The terms and conditions included in this document constitute the entire agreement between the parties with respect to the subject matter hereof and supersede any prior representations or agreements, oral or written and all other communications between the parties relating to the subject matter hereof, including the terms and conditions set forth on any purchase order issued by Buyer. All sales by Ademco III Ltd., doing business as ADI Global Distribution (“Seller”), are expressly conditioned by and under these terms and conditions (The “Terms”). These Terms may in some instances differ with those affixed to Buyer's purchase order or other documents, if so, any additional terms or terms conflicting with these Terms will not apply and are expressly rejected unless specifically set forth in a separate written agreement between the parties. Acceptance of Buyer's order is expressly conditioned upon Buyer's acceptance of or assent to these Terms, which shall be established by a written acknowledgment, by implication, or by acceptance or payment for products ordered hereunder. Seller's failure to object to provisions contained in any communication from Buyer shall not be deemed a waiver of these Terms. Any changes in these Terms must specifically be agreed to in writing and signed by an officer of Seller before becoming binding. Receipt by Buyer of any products sold hereunder shall be conclusively deemed acceptance of these Terms. These terms and conditions govern the sale of product in Canada and Buyer is expressly prohibited from selling product outside Canada unless authorized by Seller.
All shipments are made FOB Origin (EX Works Incoterms 2010 for foreign customers) unless otherwise specified. Title to products and risk of loss pass to Buyer upon shipment from Seller’s warehouse. Buyer agrees to purchase any and all insurance it deems necessary to indemnify it against any loss in shipping. Buyer will determine any export license requirements, obtain any export license or other official authorization, and carry out any customs formalities for the export of goods. Buyer assumes all risk of loss in shipping and all liability for loss or damage, whether direct, indirect, consequential or otherwise, due to delays once the products have been delivered to the carrier. Buyer will comply with all applicable laws, regulations and ordinances of any governmental authority in any country having proper jurisdiction, including, without limitation, those laws of the United States or other countries that regulate the import or export of the goods provided by Seller and shall obtain all necessary import/export licenses in connection with any subsequent import, export, re-export, transfer, and use of all goods, technology and software purchases, licensed and received from Seller. Unless otherwise mutually agreed in writing, Buyer agrees that it will not use the goods in connection with any activity involving nuclear fission or fusion, any use or handling of any nuclear material, or any nuclear, chemical or biological weapons.
Seller shall not be responsible for loss, damage, delay or failure with respect to the products if due to or arising from shortage of raw materials, fires, labor troubles of any kind, accidents, breakdown of machinery, government acts of any kind, failure of manufacturers, subcontractors or suppliers to deliver materials or supplies or to provide services as agreed or contemplated by past dealings, transportation difficulties of any kind, acts of God, acts of Buyer or anything reasonably beyond Seller's control, whether or not presently occurring or contemplated by either party. Seller shall not be liable for damages, general, consequential or otherwise, or for failure to give notice of any delay until it shall have such additional time within which to deliver the products as may be reasonably necessary under the circumstances and shall have the right to apportion its inventory among its customers in such a manner as it considers acceptable. Seller shall also have the right to deliver the products in installments. Seller may terminate or suspend an order if there is a material breach by Buyer and Buyer fails to begin a cure within 10 calendar days after receipt of written notice.
4. Limited Warranty and Limitations.
Products distributed by Seller are warranted by the third-party manufacturer or pursuant to the terms of the warranty included in the packaging, for products manufactured by Seller, for a period as defined by the third-party manufacturer or in such documentation included with such products. Seller assigns to the Buyer those warranties and only those warranties extended by such third-party manufacturers or vendors for non-seller branded products and provides only those warranties included in the packaging for Seller manufactured products. Seller does not itself warranty any products other than those it manufactures (and then solely pursuant to the terms and subject to the limitations set forth in the documentation included with such products) and sells all other products only on an as is basis. THERE ARE NO REPRESENTATIONS, WARRANTIES, OR CONDITIONS, EXPRESS OR IMPLIED, OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF. IN NO CASE SHALL SELLER BE LIABLE TO ANYONE FOR ANY PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES FOR BREACH OF THIS OR ANY OTHER REPRESENTATION, WARRANTY OR CONDITION, EXPRESS OR IMPLIED, OR UPON ANY OTHER BASIS OF LIABILITY WHATSOEVER, EVEN IF THE LOSS OR DAMAGE IS CAUSED BY ITS OWN NEGLIGENCE OR FAULT AND EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. Seller does not represent that the products it manufactures or it sells may not be compromised or circumvented; that the products will prevent any personal injury or property loss by burglary, robbery, fire or otherwise, or that the products will in all cases provide adequate warning or protection. Buyer understands and will cause its customers to understand that a properly installed and maintained alarm may only reduce the risk of a burglary, robbery or fire without warning, but it is not insurance or a guarantee that such will not occur or will not cause or lead to personal injury or property loss. CONSEQUENTLY, SELLER SHALL HAVE NO LIABILITY FOR ANY PERSONAL INJURY, PROPERTY DAMAGE OR OTHER LOSS BASED ON ANY CLAIM AT ALL INCLUDING A CLAIM THE PRODUCT FAILED TO GIVE WARNING. HOWEVER, IF SELLER IS HELD LIABLE WHETHER DIRECTLY OR INDIRECTLY FOR ANY LOSS OR DAMAGE WITH RESPECT TO THE PRODUCTS IT SELLS, REGARDLESS OF CAUSE OF ORIGIN, ITS MAXIMUM LIABILITY SHALL NOT IN ANY CASE EXCEED THE PURCHASE PRICE OF THE PRODUCT UNDER THE SPECIFIC ORDER, WHICH SHALL BE FIXED AS LIQUIDATED DAMAGES AND NOT AS A PENALTY, AND SHALL BE THE COMPLETE AND EXCLUSIVE REMEDY AGAINST SELLER.
5. Limitation on Liability to Buyer's Customers.
Buyer agrees to limit liability to its customers to the fullest extent permitted by law. Buyer acknowledges that Seller shall only be deemed to give consumers of its products such statutory warranties as may be required by law and at no time shall Buyer represent to its customers and or users of Seller’s products that Seller provides any additional warranties (except as may be specifically provided herein with respect to products manufactured by Seller). By accepting the products, to the fullest extent permitted by law, Buyer assumes all liability for, and agrees to indemnify and hold Seller harmless against and defend Seller from, any and all suits, claims, demands, causes of action and judgments relating damages, whether for personal injury or to personal property, suffered by any person, firm, corporation or business association, including but not limited to, Buyer's customers and/or users of the products because of any failure of the products to detect and/or warn of the danger for which the products were designed or any other failure of the products whether or not such damages are caused or contributed to by the sole or joint concurring negligence of Seller.
6. Seller’s Trademarks
Buyer shall only use Seller’s Trademarks (“ADI Trademarks”) in the specific form and manner provided by Seller to Buyer and in strict conformity and compliance with any guidelines provided by Seller. Buyer shall not utilize any ADI Trademark for any unauthorized purpose including, but not limited to, using any ADI Trademark as part of a corporate, business, or trading name, and shall not attempt to register or own in any country any ADI Trademark, any domain name incorporating in whole or in part any ADI Trademark or any name, trade name, domain name, keyword, mark or social or business networking/media account or identification name confusingly similar to any ADI Trademark. Buyer recognizes the validity of Seller’s Intellectual Property and acknowledges that the same are the property of Seller and that no right, title or interest in Seller’s Intellectual Property will be transferred to Buyer under these terms and conditions. Seller may revoke Buyer’s right to use any ADI Trademarks at any time and in its sole and absolute discretion.
7. Confidential Information and Data Use Rights
Confidential Information means any non-public information of a party, such as proprietary technology, trade secrets, know-how, methods of operations, marketing data and sales programs, market studies and trends, financial information, pricing policies, vendor and customer lists, buying patterns, Point of Sales reports and other information relating to the business, products, purchases or sales of a party or any of its suppliers or customers. Buyer acknowledges and agrees that Seller may use Buyer’s Confidential Information to perform its obligations under these terms and conditions as they apply to the current or contemplated business relationship, and may disclose such information to persons on a need to know basis to perform such obligations, provided such persons are bound by written confidentiality restrictions no less stringent than those contained herein. In compliance with applicable data protection laws and regulations, Seller may use data collected, generated, processed or transmitted by or through products, or data provided by Buyer regarding the operation or performance of products, in an aggregated or anonymized form for any business purpose, including product development, marketing or sales support or other analytics. If Buyer does not own such data, Buyer grants Seller (or shall procure for Seller) the right to use and make derivative works from such data for any lawful purpose.
8. Return and Repair Policies.
Return for Credit Unused Product.At its option, Seller may accept as a return for credit unused product in its unopened original package and in a condition that could be sold as new providing the product was purchased from Seller no more than thirty (30) days prior to the date of return. Buyer must provide proof of purchase within the preceding thirty (30) days and method of payment. Buyer shall be responsible for any freight on returns and returns of product must be unopened and must include all original instructions and packaging within the original box. Special order items are, at Seller’s option, non-returnable or may be returned and subject to a restocking fee. For non-returnable items, no return privileges apply.
Defective Product Replacement Policy.
Bad out of box: Solely as a convenience to Buyer provided Buyer’s account is in good standing, and in Seller’s sole discretion, any product that is initially defective (bad-out-of-box) may be exchanged for a new product at no charge to Buyer in accordance with the manufacturer’s policy that is being passed along to Buyer by Seller or, at Seller’s option, be returned for credit in accordance with the manufacturer’s policy. Manufacturers’ policies may vary. Buyer must provide a copy of the invoice number for the product being returned. Seller may, at Buyer’s cost for freight, take the product and sent it to the manufacturer. If the manufacturer determines that the product is not initially defective (bad-out-of-box) or not otherwise new or its inability to function properly is a result of user damage or abuse, Buyer shall pay Seller all charges relating to the product as well as the replacement product previously given or, if applicable, have any credit given to Buyer reversed.
Product for Repair: As a convenience to and on behalf of Buyer, provided Buyer’s account is in good standing, in Seller’s sole discretion, Seller may ship products for warranty or other service to the appropriate manufacturer in which event any repair, shipping or handling costs will be charged to the Buyer.
Prices do not include any municipal, state or federal sales, use, excise, value added or similar taxes. Consequently, in addition to prices specified, the amount of any present or future tax that may be imposed shall be paid by Buyer, or in lieu thereof Buyer will provide Seller with a tax exemption certificate acceptable to the taxing authorities.
10. C.O.D. Purchases; Purchases on Credit.
All freight charges shall be for Buyer’s account on C.O.D. purchases whether products are accepted or not. With respect to purchases by Buyer on credit, Seller reserves the right at any time to revoke any credit extended to Buyer because of Buyer’s failure to pay for any products when due or for any reason deemed good and sufficient by Seller, and in such event all subsequent shipments shall be paid for on delivery. If this invoice is not paid when due, Buyer agrees to pay all costs of the collection including agency and attorney’s fees, whether incurred in or out of court, on appeal, in arbitration, in Bankruptcy court, or in any insolvency proceedings.
11. Security Interest.
Buyer grants to Seller a continuing, specific and fixed security interest (and, to the extent applicable, a purchase money security interest), and in Quebec a movable hypothec, in all of the Buyer’s property, rights and assets of every nature and kind, now owned or subsequently acquired by the Buyer and at any time and from time to time existing or in which the Buyer has or acquires an interest, including all personal property (in Quebec movable), insurance policies, annuities, financial assets, accounts, chattel paper, contracts, documents of title, equipment, intangibles, inventory, investment property, money and proceeds, together with all increases, additions and accessions to any of them and all substitutions or any replacements of any of them (collectively, the “Secured Property”). For the Province of Quebec only, the hypothec created herein is for an amount equal to $200,000. Buyer shall execute, at Seller’s request, such other and further documents (including a general security agreement or in Quebec a Hypothec) as may be necessary or desirable to further evidence, perfect or amend such security interest. Upon any default by the Buyer in performing any or all of the agreements, warranties, representations, covenants and conditions of the Buyer made pursuant to these Terms or any other agreement between the Buyer and Seller from time to time, Seller may exercise all remedies available to it under applicable personal property security legislation and other applicable law and may also appoint a receiver, enter the Buyer’s premises and repossess the Secured Property, dispose of the Secured Property as it sees fit, foreclose upon the Secured Property or otherwise deal with the Secured Property in such manner, upon such terms and conditions, at such time or times and place or places and for such consideration as may seem to Seller advisable and without notice to the Buyer. The Buyer acknowledges and consents to the filing by Seller of any financing statement deemed necessary or desirable by Seller under applicable personal property security legislation.
12. Promise to Pay and Late Charge on Past Due Amounts.
Buyer agrees to make all payments pursuant to the payment terms specified in the approval letter or other notice that ADI provides to Buyer. If ADI does not receive payment for an invoice by the payment due date, the entire outstanding balance of all open invoices on Buyer’s account shall become immediately due and payable. Buyer agrees to pay ADI a late charge in the amount of 1.5% (or the maximum rate permitted by law if less) of the delinquent amount remaining of the entire outstanding balance of all invoices on the first payment due date after Buyer’s failure to pay and monthly thereafter. Buyer may not set off invoiced amounts against sums that are due from Seller. ADI’s extension of credit is subject to Buyer maintaining its current credit standing. Credit memos must be used on outstanding balances or future purchases. In the event Buyer’s account with Seller is dormant for more than three (3) months and has a credit balance, Seller may apply such balance against any future purchases at any time at Seller’s discretion until such credit balance is used in full. For accounts past due longer than 90 days with open credits, Seller may apply such credits against any debit balance which has remained open for 90 days or more.
13. Invoice Disputes.
All invoice disputes must be submitted to Seller in writing within 30 days following the date of any such invoice. Thereafter, and absent written notice prior to the expiration of 30 days from the invoice date, Buyer waives any and all rights it may have to dispute the validity, existence or amount of such invoice.
14. Import/Export Laws.
Buyer will comply with all import, export and re-export control laws and regulations as required. Export of product without the proper license is prohibited.
No waiver by Seller of any of these Terms shall be deemed to constitute a waiver of any other Terms or a waiver of the same or any other provision with regard to portions of this transaction or future transactions. No waiver by course of conduct or custom usage can occur.
Stenographic and clerical error and omissions in the invoice are subject to correction.
17. Applicable Law and Jurisdiction.
The Terms shall be deemed governed by the laws of the Province of Ontario and the laws of Canada applicable therein (save and except for the hypothec provided in Section 10 above which shall be governed by the laws of the Province of Quebec) and such laws shall govern its validity, performance and construction. The Ontario General Division Courts in Toronto, Ontario shall have exclusive jurisdiction of any claims arising out of these Terms or any product order. The parties submit to the personal jurisdiction of the courts located in Toronto, Ontario.
Neither party will assign any rights or obligations under these Terms without advance written consent of the other Party, which consent will not be unreasonably withheld. Either party may assign these Terms in connection with the sale or transfer of all or substantially all the assets of the business to which they pertain. Any attempt to assign or delegate in violation of this clause will be void.
19. English Language.
The parties hereto confirm that it is their wish that these Terms as well as other documents relating hereto, including notices and product orders, have been and shall be drawn up in the English language only. Les parties aux présentes confirment leur volonté que cette convention de même que tous les documents, y compris tous avis et commandesde produits, s'y rattachant, soient resigés en langue anglaise seulement.