GENERAL TERMS AND CONDITIONS FOR THE SALE OF PRODUCTS AND SERVICES

  1. Applicability. These terms and conditions of sale (these "Terms") are the only terms which govern the sale by Vision33 Canada Inc. ("Seller") to the buyer ("Buyer") that signed a Seller order form (the "Order Form") for purchase of the third party products ("Products") and/or the Seller services ("Services") identified on the Order Form. The Order Form and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms specifically exclude any terms of Buyer which may be communicated to Seller at any time whether such terms appear on any purchase order or other document furnished by Buyer to Seller. Fulfilment of Buyer's order for the Products or the Services does not constitute acceptance of any of Buyer's terms and conditions and does not serve to modify or amend these Terms.

  2. Prices. Buyer shall purchase the Products and Services from Seller at the prices (the "Prices") set forth on the Order Form. Seller shall be entitled to increase the Prices for Products purchased on a subscription basis ("Subscription Products") at the start of each renewal term upon sixty (60) days' prior written notice (email acceptable) to Buyer. All Prices are exclusive of all harmonized sales tax, goods and services tax, sales tax, value added tax, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller's net income or personnel.

  3. Payment Terms. Except as otherwise specified on the Order Form, Buyer shall pay all invoiced amounts due to Seller within thirty (30) days from receipt of Seller's invoice. Buyer shall pay interest on all late payments at the lesser of the rate of eighteen (18%) per annum or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, legal fees on a full indemnity basis. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend or cancel the delivery of any Products or performance of any Services if Buyer fails to pay any amounts when due hereunder. Except as otherwise specified in these Terms, all payments are non-refundable and not subject to set-off or deduction by Buyer.

  4. Delivery; Title and Risk of Loss; Terms of Use. Subject to order acceptance by Seller's third party supplier, Seller shall arrange for delivery of the Products to Buyer. Buyer shall pay all shipping and handling charges for hardware, equipment and other tangible Products unless otherwise specified on the Order Form. Seller may elect to deliver software and other intangible Products by electronic transmission or to make those Products available for download by Buyer. Shipping and delivery dates are estimates only and cannot be guaranteed. Seller shall not be liable for any delays in shipments. Title and risk of loss for hardware, equipment and other tangible Products shall pass to Buyer upon delivery of those Products. For software and other intangible Products, the third party supplier's license terms shall govern Buyer's use of those Products.

  5. Inspection and Rejection of Non-Conforming Products. This Section 5 applies only to hardware, equipment and other tangible Products. Buyer shall inspect the Products within five (5) business days of receipt ("Inspection Period"). Buyer will be deemed to have accepted the Products unless it notifies Seller in writing of any Non-Conforming Products during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. "Non-Conforming Products" means only the following: (a) product shipped is different than identified on the Order Form; or (b) product's label or packaging incorrectly identifies its contents. If Buyer notifies Seller of any Non-Conforming Products during the Inspection Period and furnishes the documentation reasonably required by Seller, then Seller shall, in its sole discretion: (i) replace such Non-Conforming Products with conforming Products; or (ii) credit or refund the Prices for such Non-Conforming Products, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Non-Conforming Products to the location designated by Seller. If Seller exercises its option to replace Non-Conforming Products, Seller shall, after receiving Buyer's shipment of Non-Conforming Products, ship to Buyer the replaced Products. Buyer acknowledges and agrees that the remedies set forth in this Section 5 are Buyer's exclusive remedies for the delivery of Non-Conforming Products. Except as provided in this Section 5, all sales of Products to Buyer are made on a one-way basis and Buyer has no right to return Products purchased under this Agreement.

  6. Performance of Services. Seller shall use reasonable efforts to meet any performance dates to render the Services specified in the Order Form, and any such dates shall be estimates only. Buyer shall: (a) cooperate with Seller in all matters relating to the Services and provide access to Buyer's networks, systems, premises, and such office accommodation and other facilities as may reasonably be requested by Seller for purposes of performing the Services; (b) respond promptly to any Seller request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Seller to perform the Services in accordance with the requirements of this Agreement; (c) provide such data or information as Seller may reasonably require to carry out the Services and ensure that such data or information is complete and accurate in all material respects; and (d) obtain and maintain any licenses, approvals and consents that are required for Seller to perform the Services.

  7. Warranty Disclaimers.
    • The Products are supplied to Seller by a third party; and accordingly, Seller does not provide any conditions or warranties with respect to the Products. The Products are covered by the third party supplier's warranty included with the Products, set forth in the third party supplier's license terms, or otherwise made available to Buyer. Buyer shall follow the instructions in the third party supplier's warranty to obtain any applicable warranty coverage for defective or non-performing Products. Buyer acknowledges and agrees that Seller shall not be liable, under any circumstances, for any breach of warranty or condition claims or for any damages arising out of the third party supplier's failure to honour its warranty obligations to Buyer.
    • ALL PRODUCTS AND SERVICES ARE PROVIDED "AS IS". SELLER MAKES NO CONDITION OR WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS OR THE SERVICES, INCLUDING ANY: (i) CONDITION OR WARRANTY OF MERCHANTABILITY; (ii) CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) CONDITION OR WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
  8. Limitation of Liability.
    • IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, AGGRAVATED, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS, GOODWILL, REVENUE OR PROFITS) OR FOR BUSINESS INTERRUPTION OR COSTS OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE OTHERWISE FORESEEABLE AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    • IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCTS AND THE SERVICES SOLD HEREUNDER.
  9. Term and Termination.
    • This Agreement commences when the Order Form has been signed by Seller and Buyer. For Subscription Products, the initial term of the subscription shall be as specified on the Order Form. Subscription Products shall automatically renew for successive terms equal in length to the renewal term specified on the Order Form unless either party gives the other party written notice of non-renewal (email acceptable) at least ninety (90) days before the end of the then-current term. For the avoidance of doubt, in the event of such non-renewal, Buyer shall pay all amounts owing for the Subscription Products up to the end of the then-current term regardless if Buyer accesses or uses the Subscription Products after providing or receiving the notice of non-renewal and any amounts paid in advance by Buyer for the Subscription Products shall be non-refundable.
    • In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement immediately if Buyer: (i) breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice thereof (email acceptable) from Seller; or (ii) ceases to operate in the ordinary course of business, becomes insolvent, is unable to pay debts when due, is subject to bankruptcy, receivership or dissolution proceedings, or makes an assignment for the benefit of creditors or similar disposition of its assets.
    • Provisions of these Terms which by their nature should survive any termination or expiration of this Agreement shall remain in force after any such termination or expiration including, but not limited to, Sections 1, 2, 3, 7, 8, 9, 10, 12, and 15.
  10. Products Not for Resale or Export. Buyer represents and warrants that: (a) it is buying the Products for its own use only and not for resale or export; and (b) all Products are intended for final delivery to locations within Canada.

  11. Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof.

  12. Confidential Information. All non-public, confidential or proprietary information of either party, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed to the other party, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by the disclosing party in writing. Upon the disclosing party's request, the receiving party shall promptly return all documents and other materials received from the disclosing party. The disclosing party shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to the receiving party at the time of disclosure; or (c) rightfully obtained by the receiving party on a non-confidential basis from a third party. Each party's obligations under this Section are effective as of the date the confidential information is first disclosed to the receiving party and shall expire three (3) years thereafter.

  13. Force Majeure. The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labour disputes, or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate telecommunications or utility services.

  14. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void.

  15. Governing Law; Choice of Forum. This Agreement and any claims or disputes arising out of or related to this Agreement and its subject matter (including non-contractual claims or disputes) shall be governed by and construed in accordance with the laws of the Province of Newfoundland and Labrador and the federal laws of Canada applicable therein, without reference to conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Each party irrevocably attorns to the exclusive jurisdiction of the courts of Newfoundland and Labrador and all courts of appeal therefrom with respect to any such claims or disputes.

  16. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

  17. Amendment. These Terms may be modified from time to time by Seller, in its sole discretion, upon publication at: https://www.vision33.com/customer-terms-ca. Any such modifications shall not apply to Order Forms signed by Buyer prior to the date of such publication, save and except that such modifications shall apply to any subsequent renewal terms for Subscription Products.

  18. Execution; Delivery. The Order Form may be executed by manual or electronic signatures. The parties agree that: (a) any such electronic signatures are intended to authenticate the Order Form and to have the same force and effect as manual signatures; and (b) for purposes of this Section, "electronic signature" means any electronic sound, symbol, or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record. Delivery of an executed copy of the Order Form by email or other means of electronic transmission constitutes valid and effective delivery.

    Last Updated Date: October 22, 2020