1.
These Terms
and Conditions (the “Terms”) shall
apply to sales of any goods and/or services (collectively, the “Goods”) by Unified Systems Inc. (the “Seller”) to you (the “Buyer”) to the exclusion of all other
terms and conditions referred to, offered, or relied on by the Buyer, whether
in negotiation or at any stage in the dealings between the parties, including
any standard or printed terms tendered by the Buyer, unless the Buyer
specifically states in writing, separately from such terms, that it wishes such
terms to apply and this has been acknowledged and agreed to in advance by the
Seller in writing.
2.
Any variation
to these Terms (including any special terms and conditions agreed between the
parties) shall be inapplicable unless agreed to in writing by the Seller.
1.
The price
shall be the recommended retail price, unless otherwise agreed to in writing
between the parties (the “Price”).
The Price is exclusive of applicable taxes or any other applicable costs.
2.
Credit terms
may be offered to the Buyer, subject to satisfactory credit vetting of the
Buyer by the Seller.
3.
Any offer of
credit will be at the sole discretion of the Seller.
4.
Where credit
is offered, payment of the Price, applicable taxes, and any other applicable
costs shall be due within 30 days of the date of the invoice supplied by the
Seller, unless otherwise agreed in writing (the “Credit Date”). In cases
where credit is not offered, payment of the Price will be required before
release or provision of any Goods by the Seller (the “Non-Credit Date”, the Credit Date or the Non-Credit Date, as the
case may be, the “Payment Date”)..
5.
The Seller
shall be entitled to charge interest on overdue invoices from the Payment Date
until the date payment is received by the Buyer, at an annual interest rate of
24%, compounded monthly.
6.
If payment of
the Price or any part thereof is not made by the Payment Date, the Seller shall
be entitled to:
a.
Require
payment in advance of delivery in relation to any Goods not previously
delivered;
b.
Refuse to make
delivery of any undelivered Goods without incurring any liability whatsoever to
the Buyer or any other party for non-delivery or any delay in delivery; and
c.
Report
payments not made by the Payment Date to a Canadian credit bureau, including
any combination of Equifax Canada and TransUnion Canada.
1.
Any
description given or applied to the Goods is given by way of identification
only and the use of such description shall not constitute a sale by
description. For the avoidance of doubt, the Buyer hereby affirms that it does
not in any way rely on any description when entering into the contract for the
provision of Goods by the Seller.
1.
Where a sample
of the Goods is shown to and inspected by the Buyer, the parties hereto accept
that such a sample is representative in nature and that the Goods received may
differ slightly as a result of the manufacturing process.
1.
Unless
otherwise agreed in writing, delivery of the Goods shall take place at the
address specified by the Buyer on, or as close as possible to, the date
required by the Buyer. The Buyer shall make all arrangements necessary to take
delivery of the Goods whenever they are tendered for delivery.
2.
If the Seller
is unable to deliver the Goods because of actions or circumstances under the
control of the Buyer, then the Seller shall be entitled to place the Goods in
storage until such times as delivery may be affected and the Buyer shall be
liable for any expense associated with such storage and any such associated
expense must be paid by the Buyer prior to delivery of the Goods.
3.
Any damages,
shortages, over deliveries and duplicated orders should be reported to the
Seller within 14 days of signed receipt to enable replacement or refund if appropriate
in the circumstances as determined by the Seller in its sole discretion, whose
decision shall be final and binding.
1.
Risk in the
Goods shall pass to the Buyer upon receipt of the Goods. Where the Buyer
chooses to collect the Goods itself, risk will pass when the Goods are
entrusted to it or set aside for its collection, whichever happens first.
1.
Title in the
Goods shall not pass to the Buyer until the Seller has been paid in full for
the Goods, including any amounts owed pursuant to these Terms.
2.
On passing of
the title in the Goods to the Buyer, the Seller shall assign to the Buyer any assignable
rights the Seller may have under any warranty extended by a third party
covering the subject Goods sold by the Seller. Materials or Goods manufactured
by others and resold by the Seller do not carry any additional warranty by the
Seller.
1.
Subject to
applicable laws, all Goods are sold on a firm sale basis. The Seller will not accept
return of, and shall not refund the Buyer for, any purchased Goods not required
or sold by the Buyer, unless otherwise agreed, in which case the following
terms apply.
2.
Any returns
must be authorized in writing by a representative of the Seller before any
credit will be given. Any such return or credit given shall be authorized by a
representative of the Seller at the Seller’s sole discretion, whose discretion
shall be final and binding.
3.
Where the
Seller agrees to accept the return of Goods that are not damaged, the Buyer
will be responsible for the cost of carriage and will ensure that the returned
Goods are carefully packaged to avoid any damage in transit, and the Buyer
remains liable for the returned Goods until such a time as they are accepted by
the Seller. The Seller will not be obliged to accept any Goods that are damaged
in any way. The Seller will only accept returns that appear in the Seller’s
current sales record.
4.
Credit of
amounts due or paid will only be given for Goods that are in saleable condition,
as determined by the Seller in its sole discretion, whose discretion shall be
final and binding.
1.
The Seller
shall not be liable for any loss or damage suffered by the Buyer in excess of
the total Price paid by the Buyer to the Seller for Goods.
2.
In no event
shall the Seller or its affiliates, employees, agents, or suppliers be liable
for any special, incidental, indirect, punitive, reliance, cover or
consequential damages whatsoever (including but not limited to, damages for:
loss of profits; loss of savings; loss of confidential or other information;
business interruption; personal injury; loss of privacy; loss or damage of or
to property, systems, records, or data; failure to meet any duty including of
good faith or of reasonable care; negligence; and any other pecuniary or other
loss whatsoever) incurred or suffered by the Buyer or any other person arising
out of or in any way related to the use of or inability to use the Goods
provided, the provision of or failure to provide support services with respect
to the Goods, third party claims, liabilities related to an individual’s
privacy right, or otherwise under or in connection with any provision of the
Goods, even in the event of the fault, tort (including negligence), strict
liability, breach of warranty of the Seller or its affiliates, employees,
agents, or suppliers, even if the Seller or its affiliates, employees, agents,
or suppliers have been advised of the possibility of such damages. The Buyer is
solely responsible and liable for verifying the security, accuracy and adequacy
of any Goods, and for any reliance thereon.
3.
To the
greatest extent permissible by law, the Goods are provided on an "As
Is" basis without a warranty of any kind, including without limitation the
warranties of merchantability, fitness for a particular purpose and non-
infringement. The entire risk as to the quality and performance of the Goods is
borne by the Buyer. Should the Goods prove ineffective, the Buyer and not the
Seller assumes the entire cost of service and/or repair, as the case may be.
X.
INTELLECTUAL
PROPERTY RIGHTS
1.
All intellectual
property rights, including, without limitation, moral rights, produced from or
arising as a result of the performance of this Agreement shall, so far as not
already vested, become the absolute property of the Seller, and the Buyer shall
do all that is reasonably necessary to ensure that such rights vest in the Seller
by the execution of appropriate instruments or the making of agreements with
third parties.
XI.
FORCE
MAJEURE
1.
The Seller
shall not be liable for any delay or failure to perform any of its obligations hereunder
if the delay or failure results from events or circumstances outside its
reasonable control, including but not limited to acts of God, strikes, disease,
pandemic, epidemic, lock outs, accidents, war, fire, governmental acts and/or
regulations, breakdown of plant or machinery or shortage or unavailability of
raw materials from a natural source of supply, and the Seller shall be entitled
to a reasonable extension of its obligations without any additional
compensation to the Buyer for any such extension. If the delay persists for
such time as the Seller considers unreasonable in its sole discretion, it may,
without liability on its part, terminate the contract without penalty.
XII.
RELATIONSHIP
OF PARTIES
1.
Nothing
contained in these Terms shall be construed as establishing or implying any
partnership or joint venture between the parties and nothing in these Terms
shall be deemed to construe either of the parties as the agent, employee, or
employer of the other.
XIII.
ASSIGNMENT
AND SUB-CONTRACTING
1.
The contract
between the Buyer and Seller for the sale of Goods shall not be assigned or
transferred, nor the performance of any obligation sub-contracted, in either
case by the Buyer, without the prior written consent of the Seller.
XIV.
WAIVER
1.
The failure by
the Seller to enforce at any time or for any period any one or more of the
Terms herein shall not be a waiver of them or of the right at any time
subsequently to enforce all Terms of this Agreement and no waiver of any right
by the Seller shall be effective except where expressly stated in writing and
only to the extent stated therein.
XV.
SEVERABILITY
1.
If any term or
provision of these Terms and Conditions is held invalid, illegal or
unenforceable for any reason by any court of competent jurisdiction such
provision shall be severed and the remainder of the provisions hereof shall
continue in full force and effect as if these Terms had been agreed with the
invalid, illegal or unenforceable provision eliminated.
XVI.
disputes
and applicable laws
1.
This Agreement
shall be governed by and construed in accordance with the laws of British
Colombia and the laws of Canada applicable therein.
2.
Any dispute or
controversy occurring between the parties hereto relating to the interpretation
or implementation of any of the provisions of these Terms shall be resolved by
arbitration. Such arbitration shall be
conducted by a single arbitrator appointed by agreement between the parties,
or, in default of agreement, such arbitrator shall be appointed in accordance
with the provisions of the Arbitration
Act or any re-enactment or amendment thereof. Any arbitration shall be held in the City of
Vancouver. The procedure to be followed
shall be agreed by the parties or, in default of agreement, determined by the
arbitrator. The decision arrived at by
the arbitrator shall be final and binding and no appeal shall lie therefrom.