INDROCORP TECHNOLOGIES INC.
Terms and Conditions of Sale
1. SCOPE AND ACCEPTANCE
The terms and conditions of sale contained herein (the “T&Cs”) shall apply to all quotations and sales made by Indrocorp Technologies Inc. (“Indro” or the “Seller”), to all purchase order (“POs“, each a “PO”) submitted by the purchaser (the “Customer”) and accepted by Indro for the sale and supply of products and services identified in the POs (the “Products” and the “Services”, respectively). Unless expressly provided otherwise in writing and signed by both parties (including a services agreement or other written agreement between the parties entered into prior to the date of the first PO submitted by the Customer), only the T&Cs, the POs, and any other documents expressly identified on the POs as a contract document or affixed to the POs shall be considered contract documents and binding on the parties (collectively, the “Agreement”). To the extent there is any inconsistency between the T&Cs and the other contract documents, the T&Cs shall control unless otherwise expressly agreed to in writing by the parties.
The Agreement becomes a valid and binding obligation of Indro and the Customer on the earlier of: (a) Indro’s written acceptance of a PO submitted by the Customer, (b) any written indication or confirmative action by the Customer of its acceptance of the T&Cs.
Where computer program, software and/or firmware are provided by Indro to the Customer (collectively, the “Software”), whether or not in combination with the Products, the Customer acknowledges that use of the Software may be governed by additional software license terms and conditions of Indro or its supplier (the “Additional Software Terms”). Indro will provide to the Customer the Additional Software Terms upon provision of the Software to the Customer. The Additional Software Terms are in addition to, and are not in lieu of, the terms and conditions herein. Except as may be otherwise provided in the Additional Software Terms, (a) the Customer shall not assign, transfer, sub-license or distribute any right in the Software, copy (except for one copy for backup purposes), decompile, reverse engineer or disassemble, modify or transmit the Software, (b) the Customer shall not copy or distribute any documentation accompanying the Software, and (c) the Software (including any copy or modification of it) is and will remain the sole and exclusive property of Indro or its suppliers.
3. FEES AND TAXES
Indro will bill the Customer for, and the Customer shall pay, the price and all other charges specified in the Agreement (the “Fees”) for the supply of the Products and the Software and the provision of the Services by or on behalf of Indro. The Fees are subject to change at any time prior to Indro’s acceptance of the applicable PO. Unless expressly stated otherwise in the Agreement, the Fees exclude all governmental or brokerage taxes, duties, customs, fees, charges or assessments (collectively, “Taxes”). Indro may elect to add any Taxes to the invoice amount payable to Indro by the Customer. In the event Indro is required to pay any Taxes under applicable laws, the Customer shall reimburse Indro immediately upon request from Indro. The Customer shall provide Indro with documentation acceptable to Indro of any exemptions claimed from Taxes in advance.
The Customer shall pay the amount specified in each invoice from Indro in full on or before the due date shown on the invoice or, if no due date is shown, within 30 days of the date of the invoice. Any amount not received by Indro when due shall bear interest at the rate of 2% per month (24% per year), or the maximum rate of interest that applicable law allows, whichever is less, until fully paid, including any interest due. The Customer agrees to pay all costs of collection resulting from any default by the Customer of the Agreement. Unless otherwise agreed in writing by the parties, all payments due to Indro from the Customer shall be in the lawful currency of Canada.
5. DELIVERY, TITLE AND RISK
Any PO submitted by the Customer is subject to acceptance by Indro. Indro reserves the right to reject any PO in full or in part. POs accepted by Indro are non-cancelable by the Customer except upon Indro’s written agreement, which shall only be considered on a case by case basis.
Any delivery dates or performance dates quoted by Indro are estimates only. If, at any time prior to shipment or performance (either complete or partial), Indro, in its sole discretion, deems the Customer’s financial condition to be unsatisfactory, Indro may: (a) delay or postpone delivery of the Products or performance of the Services, (b) cancel the applicable PO, or (c) request payment of applicable Fees and Taxes in full or other security satisfactory to Indro from the Customer prior to shipment of the Products or performance of the Services.
Unless otherwise agreed to in writing by Indro, delivery of the Products shall be Ex-Works (Incoterms 2020) at Indro’s facility. At the Customer’s option, Indro will ship the Products to the Customer at the shipping address stated on the applicable PO by any commercially reasonable means, provided that Indro has the option of selecting the particular route and carrier for shipment of the Products to the Customer, unless specified by the Customer. The Customer shall bear all risk of loss or damage in transit. All freight, insurance, tariffs, freight forwarding, customs, cartage and other transportation or incidental charges shall be borne by the Customer.
Title to and property in the Products (excluding any Software and underlying intellectual property) will pass to the Customer on full payment to Indro of the applicable Fees and Taxes. If payment in full for a Product is not made by the Customer, Indro shall have the right to request the return of the Product. Until title to and property in the Products (excluding any Software) has passed to the Customer, the Customer will not allow any installation or servicing of, or repairs, moves, additions or changes to, the Products by any person not authorized by Indro. All right, title and interest in and to the Software and any and all intellectual property underlying the Products are and will remain the property of Indro and/or its suppliers.
6. INSPECTION AND ACCEPTANCE
Immediately upon the Customer’s receipt of the Products delivered or Services performed, the Customer shall inspect the same and shall notify Indro in writing of any claims for shortages or non-conformance (including defective and damaged Products or Services). The Customer shall hold any non-conforming Products for Indro’s written instructions concerning disposition. Failure to give written notice of any such non-conformance within 10 days after the earliest of: (a) receipt of the applicable Products or performance of the applicable Services, (b) express oral or written acceptance by the Customer of such Products or Services, or (c) payment for such Products or Services, shall conclusively: (x) establish the Customer’s acceptance of the Products or Services, (y) release Indro from any and all liability therefor, and (z) waive the Customer’s right to seek damages or other remedies for any non-conforming Products or Services. The Customer shall bear the expenses of inspection under all circumstances.
Specifications for the Products shall be Indro’s specifications, except if particular specifications are given by the Customer and accepted by Indro in accordance with this Section (collectively, the “Specifications”). Except as otherwise expressly agreed in writing by Indro, Indro reserves the right to change at any time the specifications of any Product (including all statements and data appearing in Indro’s catalogues, data sheets and advertisements) without notice.
8. WARRANTIES AND DISCLAIMERS
Subject to the terms hereof, Indro warrants that the Products will conform to the Specifications for a period of 12 months from the date of delivery of the applicable Products (the “Warranty Period”). Indro’s warranty obligations apply to Indro’s manufactured materials only and do not cover any third party accessories. If any non-conformance of the Products occur during the Warranty Period, the Customer shall promptly notify Indro and if Indro determines that Products are non-confirming, it will repair, or at its option, replace the Products or affected parts, using new or, at its option, used or refurbished parts, and will provide all maintenance releases and patches issued at no cost to the Customer. Indro will provide services under the warranty after the Warranty Period, only if the Customer notifies Indro of the warranty claim before the end of the Warranty Period. Indro shall have no obligation to provide any services under the warranty if any payments due to Indro have not been made in full by the Customer.
The warranty described in the foregoing paragraph shall not apply if the non-conformance is a result of: (a) the Products being abused or submitted to abnormal conditions (mechanical, electrical or thermal) during installation, use, repair or storage; (b) usage by the Customer that is not in accordance with the Agreement or the applicable Specifications including, without limitation, using the Products in an environment requiring a robustness that is not documented in the applicable Specification; (c) any other reason not attributable to Indro.
Except as expressly provided in the Agreement, Indro hereby expressly disclaims all representations, warranty and condition, express or implied, including the implied warranties and conditions of merchantability, merchantable quality, suitability or fitness for any particular purpose, with respect to the Products, Software and Services. The Customer agrees that the remedies available under this section are the sole and exclusive remedies for breach of any warranty provided in the Agreement.
9. CUSTOMER RESPONSIBILITY
It is the responsibility of the Customer to: (a) comply with all laws applicable to its purchase, installation and use of the Products; (b) follow all safety standards and ensure that the Products are maintained and operated in a safe manner and suitable environment, in accordance with the Specifications and any other standards or requirements prescribed by Indro from time to time; (c) ensure that personnel operating the Products are adequately trained and comply with all applicable laws; (d) not modify or change the Products or remove or add components to the Products without Indro’s written approval. It is the Customer’s sole responsibility to ascertain that the Products and Services provided by Indro to the Customer and the subsequent installation and use of the Products and Services are in accordance with applicable laws.
10. LIMITATION OF LIABILITY
The aggregate liability of Indro or its affiliates to the Customer for any cause of action relating to or arising out of the Agreement, whether in contract, tort, under statute or otherwise, shall not exceed the Fees allocable to the Products, Software and/or Services which give rise to the claims and actually paid by the Customer to Indro. The Customer shall inform Indro of any breach and afford Indro reasonable opportunity to correct the breach. Except for the indemnity obligations under section 11 and breach of either party’s intellectual property rights or section 14, neither party shall be liable to the other party for any damages for the loss of profits or business, loss or damage to data, or failure to realize expected savings, or for any punitive, consequential, incidental or indirect damages, related to the use of or inability to use the Products or the provision of the Services, even if the party could reasonably foresee or has been advised of the possibility of such damages.
To the fullest extent permitted by law, the Customer agrees to defend, indemnify, and hold harmless Indro and its directors, officers, employees and agents from and against any and all liability, losses, costs (including costs of litigation or other dispute resolution and legal fees), claims and causes of action in favor of any and all persons arising out of, resulting from, or in any way attributable to the negligent act or action, omission or failure to act on the part of the Customer or any parties the Customer is responsible at law.
In the event that a third party makes a claim alleging that any of the Products or Software provided by Indro to the Customer infringes such third party’s intellectual property rights (an “IP Claim”), Indro will undertakes at its option to either defend the IP Claim or seek a compromise; or indemnify the Customer if an unfavorable and final judgment is rendered against the Customer. If an unfavorable and final judgment is rendered against Indro, it shall at its option, take out a license from such third party or modify the Product or Software in such a way as to avoid infringement. If such a solution shall be impracticable for economic and/or technical reasons, Indro will accept the return of the Product or Software and reimburse the Customer up to a maximum equal to the Fees paid by the Customer for the Product or Software deemed to infringe. The preceding indemnification shall only be due by Indro if the Customer promptly notifies Indro in writing of the IP Claim and upon Indro’s request, the Customer allows Indro to control and co-operates with Indro in the defense and any related settlement action.
Indro shall have no liability under the foregoing paragraph for any IP Claim where: (a) such IP Claim would have been avoided but for modifications of the Products or Software not authorized by Indro; (b) such IP Claim would have been avoided but for the combination or use of the Products or Software (or portions thereof) with other products, software, materials not supplied or specified in writing by Indro; (c) the Products or Software was not used in accordance with the terms of the Agreement or the applicable Specifications. The Customer will be liable for all damages, costs, expenses, settlements and legal fees related to IP Claims against the Customer as a result of (a), (b) and/or (c).
12. SUSPENSION AND TERMINATION
If the Customer fails to perform any of its obligations under the Agreement, or if the Customer fails to give prompt assurances of future performance when requested by Indro, then Indro may, upon five days’ written notice to the Customer, suspend or terminate performance of Indro’s obligations under the Agreement without liability and retain all rights and remedies Indro may possess at law, in equity or as provided in the Agreement. In addition to the foregoing remedies, to the extent that: (a) Indro suspends or terminates the performance of its obligations pursuant to this paragraph, or (b) if a PO is cancelled for any reason other than default by Indro, the Customer will pay Indro on demand 100% of the quoted Fees for any Products and Services for which Indro has commenced work, regardless whether such Products or Services are completed.
13. EXPORT CONTROLS AND END USE
The Products, Software and Services purchased or received under the Agreement are subject to Canadian, U.S. or other foreign export laws, rules, treaties, regulations, and international agreements (collectively, “Export Laws”). The Customer will abide by the Export Laws along with applicable foreign laws when transferring, selling, importing, exporting, re-exporting, deemed exporting, diverting, or otherwise disposing of the Products or Services. By purchasing the Products and/or Services, the Customer represents it is not in a sanctioned country nor is the Customer an individual or an entity whose purchase of the Products and/or Services is restricted by the Export Laws. Indro reserves the right not to supply products and/or services to certain customers and to require from the Customer full details of the end use and final destination of the Products and the Services. The Customer will provide Indro with written end use statements or certificates upon request from Indro.
All information, including quotations, specifications, drawings, prints, schematics, and any other engineering, technical or pricing data or information provided by Indro to the Customer relating to the Products and/or Services are the confidential and proprietary information of Indro (“Confidential Information”). The Customer and any parties for whom the Customer is responsible at law may not disclose any Confidential Information to any third parties, or use any Confidential Information for the Customer’s own account or that of any third party, except in the performance of this Agreement.
Entire Agreement. The Agreement forms the entire agreement and understanding between the parties, and supersedes all prior written and oral communications and agreements between the parties concerning the subject matter of the Agreement. This Agreement shall be construed neither against nor in favor of either party, but shall be construed in a neutral manner. Modifications. Any changes to the Agreement shall be agreed to in writing by an authorized signatory of Indro before becoming binding on either party. Indro reserves the right to make amendments or additions to the T&Cs. Assignment. The Agreement shall be binding on and inure to the benefit of the parties and their respective successors and permitted assigns; provided that the Customer may not assign any part of the Agreement without the prior written consent of Indro. Relationship. This Agreement does not create or imply any agency, partnership, or other joint relationship between the parties and does not authorize either party to bind or obligate the other in any way. Force Majeure. Indro is not responsible for performance of, or in default of, any obligation or provision of the Agreement where delayed, hindered or prevented by labour disruptions, failure of the networks of other companies, casualties, civil disturbances, legislation, regulation, judicial order, acts of civil or military authorities, accidents, fires, natural disasters, or other catastrophes or events beyond Indro’ reasonable control. Severability. If any provision of the Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby. No Waiver. The failure of the Customer or Indro to exercise any right under the Agreement, or to insist upon strict or full performance of the obligations under the Agreement, shall not constitute a waiver or relinquishment of any provision of the Agreement. To be binding upon a party, any such wavier must be express and in writing signed by that party. Governing Law and Jurisdiction. The Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia and the laws of Canada applicable therein. The parties hereby agree that except to the extent necessary for a party to enforce indemnity or defense obligations under the Agreement, the courts in the Province of British Columbia shall have exclusive jurisdiction with respect to any dispute or matter relating to the Agreement or the transactions contemplated hereby. No licenses. No license under any intellectual property right of Indro is granted herein except as expressly provided in the Agreement. Notices. All notices necessary under this Agreement shall be given in writing, and either personally delivered, or sent by registered mail or receipted email to the Customer at its address specified in the POs and to Indro at 31 Bastion Square #305, Victoria, BC V8W 1J1 . Notices, if personally delivered or sent by receipted email, will be deemed to have been received the same day, or, if sent by registered mail, will be deemed to have been received four days (excluding Saturdays, Sundays and statutory holidays) after the date of mailing.