STANDARD TERMS AND CONDITIONS OF SALE
Customer purchase order #: _________________________________________ Purchase approved by: Name: ______________________________________ Title: ______________________________________ Signature: ______________________________________ Date: ______________________________________ Standards Terms & Conditions are in Annex A. Standard delivery time are: 12 to 16 weeks unless specified otherwise in the special instructions. Special Instructions:
The delivery location may change the applicable taxes. AYE3D Inc. Canadian tax numbers: TPS: 78968 2671 RT0001 TVQ: 12266488239 TQ0001 | Quote prepared by : Nom: Mario Genest Titre: CEO E-mail: mario.genest@aye3d.com Date: 2023/02/15
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ANNEX A
TERMS AND CONDITIONS
APPLICABLE TERMS.
These terms and conditions (as amended, supplemented, or replaced from time to time, “Terms and Conditions”) govern the sale of the FRE3DOMTM (the “Product”) by AYE3D Inc. or an affiliate or subsidiary thereof (in each case, “AYE3D”). These Terms and Conditions, any addenda hereto, AYE3D’s proposal and/or price quote, if any, and any purchase order to which these Terms and Conditions may be attached from the parties’ final agreement with respect to the Product (collectively, the “Agreement”). In the event of any ambiguity or conflict between these documents, precedence shall apply in accordance with the order written in the previous sentence. AYE3D’s proposal and the provision of the Product is conditioned on the original purchaser’s (“Customer”) acceptance of this Agreement. Any additional or conflicting terms from the Customer or contained in Customer’s request for proposal, specifications, purchase order or any other written or oral communication are not binding on AYE3D unless reduced to writing and separately signed and agreed to by AYE3D. AYE3D’s failure to object to Customer’s additional or conflicting terms does not operate as a waiver of the terms contained in this Agreement.
CUSTOMER REPRESENTATIONS AND WARRANTIES.
The Customer represents and warrants to and in favour of AYE3D as follows: (a) if the Customer is a corporation, the Customer is duly incorporated and validly existing in good standing under the laws of the jurisdiction of its incorporation, and the Customer has the corporate power to enter into this Agreement and all other documents required by or referred to in this Agreement, (b) this Agreement has been duly authorized by all necessary action, corporate or otherwise, on the part of the Customer, has been duly executed and delivered by the Customer and constitutes a legal, valid and binding agreement of the Customer enforceable against it in accordance with its terms, (c) the execution, delivery, observance and performance of this Agreement do not and will not result in the breach of, constitute a default under, or contravene any provision of the Customer’s constating documents, if applicable, or under any agreement which the Customer or any of its property or assets may be bound.
3. Acceptance and cancellation of orders. Each purchase order is subject to acceptance in writing by AYE3D. Any acknowledgement of receipt of an order does not constitute such an acceptance. Orders may not be modified or cancelled by Client without the specific prior written approval of AYE3D. Orders are non-cancellable and non-refundable.
PRICING & PAYMENT.
Prices and payment terms are as stated in AYE3D’s proposal, or as stated in the attached purchase order. Precedence shall apply in accordance with the order written in the previous sentence.
(a) Payment - A down-payment is required in the amount of 50% of the total purchase order, for orders that include hardware. A pre-payment in the amount of 100% is required for orders of software and/or services only. These payments shall be made by bank transfer, within ten (10) days from the receipt of the order confirmation. Unless otherwise stated in the applicable purchase order, all other payments are due net thirty (30) days from the invoice date in Canadian or US Dollars by wire transfer (or such other means as AYE3D may agree) to AYE3D.
(b) Taxes - Unless otherwise stated in the applicable purchase order, AYE3D’s rates exclude charges for taxes, excises, fees, duties or other government charges required by law to be paid (collectively, “Taxes”) related to the Product. The Customer will pay to AYE3D all Taxes owing under this Agreement or otherwise relating to the Product.
(c) Late Payments - Late payments shall bear interest at a monthly percentage rate of two percent (2%) or the highest rate allowed by law, whichever is lower.
(d) Bank charges - Client agrees to pay all bank charges levied by the remitting bank and all charges relating to the international transfer of funds and all costs of collection, including reasonable attorney fees and costs. AYE3D agrees to pay charges levied by the receiving bank.
(e) Suspension/Termination Right - AYE3D may suspend manufacturing and/or shipment of the Product if an invoice is more than fifteen (15) days past due. AYE3D may terminate this Agreement if an invoice is more than thirty (30) days past due. Unless otherwise prohibited by law, AYE3D may also terminate this Agreement immediately in the event of a material adverse change in the Customer’s financial condition, including, but not limited to bankruptcy, insolvency, or liquidation.
(f) Shipping. Packing and Handling of the Product - Unless otherwise stated in the applicable purchase order, AYE3D’s prices exclude charges for freight, unloading, installation, insurance, taxes, excises, fees, duties or other government charges related to the Product, which shall be for the Customer’s account.
TITLE AND SECURITY INTEREST.
Title to the Product is and will at all times be and remain vested in AYE3D until such time as all payments due to AYE3D hereunder are made by Customer. In addition to and without limiting the reservation of title in this Section, the Customer grants to AYE3D a security interest in all right, title and interest of the Customer in the Product, all present and after-acquired goods that form part of the Product and all proceeds of that personal property, as security for all indebtedness, liabilities and obligations of the Customer to AYE3D under this Agreement.
TRANSPORTATION AND SHIPMENT.
When the Product is ready for shipment, AYE3D will: (a) inform the Customer, and the Customer will then promptly give shipping instructions to AYE3D; (b) determine the method of transportation and shipment routing; and (c) ship the Product by normal transportation. Customer will pay or reimburse any excess transportation charges for special or expedited transportation. Client is deemed to have accepted the products unless a notice of rejection is given within ten (10) days after receipt. No return will be accepted without prior authorization of AYE3D.
7. Export controls. Client shall comply, and shall cause its distributors and integrators to comply, with all Canadian and U.S. laws and regulations controlling the export of certain commodities and technical data, including, without limitation all regulations and policies of foreign affairs and international trade Canada and all export administration regulations of the United States department of commerce.
TERMINATION.
AYE3D may terminate this Agreement if the Customer breaches any term of this Agreement and the Customer has not remedied the breach within ten (10) days. AYE3D may also terminate this Agreement with immediate effect if, (a) the Customer becomes insolvent (within the meaning of the Bankruptcy and Insolvency Act) (Canada)) or commits or threatens to commit an act of bankruptcy, or if a petition in bankruptcy, proposal, arrangement or reorganization under the Bankruptcy and Insolvency Act (Canada), Winding-up and Restructuring Act (Canada) or Companies’ Creditors Arrangement Act (Canada) is filed by or against the Customer, or if a receiver or receiver manager is appointed for the Customer or a substantial part of the Customer’s property, (b) the Customer ceases or threatens to cease to carry on the business currently being carried on by it or disposes of all or substantially all of its property, (c) there is any change in control of the Customer without the prior written consent of AYE3D, (d) the Customer is dissolved, amalgamated or wound up, or (e) AYE3D believes in good faith that payment or the performance or observance of any covenant or obligation in this Agreement is impaired. In the event of a termination or cancellation, Customer shall be liable for (i) the unpaid portion of the purchase price, if any, (ii) the allocable portion of the price as determined by AYE3D for any partially completed Product, including reasonable overhead and profit, (iii) reasonable demobilization costs, and (iv) payments due to subcontractors, if any, which cannot be cancelled without any payment obligation or refunded.
FORCE MAJEURE / DELAYS.
If AYE3D is unable to perform, or suffers delay in performance, due to any cause beyond its reasonable control (regardless of whether the cause was foreseeable), including without limitation acts of God, epidemics, pandemics, public health emergencies, communicable disease outbreaks, famine, plague or other natural calamities, inclement or unusually severe weather conditions, strikes, labor shortage or disturbance, fire, accident, war or civil disturbance, delays of carriers, cyber-attacks, terrorist attacks, failure of normal sources of supply, acts or inaction of government including any legal prohibition on AYE3D’s ability to conduct the its business, including passing of a statute, decree, regulation or order by a relevant governmental or judicial authority prohibiting AYE3D from conducting its business, the time of performance will be extended by a period equal to the length of time it takes to overcome the effect of the event. AYE3D will notify Customer within a reasonable time after becoming aware of any such event.
CUSTOMER’S REQUIREMENTS.
AYE3D’s performance is contingent upon Customer timely complying with and fulfilling all of its obligations under this Agreement. These obligations include the Customer supplying all documents, permits and approvals needed for AYE3D to perform including, but not limited to, accurate technical information and data, drawing and document approvals, and all necessary commercial documentation. AYE3D may request a change order for an equitable adjustment in prices and times for performance, as well as to adjust for any additional costs or any delay resulting from the failure of Customer to meet these obligations or any other obligations in this Agreement.
INDEMNITY.
The Customer assumes liability for, and agrees to indemnify and save harmless AYE3D, its affiliates and subsidiaries, and their respective agents, employees, servants, shareholders, officers and directors from and against, any and all liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs, expenses and disbursements, including legal expenses, in connection with or arising from this Agreement or assumed or incurred, or asserted or imposed against, AYE3D in any way relating to or arising out of the ownership, possession, use, operation or condition of the Product or otherwise, including on account of death, damage to property or economic loss caused by or related to the Product or the use of it. The Customer will give AYE3D prompt notice of any claim or liability of which it becomes aware and for which it has provided an indemnity to AYE3D under this Agreement. The foregoing indemnity will continue in full force and effect despite the expiration or other termination of this Agreement.
12. LIMITED WARRANTY.
(a) Scope and Warranty Period. AYE3D warrants to Customer of the Product that the Product is free of defects in materials and workmanship under normal use for a period of one (1) year from the original date of Customer’s purchase of the Product (“Warranty Period”). The foregoing warranty is not transferrable by Customer (the “Limited Warranty”). All subsequent purchasers and users acquire the Product “as is” without benefit of the Limited Warranty. Where Customer purchased the Product through AYE3D’s website or other authorized online retailers the date of purchase is the date of the purchase invoice issued to Customer by AYE3D or such authorized online retailers by email. Where Customer purchased the Product from AYE3D or an authorized retailer at a physical location, the date of purchase is the date of the invoice issued to Customer at the physical location. No AYE3D distributor, reseller, agent or employee is authorized to make any modification, extension, or addition to this Limited Warranty. For Québec consumers, all provisions of this clause apply in addition to the legal warranty.
(b) Exercise of Warranty. If the Product is defective during the Warranty Period, Customer’s sole and exclusive remedy, and AYE3D’s sole obligation, will be, at AYE3D’s sole discretion, to: (i) repair the defective part of the Product at no cost to Customer with new or reconditions parts; (ii) replace the Product at no cost to Customer with a new, reconditioned or comparable Product; or (iii) provide a refund to Customer of the original purchase price paid for the Product. The Product or any parts thereof that are repaired or replaced during the Warranty Period are subject to this Limited Warranty, which will expire at the end of the original Warranty Period, except where prohibited by applicable law. To obtain warranty service, Customer shall: (1) contact AYE3D during the Warranty Period; (2) provide AYE3D with dated proof of original purchase from AYE3D or an authorized retailer; and (3) ship the Product to AYE3D by prepaid delivery and have packaged the device appropriately for safe shipment. For greater certainty, Customer is responsible for all costs associated with returning the Product to AYE3D.
(c) Exclusions from Warranty. This Limited Warranty does not apply to damage to, or defects or malfunctions in, the Product arising from or related to: (i) use of the Product not in accordance with this Agreement or the Product documentation provided, or otherwise made available, to Customer by or on behalf of AYE3D; (ii) natural wear and tear; (iii) modification of the Product by any person other than AYE3D or its authorized agents; (iv) storage of the Product in an improper environment; (v) use of the Product in combination with accessories, other products or equipment not authorized or supplied by AYE3D; (vi) events beyond AYE3D’s reasonable control; or (vii) any cause other than the intended normal use by AYE3D. No warranty is provided if the Product was not purchased from AYE3D or its authorized retailers. Customer agrees to be charged for non-warranty work at the minimum repair rate effective at the time the Product is returned to AYE3D. Customer accepts the Product subject to this Limited Warranty and all terms and conditions related thereto.
Unless AYE3D agrees otherwise in writing, Customer will be responsible for any costs associated with: (i) gaining access to the Product; (ii) removal, disassembly, replacement, installation, or reinstallation of any equipment, materials or structures to permit AYE3D to perform its warranty obligations; and (iii) damage to equipment components or parts resulting in whole or in part from non-compliance by the Customer with Section 10(b), or from their deteriorated condition.
(d) DISCLAIMER. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, THIS LIMITED WARRANTY IS THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND NO OTHER WARRANTIES, CONDITIONS OR GUARANTEES OF ANY KIND SHALL APPLY, WHETHER STATUTORY, WRITTEN, ORAL, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) WARRANTIES, CONDITIONS OR GUARANTEES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, QUALITY, DURABILITY, OR THE RESULTS THAT CUSTOMER MAY OBTAIN BY USING THE PRODUCT, ALL OF WHICH ARE DISCLAIMED. WHERE IMPLIED WARRANTIES CANNOT BE DISCLAIMED BY APPLICABLE LAW, SUCH IMPLIED WARRANTIES ARE LIMITED TO THE DURATION OF THIS LIMITED WARRANTY.
LIMITATION OF LIABILITY.
IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF BISEP, ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, LICENSORS, SUPPLIERS, DISTRIBUTORS, RESELLERS, AND SERVICE PROVIDERS (COLLECTIVELY, “BISEP” IN THIS PARAGRAPH) TO CUSTOMER AS A RESULT OF ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, FOR GREATER CERTAINTY, THE PRODUCT), WHETHER SUCH CLAIM IS BASED ON BREACH OF CONTRACT (INCLUDING UNDER AN INDEMNITY), TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, EXCEED THE ORIGINAL PURCHASE PRICE PAID BY CUSTOMER FOR THE PRODUCT. IN NO EVENT SHALL BISEP BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER INDIRECT DAMAGES, INCLUDING (WITHOUT LIMITATION) LOST PROFITS OR LOSS OF OPPORTUNITY, ARISING OUT OF OR RELATED TO THE PRODUCT, WHETHER THE ACTION IS IN CONTRACT (INCLUDING UNDER AN INDEMNITY) OR TORT (INCLUDING NEGLIGENCE) AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF BISEP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTHING IN THIS PARAGRAPH WILL OPERATE TO EXCLUDE OR RESTRICT BISEP’S LIABILITY (IF ANY) TO CUSTOMER FOR ANY MATTER FOR WHICH IT IS NOT PERMITTED BY APPLICABLE LAW TO EXCLUDE OR LIMIT ITS LIABILITY.
14. INTELLECTUAL PROPERTY. AYE3D shall retain all intellectual property rights in the Product, works, AYE3D’s documents, processes, AYE3D’s confidential information, and any design information and/or documents made by (or on behalf of) AYE3D. Upon receipt of all fees, expenses and Taxes due in respect of the Product, AYE3D grants to the Customer a non-transferable, non-exclusive, revocable (in the case of breach), royalty-free license to use the intellectual property in the Product and to copy, use and communicate AYE3D’s documents, as they relate to the Product, for the sole purpose of the operation and maintenance of the Product. A EULA will be sent with each confirmation of the order and with each product.
15. Restrictions. Customer shall not: (a) intentionally remove any copyright notices, proprietary markings, trademarks or trade names from the Licensed Product; (b) provide access to the Product to any party outside the Customer organisation; or (c) decompile, disassemble, reverse engineer the Product or otherwise attempt to ascertain the source code of the Product.
CHANGES IN EQUIPMENT AND SERVICES.
No change will be made to the scope of the Product unless Customer and AYE3D agree in writing to the change and any resulting price, schedule or other contractual modifications. If any change to any law, rule, regulation, order, code, standard or requirement impacts AYE3D’s obligations or performance under this Agreement, AYE3D shall be entitled to a change order for an equitable adjustment in the price and time of performance.
NON-WAIVER.
Any waiver by a party of strict compliance with this Agreement must be in writing, and any failure by the parties to require strict compliance in one instance will not waive its right to insist on strict compliance thereafter.
MODIFICATION OF TERMS.
This Agreement may only be modified by a written instrument signed by authorized representatives of both parties.
ASSIGNMENT.
Neither party may assign all or part of this Agreement, or any rights or obligations under this Agreement without the prior written consent of the other; but either party may assign its rights and obligations, without recourse or consent to, any parent, wholly owned subsidiary or affiliate.
APPLICABLE LAW AND JURISDICTION.
This Agreement is governed by and construed in accordance with the laws of the Province of Québec and the federal laws of Canada applicable therein, without regard to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is excluded. Each party agrees that claims and disputes arising out of this Agreement must be decided exclusively in a federal or provincial court of competent jurisdiction located in the province of Québec. Each party submits to the personal jurisdiction of such courts for the purpose of litigating any claims or disputes.
SEVERABILITY.
If any provision of this Agreement is held invalid, illegal or unenforceable, the remaining provisions will not in any way be affected or impaired. A court may modify the invalid, illegal or unenforceable provision to reflect, as closely as possible, the parties’ original intent.
SURVIVAL.
The Articles entitled “Customer Representations and Warranties”, “Title and Security Interest”, “Termination”, “Limited Warranty”, “Limitation of Liability”, “Indemnity” and “Intellectual Property”, in addition to any provisions of these Terms and Conditions which by their nature ought to survive, shall survive any termination, expiration or cancellation of this Agreement.
NOTICES.
Any notices required by or made pursuant to the Agreement must be in writing and either (a) delivered personally or by cornier; (b) sent by prepaid registered mail; or (c) transmitted by facsimile, e-mail or functionally equivalent electronic means of transmission, charges (if any) prepaid. Any notice must be sent to the intended recipient at the applicable address noted on the purchase order. Any notice delivered to the party to whom it is addressed will be deemed to have been given or made and received on the day it is delivered, provided that if that day is not a business day, then the notice will be deemed to have been given or made and received on the next business day. Any notice transmitted by facsimile, e-mail or other functionally equivalent electronic means of transmission will be deemed to have been given or made and received on the day on which it is transmitted.
24. Language of Terms. The parties hereto hereby declare that they have required that these terms and any document or notice related thereto be drafted in English. Les parties aux présentes ont expressément exigé que la présente convention soit rédigée en langue anglaise.