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Acceptance of Buyer's order is expressly conditional on assent to the terms and conditions set forth hereon and on any attachments
and they shall constitute the complete agreement between the parties. Buyer's acceptance of any products under this order shall
constitute acceptance of these terms and conditions and they shall be controlling in every case. If any of the provisions of Buyer's
order or other writings are ambiguous, in addition to, or in conflict with these terms and conditions, those ambiguous, additional or
conflicting terms and conditions are expressly rejected and the terms and conditions hereof shall govern. These terms and
conditions may not be varied or Buyer's order terminated in any manner, unless by a written agreement signed by an authorized
representative of each party.
1.PRICES AND OWNERSHIP OF TECHNICAL INFORMATION.
Prices for products are net to Avetrium Inc. and those as shown on the Avetrium Inc. Price Guide at the time of the order or by written quotation from Avetrium Inc.. New products may contain new or reconditioned components which shall comply with applicable Avetrium Inc. specifications. Buyer acquires no right, title or interest in any tooling, set-up or fitting-up drawings, design information, computer programming or invention resulting from this order. Prices quoted are valid for thirty (30) days from the date of this proposal.
2.DELIVERY SCHEDULES AND REVISIONS.
Buyer shall specify a firm shipment schedule subject to acceptance by Avetrium Inc.. At any point in performance, build-to-
stock products to be shipped in the next 60 days (120 days for build-to-order products) may not be canceled or
rescheduled. Build-to-stock products to be shipped beyond the 60-day period (120 days for build-to-order products) may
be canceled or rescheduled without penalty, except that for build-to-order products there may be cancellation costs relating
to outside vendor commitments and/or unique parts.
3.DELIVERY, FREIGHT AND RISK OF LOSS.
All prices are ExWorks Point of Shipment (Avetrium Inc.). Title in and the right of possession to products passes to Buyer
upon delivery by Avetrium Inc. to a carrier at point of shipment. Arrangement for insurance is the responsibility of the
Buyer. Avetrium Inc. standard packaging is suitable for domestic surface and air shipment. Packaging other than Avetrium standard is chargeable to Buyer. If shipping instructions are not furnished, Avetrium Inc. will ship via the most practical route considering cost and required delivery date. Buyer is responsible for all shipping, importation charges, duties, local taxes and transportation applicable to the delivery of products ordered to the end destination. Freight shall be prepaid and invoiced.
4.PAYMENT.
Upon approval of credit by Avetrium Inc., terms of payment are net thirty (30) days from date of invoice. Amounts not paid within said thirty (30) days are subject to a late payment charge at the rate of 1% per month; provided that in no case shall such charge exceed the maximum amount permitted by law. This late payment charge from previous month(s) shall be added to the balance and the late payment charge will be calculated on the total balance.
5.INSPECTION, ACCEPTANCE AND RETURN.
Buyer shall have thirty (7) days after the date of shipment of products to inspect the same and to notify Avetrium Inc. of any deficiency. Absent said notice, the products shall be deemed accepted and thereafter returnable only for warranty repair. Buyer may, during said thirty (7) day period, return deficient products to Avetrium Inc. where correction of deficiency reasonably requires return to factory. Prior to returning products Buyer must have been issued a Return Material Authorization number from Avetrium Inc.. Return shipping charges shall be collect and replacement or reshipment of products shall be as in the case of the original shipment. Product shall be packaged in the original shipping container and related packing material or equivalent. If not so packed, Avetrium Inc. may refuse acceptance.
6.SOFTWARE.
Software is licensed, not sold. No title in Software is transferred to Buyer. Buyer is licensed to use software with the associated Avetrium Inc. product only for Buyer's own internal business purposes and to make one copy of software for archival purposes only; provided that buyer reproduces the copyright notice and any other legend of ownership on each copy or partial copy. Buyer will not sublicense, assign or transfer the license for any software separately from the product(if bundled with hardware product); copy, disclose or otherwise provide any software to any third party; nor reverse assemble, reverse compile or otherwise translate any software. This license terminates when Buyer stops using the associated Avetrium Inc. product or if Buyer breaches any of its obligations under this license or the End User Licesne Agreement (EULA) contained in each software package, whichever event occurs first. Buyer's obligations under this license will survive termination or expiration of this order.
7.WARRANTY-LIMITATION.
Avetrium Inc. warranty is limited to the manufacturer's warranty.
8.DELAY, PERFORMANCE AND REMEDIES.
Delay of Avetrium Inc.'s performance arising from Government order or other requirements, war, acts of terrorism, civil
insurrection, riot, labor or transportation strikes, flood, fire, earthquake, volcanic eruption or Act of God, shortages of
materials or energy or any other causes out of the reasonable control of Avetrium Inc., shall not be deemed a breach of
the contract of sale and shipment dates shall be extended for the length of such delay.
9.PATENT INFRINGEMENT.
Should the products delivered by Avetrium Inc. hereunder become, or in Avetrium Inc.'s opinion be likely to become, the subject of a claim of infringement of any Canadian or United States patent, then Avetrium Inc. may at its option: i)procure for the Buyer the right to use products free of any liability for infringement, ii) replace such products with non infringing substitutes or modify such products to be non infringing or iii)refund the buyer's purchase price less a reasonable charge for use and accept the return of such products.
10. LIMITATION OF LIABILITY.
Neither party shall be liable for special, indirect, incidental or consequential damages sustained by the other, including those damages arising from or measured by lost revenues or profits under its contracts with third parties even if such party has been advised of the possibility of such damages.
11. COSTS AND ATTORNEY'S FEES.
In the event of default by either party to this Agreement, the prevailing party shall be entitled to reimbursement for all costs and expenses, including reasonable attorney's fees, incurred by the prevailing party in exercising any of its rights or remedies hereunder or enforcing any of the terms, conditions or provisions hereof.
12. TAXES.
To the extent attributable to the products furnished, there shall be added to the charges provided for herein, amounts equal to any taxes, however designated, which are paid or payable by Avetrium Inc. and based on the charges made or value of products furnished or gross revenues generated, exclusive, however, of taxes based on net income.
13. INSOLVENCY.
Avetrium Inc. shall have the right to suspend or cancel this Agreement at any time upon Buyer making an assignment for the benefit of creditors or becoming bankrupt or insolvent, or upon a petition being filed in a court of competent jurisdiction proposing the appointment of a receiver or that Buyer be adjudicated bankrupt or insolvent or reorganized under the provisions of any applicable bankruptcy or insolvency act.
14. SELLER'S REMEDIES.
In addition to the rights and remedies reserved herein, Avetrium Inc. shall have all rights and remedies conferred by law and shall not be required to proceed with performance of the Agreement arising herein if Buyer is in default to Avetrium Inc. under this or any other contract.
15. GOVERNING LAW, SEVERABILITY.
The parties agree that the laws of the Province of Ontario, Canada shall govern the validity of this Agreement, the construction of its terms and the interpretation of the rights and duties of the parties. In the event that any one or more of the provisions contained in this Agreement shall for any reasons be held to be invalid, illegal or unenforceable, this shall not affect any other provision of this Agreement. Those provisions considered invalid, illegal or unenforceable shall then be considered as having never been an integral part of this Agreement.
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