Standard Terms and Conditions (incl. Warranty) >

Standard Terms and Conditions (incl. Warranty)

TERMS AND CONDITIONS

NOTICE:   Unless otherwise provided in the quotation with respect to a particular order, all sales are made and all purchase orders are accepted subject to these Terms and Conditions. These Terms and Conditions shall be deemed to be an integral part of all contracts and agreements by PRAGMA Solutions NDT inc. (the “Seller”), operating under the name of Pragma in the NDT field.

1. Definitions

1.1    Unless otherwise agreed to by the Seller, the following terms shall be defined as follows:

1.2    “Business day” means any day except any Saturday, any Sunday and any day which is a provincial holiday in the province of Quebec (Canada).

1.3    “Buyer” means the entity to which “Seller” is providing Products under this Contract.

1.4    “Contract” means the documents that comprise the agreement between Buyer and Seller for the sale of Products, including these Terms and Conditions, the final quotation, the agreed scope(s) of work, and Seller’s order acknowledgement.

1.5    “Day” means a period of 24 hours.

1.6    “Order” means a purchase order accepted with a written confirmation of the Seller.

1.7    “Product(s)” means all equipment, parts, materials, supplies, software, and other goods that the Seller has agreed to supply to Buyer under the Contract.

1.8    ”Quotation” : A formal written statement (in PDF file) sent by the Seller setting out the price and other terms for the selling of Products and which possess unique reference starting by the letters “SO”.

1.9    “Seller” means PRAGMA Solutions CND Inc, a Canadian corporation having its head office at 6500, Rue Zéphirin-Paquet, Suite 300, Québec City, Québec G2C 0M3.

1.10    “Terms and Conditions” means these Terms and Conditions for the sale of Products.

2. Quote and Acceptance of a Purchase Order

2.1. Quoted prices are valid for thirty (30) Days unless noted otherwise. All quotations are in U.S. Dollars, unless noted otherwise. The Buyer’s purchase order must respect the terms of the last valid quote sent by the Seller.

2.2. The Seller does not automatically accept a purchase order from the Buyer by its mere reception. Purchase orders will only be accepted upon written confirmation by the Seller. The Seller reserves itself the right to reject a purchase order for any reason. If a purchase order is rejected, the Buyer will be notified in writing. If the Buyer has not received a written confirmation of acceptance within five (5) Business days of the Seller’s reception of purchase order, the purchase order will be deemed rejected by the Seller.

3. Payment

3.1. Payments will be made by Buyer to Seller in accordance with the specifications described in the Order. If the payment specifications are not described in the Order, Buyer will pay to Seller:

• 3.1.1 within five (5) Days of the Seller’s acceptance of the Order, a non-refundable deposit equal to half of the Order total value, and;
• 3.1.2. within five (5) Days of the Seller’s written confirmation that the Products are ready to be shipped, a final payment for the remaining half of the Order total value.

 3.2. The Seller will keep the ownership of the Products until all payments provided in the Order are made by the Buyer.

3.3. The financial terms are subject to the Buyer maintaining credit arrangements satisfactory to the Seller. Otherwise, Orders are payable in full, within five (5) Days of the Seller’s acceptance of the purchase order.

3.4. The Seller reserves itself the right, in its sole and absolute discretion, to request credit background checks on the Buyer, and upon findings may request any upfront payment prior to the acceptance of the Buyer’s purchase order.

3.5. In the event of a late payment or a non-payment:

• 3.5.1. the Seller may elect to suspend all current Orders, without prejudice to any other rights or remedies, and;

3.5.2. the Seller reserves itself the right to request for partial or full payment or, shall be entitled at its sole discretion, to terminate this Contract. Upon receiving a written notice of termination, the Buyer will at its own expenses and within two (2) Business days, return all Products received in connection with the Order to the Seller’s address. In this event, any deposit or payment received by the Seller before its repossession of the Products will be kept by the Seller, and;

3.5.3. late payments are subject to interest at a rate of one percent (1.0%) per month on the unpaid balance or such lesser rates as may be permitted under applicable law, and;

3.5.4. any amount owed by the Buyer for any previous deliveries or for any other reason will become immediately payable, and;

3.5.5. the Seller will terminate any intellectual property license associated with Products.

4. Prices and Taxes

4.1 Prices are subject to change for deliveries scheduled past three (3) months.

4.2. Prices exclude, and Buyer is responsible for, all sales, use, foreign withholding and other similar taxes. The Seller will invoice the Buyer for all applicable taxes, unless Buyer supplies an appropriate tax exemption certificate in a form satisfactory to the Seller.

4.3. Prices exclude all transportation, handling charges, duties, custom fees and deposits.

5. Delivery

5.1. All shipments will be made following the Buyer’s instructions and at the Buyer’s risk. If the Products are lost in transit, all unpaid amounts will automatically be due to the Seller.

5.2. The Buyer cannot unduly delay a shipment when the Buyer has been advised that the Products are ready to be shipped. In such circumstance, the Seller will have the right to either:

• 5.2.1 Hire a transporter of its choice to deliver the Products to the Buyer, still at the Buyer’s risk, or;
• 5.2.2 Terminate this Contact and the obligations of the Buyer described in section 3.5 for late payments will apply.

5.3. The Seller will use reasonable commercial efforts to ship by the dates requested by the Buyer. The Seller will have no liability for any shipping delay. Unless otherwise specified in writing by the Buyer, partial shipments are allowed.

5.4. In the event of any delay due to force majeure, unusual delay from the suppliers of the Seller or in the Seller’s production activities, delays of payments from the Buyer, etc., the delivery date provided in the Order will be extended by the time period lost by the delay, and the Buyer will be informed as soon as possible.

5.5. If delivery is delayed by or because of the Buyer for any reason, the Products will be packed and stored at the Buyer’s risk and expense and the obligations of the Buyer described in section 3.5 for late payments will apply.

6. No Return, No Exchange, No Refund, Non-Cancellation

6.1. The Orders are non-cancellable and unless otherwise agreed by the Seller, no return, no exchange and no refund will be made.

6.2. The Buyer will have five (5) Days from its reception of the Products to validate that the delivered Products are in conformity with the Order. If the Products are not in conformity with the Order, the Buyer must send a written notice with proofs to the Seller within the prescribed delay. If in the Seller’s sole opinion, the non-conformity is proven true, the Seller will provide the Buyer with a Return of Merchandise Authorization (RMA) number and the delivered Products will be exchanged or repaired for the Products described in the Order, within ten (10) Days, if no unexpected delay described in section 5.4, of the Seller’s reception of the originally sent Products, in their original condition, in their original packaging and with a copy of the original packing slip. All shipping charges, costs or fees will be bear by the Buyer.

6.3. If the Buyer does not report the non-conformity within the prescribed delay of section 4.2, the Buyer is presumed to have accepted the Products as sent and if applicable, payments will be due.

7. Limited Warranty

7.1. No Products will be returned to the Seller under this section, unless a Return of Merchandise Authorization (RMA) number is provided by the Seller to the Buyer. All shipping charges, costs or fees will be bear by the Buyer.

7.2. Products are warranted by the Seller against defects in workmanship and material under normal use for the warranty period specified by the Seller in the purchase order. If the warranty period is not described in the purchase order the warranty period will extend to :

• 7.2.1. A maximum of one (1) year from the date of delivery for any electronic Products including instruments and computers or;
• 7.2.2. A maximum of three (3) months from the date of delivery for transducers, cable adaptors, wedges, and other accessories or;

7.3. Any software of the Seller is provided with a warranty of functionality and stability. Should the Buyer discover an important coding error in a program which leads to a flaw in the system preventing it to operate in the expected way (a “Bug”), the Seller will correct the Bug within 2 weeks from the moment of its awareness by the Seller.

7.4. Buyer might lose the warranty or have it suspended and/or any technical support from the Seller’s team if invoices are not fully paid in time.

7.5. Products that fail during the warranty period because of a defect in workmanship or material will be repaired in a timely manner, provided that Buyer returns the Product to the Seller in its original packaging and with a copy of the original packing slip.

7.6. This limited warranty extends to the Buyer only and is contingent on the proper use and care in a safe and suitable site, under normal “wear and tear” of the product and PROPER maintenance. THE PROVISIONS OF THIS WARRANTY ARE IN LIEU OF ANY OTHER WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY, WRITTEN OR ORAL (INCLUDING ANY LIABILITY ARISING OUT OF THE MANUFACTURE), FOR THE SALE OR SUPPLY OF THE PRODUCTS OR THEIR USE, WHETHER BASED UPON WARRANTY, CONTRACT, NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE, AND SHALL NOT EXCEED THE ORIGINAL COST TO BUYER OF THE PRODUCT.

8. Limitation of Liability

8.1. The Seller’s maximum liability, whether in contract, indemnity, warranty, tort, or otherwise, arising out of OR in connection with the Product(s) or this CONTRACT shall not exceed the price paid by Buyer for the applicable Product(s) that gave rise to any claim.

8.2. IN NO EVENT SHALL THE SELLER BE LIABLE TO BUYER OR ANY OTHER PERSON OR ENTITY FOR UNINTENDED, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, USE OR DATA) ARISING OUT OF OR OTHERWISE RELATING TO THE USE OR PERFORMANCE OF THE PRODUCTS OR ANY COMPONENTS OR PARTS THEREOF.

8.3. Products sold by the Seller are not authorized to be used in life support equipment for applications in which the failure or malfunction of the goods would create a situation in which personal injury or death could occur. Any such use or sale of Product sold by the Seller is at the sole risk of Buyer, regardless as to whether the Seller knows of such use, and Buyer agrees to indemnify and defend the Seller against, and hold the Seller harmless from, all damages, costs, and expenses, including without limitation, attorneys’ fees and costs relating to any lawsuit, arising out of such use or sale

8.4. All of the Seller’s liability under this Contract shall terminate upon the expiration of the applicable warranty period, provided that Buyer may enforce a claim of such liability accruing during the applicable warranty period by an action timely commenced in accordance with the applicable statute, but in no event greater than one (1) year after the expiration of such warranty period.

8.5. Buyer shall indemnify, defend and hold the Seller harmless from and against any and all claims made by any subsequent purchasers of Products against the Seller for loss or damage arising out of or in connection with the Products provided under this Contract.

9. Confidentiality

9.1. The Buyer shall (i) keep confidential all intellectual property, data, information, products, designs, know-how, programs, or intelligence, whether in machine readable or visually readable form, business information, potential clients, market data and other business analysis and any other information, which is confidential and proprietary to the Seller (“Confidential Information”). Any other information that could reasonably be considered private information by a reasonable person is also a Confidential Information. (ii) use Confidential Information only in connection with the use of Products, (iii) not transfer of disclose Confidential Information to anyone other than its employees and consultants who require disclosure in connection with that party’s use of Products and who are subject to confidentiality obligations in substance at least as strict as these, (iv) not to copy Confidential Information except as required for the use of maintenance of Products, and (v) except as permitted herein, not commercially exploit Confidential Information without the express written consent of the disclosing party.

9.2. The Seller acknowledges that all financial terms of the Order are Confidential Information.

10. Intellectual Property

10.1. Seller grants Buyer a non-exclusive license to use any software, hardware, firmware, programs and any other technology supplied by Seller that is necessary to operate and use Product(s), but only to the extent necessary to use Products for the purposes for which they are provided.

10.2. Buyer shall not, directly or indirectly, modify the features or functionality of, copy or create derivative works using all or any portion of, analyze or remove semiconductor components from, decompile, or otherwise reverse engineer or attempt to reverse engineer or derive source code, techniques, algorithms or processes from the Products or permit or encourage any third-party to do so.

10.3. Buyer agrees that no intellectual property rights of any kind owned by Seller or its suppliers are transferred to Buyer under this Contract, unless otherwise agreed to by the Seller in writing.

10.4. All hardware Products that require software to operate will receive a temporary non-exclusive software license which will cover the time period equal to the delay prescribed in section 4.2. Following the delay prescribed in section 4.2 and if all due payments have been made, the Seller will grant a permanent non-exclusive software license to the Buyer for its use of the Products. If the Products sold by the Seller is only a software, the Seller will grant a non-exclusive license which will stay valid for the time period agreed between the parties.

10.5 Software provided by Seller to Buyer may contain third-party software, including but not limited to, “open source” software. Buyer shall not modify or combine Products and/or any third-party software in any manner that could cause, or could be interpreted or asserted to cause, the Products or any modifications thereto to become subject to the terms of any license applicable to third-party software.

11. Governing Law

This agreement is governed by and construed in accordance with the substantive laws of the Province de Québec, Canada (without regard to its principles of conflict of laws). Jurisdiction and venue for all purposes under this agreement shall be the Province de Québec and the parties hereby consent to such jurisdiction and venue. The United Nations convention on the International Sale of Goods shall not apply to this agreement. For the purposes hereof, the parties elect domicile in the judicial district of Quebec City.

12. General Provisions

12.1. This Contract is the complete and exclusive statement of the agreement between the parties and supersedes any previous communications, representations, or agreements by either party whether verbal or written, including any terms and conditions printed on Buyer’s order, unless specific terms were included in the quotation.

12.2. Any modification to this agreement must be in writing and signed by an authorized representative of Seller and Buyer.

12.3. Neither party shall be liable for any delay or failure to take any action required under this agreement due to any causes beyond its reasonable control.

12.4. In the event that any provision of this agreement is deemed by a Court of competent jurisdiction to be void, illegal, invalid, unenforceable or inadmissible for any reason whatsoever, that provision shall be severed from this agreement and the remaining provisions will continue to be valid, legal, enforceable, binding and effective upon the parties hereto and shall be construed as if this agreement had been executed without such severed provision.

12.5. Neither party may assign this agreement without the prior written consent of the other party.

12.6. Les parties acceptent que ce Contrat ait été rédigé en anglais. The parties agrees that this Contract has been drafted in English.