seller’s control will be billable per published rates. Any cancellation of scheduled Services received less than 7 days will be charged the same minimum billing rates plus any other travel and expenses charges due to the Buyer’s requested changes. Buyer shall appoint a representative familiar with the site conditions and nature of the Services to be performed by the Seller to be present at all times including providing all necessary assistance while Seller personnel are at the site. Seller shall not be liable for any expenses incurred by Buyer in removing, replacing or refurbishing any Buyer equipment or any part of the building structure that may restrict Seller access. Seller shall not be liable or responsible for any site work performed by Buyer.
20. RETURN POLICY
Returned equipment may be accepted for return by UE Systems Inc. if the equipment is new, unused, undamaged, in the original shipping container(s), and within six months of original purchase date. All returned equipment is subject to a restocking fee to be determined at the time of request. Shipping charges for the return shall be paid by the customer and sent to UE Systems Inc. UE Systems Inc. will retain delivery premiums associated with the original shipment of the returned equipment. Upon receipt and inspection of the equipment, the condition of material is subject to determination by UE Systems Inc. Quality Assurance department. UE Systems Inc. reserves the right to deny credit for any authorized returns that upon inspection are deemed not to meet the criteria set out above. UE Systems Inc. reserves the right to refuse the return of equipment if the equipment is non-standard, of special material, built-to-order, or not returnable to the original manufacturer. Return Material Authorizations are valid for one months from issue date, after which time Return Material Authorizations that have not been received will be cancelled, and associated equipment will be refused if received at UE Systems.
21. CHANGE ORDER AND CANCELLATION POLICY
Change Orders and/or Cancellations issued by the Customer after contract placement with UE Systems Inc. will be subject to fees to be determined at the time of the change and/or cancellation request. Changes include but are not limited to changes to Documentation, Tagging, Calibration Range(s), Model Number(s), Quantity, Materials of Construction, and Orientation. Cancellations are defined as each reduction in quantity of model(s) and part number(s) per line item ordered. In the event of a Credit Hold, UE Systems Inc. reserves the right to apply cancellation fees; if equipment has been built and ready for shipment for 120 days beyond the original requested ship date, and the credit hold has not been resolved by the Customer, UE Systems Inc. reserves the right to cancel the Customer’s order and apply all associated cancellation fees to the Customer’s account.