CREAFORM Inc. – Terms and Conditions for Engineering Services (2118189.1) October 2023
CREAFORM, INC.
TERMS AND CONDITIONS FOR ENGINEERING SERVICES
THE FOLLOWING ARE THE TERMS AND CONDITIONS APPLICABLE FOR THE SERVICES PROVIDED BY SELLER TO BUYER. ANY PROPOSAL IS SUBJECT TO THESE TERMS AND CONDITIONS. ANY ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS PROPOSED BY THE BUYER, INCLUDING IN A PURCHASE ORDER, ARE EXCLUDED AND OBJECTED TO AND SHALL NOT BIND SELLER.
1. INTERPRETATION
1.1. Definition
Capitalized terms not otherwise defined herein shall have the following meaning:
1.1.1. “Affiliate” means any entity that is controlled by, controls, or under direct or indirect common control with, Seller or Buyer, as the case may be. For the purposes of this definition, an entity shall control another entity if it: (i) owns over 50% of the voting securities of the other entity; or (ii) can elect a majority of the directors of the other entity.
1.1.2. “Agreement” means these Terms and Conditions, any Proposal, and the NDA (if any).
1.1.3. “Buyer” means the entity or person identified as such in a Proposal.
1.1.4. “Confidential Information” means (i) any and all non-public or proprietary information of Seller or its Affiliates, including, but not limited to, all information related to the Services, Deliverables, and Seller’s business, products, services, activities, operations, financial information, strategies, customer lists, pricing information, business plan, Intellectual Property, technology, software, know-how, product designs, processes, methods and trade secrets, whether disclosed orally, in writing, or otherwise, and whether identified as confidential or not, and (ii) any copies, extracts or reproduction, in whole or in part, of any of the aforementioned information.
1.1.5. “Seller IP” means all Intellectual Property that is created or developed by Seller or any third party on its behalf, prior to, independent of, or while developing the Deliverables or performing the Services.
1.1.6. “Deliverables” means all final deliverables supplied or developed by Seller for Buyer in the performance of the Services, as specified in a Proposal, which shall exclude, unless otherwise agreed in writing, all technical information such as drawings and specifications.
1.1.7. “Intellectual Property” means all intellectual property, including, but not limited to, all ideas, concepts, inventions, discoveries, methods, processes, know-how, works, designs, plans, drawings, software, and any modifications thereto, or any applications or derivative works thereof, and all other forms of intellectual property, regardless of whether it is registered or can be registered.
1.1.8. “NDA” means the non-disclosure agreement (if any) entered into by Seller and Buyer.
1.1.9. “Prices” means the prices specified in any Proposal for the Services.
1.1.10. "Proposal” means a proposal or similar submission document entered into between Seller and Buyer in writing relating to the Services to be provided by Seller to Buyer.
1.1.11. “Purchase Order” means a purchase order or similar document issued by Buyer for a Service to be provided by Seller to Buyer in accordance with the terms of this Agreement.
1.1.12. “Seller” means Creaform inc. and its Affiliates.
1.1.13. “Services” means all services provided by Seller to Buyer, as detailed in a Proposal.
1.2. Order of Precedence
In the event of any inconsistencies between the provisions set forth in these Terms and Conditions, a Proposal, Seller’s product warranty conditions and the NDA, the decreasing order of precedence shall be as follows: 1) Proposal; 2) Seller’s product warranty conditions; 3) Terms and Conditions; 4) NDA.
2. BUYER’S GENERAL OBLIGATIONS
2.1. Buyer must designate an authorized individual who can act on Buyer’s behalf for all communications between the parties in relation to the Services.
2.2. Buyer is responsible for providing Seller with all information and assistance needed to carry out the Services that is reasonably requested by Seller. Buyer is required to perform all tasks specified by Seller in writing, to ensure cooperation of its personnel with Seller when needed, and to provide suitable facilities if Services are performed at Buyer’s business location.
3. PRICES
3.1. All Prices are subject to change without notice. Buyer understands and agrees that Seller may charge additional fees in the event of any changes in the cost of materials or labor, specifications, quantities, delivery schedules, customs duties, other factors beyond Seller’s control, or in the event of changes the scope of the Services, of delays caused by Buyer, or of failure by Buyer to provide Seller adequate information. Furthermore, Prices payable by Buyer shall be subject to immediate increase, should Seller, as a result of governmental action or regulation, incur additional duties, tariffs or restrictions on Deliverables sold hereunder, or on the raw materials that are used in making such Deliverables.
3.2. In no event shall Prices include any amounts imposed on Buyer in connection with Buyer’s purchases from Seller, such as taxes, including, but not limited to, sales taxes, Value Added Tax (VAT) or excise taxes, duties, tariffs, or any other costs assessed against Buyer by a governmental authority.
3.3. In addition to the Prices, Buyer shall reimburse Seller for all reasonable and documented expenses incurred for the provision of the Services, including travel and living expenses. However, such expenses must be preauthorized by Buyer. Seller reserves the right to charge a 15% administration fee on any expenses.
4. PAYMENT
4.1. Subject to credit approval of Buyer by Seller, the terms of payment shall be net 30 days from the date of Seller's invoice, unless otherwise specified in a Proposal. Payments shall be made by Buyer without any deduction or set-off. Payment shall be made in the currency identified in the Proposal. In addition to any other rights or remedies of Seller, if Buyers fails to pay on time, Seller has the right to charge interest at the rate that is the lesser of 2 % per month (26,82 % per annum) or the highest rate permitted by law on any uncontested outstanding amount.
4.2. Should Buyer’s financial condition be unsatisfactory to Seller, Seller may require full or partial payment in advance, or satisfactory security, in the form of a letter of credit or another financial document.
4.3. Buyer agrees that any Deliverables shall remain the property of Seller until such time as full payment of the Prices and expenses under the applicable Proposal has been made.
4.4. Buyer grants Seller a purchase money security interest in Deliverables located in Canada, (or rights of a similar nature in other jurisdictions and territories, as the case may be) or Services, as well as any proceeds, for the purpose of securing the obligations of Buyer hereunder. Buyer authorizes Seller to execute and sign on Buyer’s behalf and file such financing statements as Seller deems appropriate to perfect and notify Buyer’s creditors of Seller’s security interest.
4.5. Should Buyer fail to make full payment of the Prices, Seller shall, at its sole discretion, pursue any available remedies, including judicial action to collect any remaining balance of the Prices, deactivation of software license, recovery of Deliverables, suspension of delivery on remaining Deliverables, or any other remedies available at law or in equity. Buyer shall be responsible for any legal fees or expenses incurred by Seller in connection with its collection or enforcement efforts.
4.6. If more than one Deliverables is being purchased pursuant to a Proposal, unless otherwise set forth herein, each payment received by Seller from Buyer shall be applied pro rata against the cost of each Deliverables rather than being applied to the Price of any one Deliverable.
5. DELIVERY
5.1. Delivery dates are approximate and are dependent on prompt receipt by Seller of all necessary information. Delivery shall be "Ex-works" to Seller’s premises or by electronic means, as applicable, unless otherwise specified by Seller. Upon delivery of the Deliverables, all risk of loss or damage thereto shall pass to Buyer. Where Buyer notifies Seller that it cannot take timely delivery of the Deliverables, Seller may place such Deliverables
CREAFORM Inc. – Terms and Conditions for Engineering Services (2118189.1) October 2023
in storage, at the risk of Buyer, and Buyer shall reimburse Seller for all expenses incurred in connection with such storage. Buyer shall dispose of the packing materials for Deliverables at its own expense, and shall defend, indemnify, and hold harmless Seller from any legal obligations in connection with such packing waste.
6. INSTALLATION
6.1. Unless otherwise specified, Buyer shall be responsible for the installation of the Deliverables, including, but not limited to, the preparation of its premises, the uncrating of the Deliverables and their set-up for operation. In all cases, Buyer will be responsible for compliance of its facilities with applicable building, electrical and similar standards or codes.
7. TERM AND RENEWAL
7.1. The Services will begin on the date specified in the relevant Proposal and will continue for the term as specified in the Proposal, unless terminated earlier in accordance with these Terms and Conditions. The Services will terminate either: (i) in accordance with the terms set forth in the applicable Proposal or this section; or (ii) upon approval of the Deliverable related to the Services by Buyer, as applicable.
7.2. Each Service, except those resulting in a Deliverable, will automatically renew for consecutive one-year periods on the same terms and conditions following the service period stated in the Proposal, unless Seller or Buyer gives written notice to the other at least 60 days before the end of the current service period that it does not wish to renew the Services.
7.3. Unless otherwise specified in a Proposal, during each renewal period, Seller reserves the right to increase the Prices. However, any increase shall not exceed the percentage increase in the Consumer Price Index for all items in Canada (as published by Statistics Canada), plus 5 %, and Buyer shall be notified 30 days in advance of the application of such increase.
8. TERMINATION OF A PROPOSAL
8.1. Seller may terminate a Proposal, including any related Services or Deliverables:
8.1.1. if Buyer fails to fulfill its obligations, and does not take corrective action within 10 days of receiving written notice from Seller;
8.1.2. if Buyer becomes insolvent or goes bankrupt, dissolves its business, or has its assets seized; or
8.1.3. for any reason by providing Buyer with 2 weeks’ written notice.
8.2. Buyer may terminate a Proposal, including any related Services or Deliverables for any reason by providing Seller with 20 business days written notice. Buyer expressly waives the application of Articles 2125 and following of the Civil Code of Quebec.
8.3. In addition to any other provisions therein, upon termination of a Proposal:
8.3.1. Seller shall be immediately entitled to the payment of the portion of the Prices of the Proposal accrued to the date of termination as well as all fees and expenses prepaid by Seller for which Seller cannot be reimbursed;
8.3.2. all or any outstanding Proposal between Seller and Buyer may be terminated by Seller in its sole discretion;
8.3.3. Buyer shall immediately return to Seller or destroy, as applicable, any Confidential Information that is in its possession or control, all as directed by Seller;
8.3.4. if any of the Services results in a Deliverable and that such Services are terminated by Buyer or because of a fault of Buyer, Buyer shall pay to Seller, within 15 days of termination of such Proposal, the liquidated damages agreed in the Proposal, if any; and
8.3.5. if any of the Services were for a fixed term as set forth in the applicable Proposal and that such Services are terminated by Buyer or because of a fault of Buyer, Buyer shall pay to Seller, within 15 days of termination of such Proposal, liquidated damages equal to the lesser of (i) the remaining amounts for Services that would have been payable by Buyer under such Proposal or (ii) 20 working days of Services under such Proposal.
9. SURVIVAL OF PROVISIONS
9.1. The termination of a Proposal shall not affect any rights or obligations of the parties which, by their nature, should survive such termination, including but not limited to Sections 8.3, 11, 12, 13, 14, 16, 17, 18, 19 and 20 of these Terms and Conditions.
10. EXPORT CONTROLS; ANTI-CORRUPTION; ANTI-BOYCOTT
10.1. Buyer shall not make any disposition of the Deliverables, by way of transshipment, re-export, diversion or otherwise, except as applicable export laws and regulations may expressly permit, and other than in and to the ultimate country of destination specified on a Proposal or declared as the country of ultimate destination on Seller's invoices or in the End Use Statement that Buyer supplies Seller. Seller shall not be named as shipper or exporter of record or principal party-in-interest unless specifically agreed to in writing by Seller in which case, Buyer shall provide Seller with a copy of the documents filed by Buyer for export clearance purposes. At Seller’s request, Buyer shall supply end-use and end-user information to determine export license applicability. Failure of Buyer to comply with this section shall constitute a material default allowing Seller to cancel any related Proposal without liability.
10.2. Buyer warrants that it shall not violate or cause the Seller to violate any applicable anti-corruption or anti-bribery laws or regulations in connection with Buyer’s sale or distribution of the Deliverables or Services, including, but not limited to, the U.S. Foreign Corrupt Practices Act of 1977 (FCPA), as amended, and the United Kingdom Bribery Act (UKBA) of 2010, and that Buyer does not know or have reason to believe that any consultant, agent, representative or other person retained by Buyer in connection with the sale or distribution of Deliverables or Services has violated, nor caused Seller to violate such laws and regulations. Where Buyer learns of or has reason to know of any violation of any applicable anti-corruption or anti-bribery laws or regulations in connection with the sale or distribution of Deliverables or Services, Buyer shall immediately advise Seller.
10.3. Buyer further warrants that Buyer shall not violate or cause Seller to violate any applicable antiboycott provision, including, but not limited to, the U.S. Antiboycott Provisions of the U.S. Export Administration Regulations issued pursuant to the U.S. Export Administration Act of 1979, as amended, in connection with Buyer’s purchase of Deliverables or Services and that Buyer shall not request or require Seller to make statements or certifications against countries that are not subject to boycott by the U.S. or Canada.
10.4. Buyer hereby acknowledges that Seller transacts its business on a worldwide basis and is required to comply with the export control, anti-corruption and ethical business legislation and rules in several countries. As a result, Buyer agrees to comply with any such rules, as may be amended from time to time, in any country, and accepts that Buyer alone shall be responsible for obtaining the required information as to the applicable rules in any particular country.
11. SELLER WARRANTIES
11.1. Seller warrants for a period of 90 days from the completion of performance that Services shall be performed in accordance with generally accepted industry practice and with the relevant Proposal.
11.2. Seller warrants that Deliverables manufactured by Seller (excluding prototype), when delivered, for a period of 1 year from delivery (ref. section 5), shall be free from defects in material or workmanship. Seller's obligations under this warranty shall be limited exclusively to repairing or replacing, at Seller's option, any part of Deliverables which, if properly installed, used and maintained, proved to have been defective in material or workmanship within 1 year from the date of delivery (ref. section 5), or re-performing the Services. Unless otherwise specified by Seller, the point of delivery of all replaced or repaired Deliverables shall be "Ex-works" Seller’s premises.
11.3. Seller expressly declines any and all express, legal or implied representations, warranties, and conditions not contained herein, including representations, warranties, and conditions of commerciality, quality, performance, fitness for a particular purpose, non-infringement, and accuracy. In particular, Seller makes no warranty, express or implied, that all Services and the provision thereof shall be uninterrupted or error-free, or that the results obtained from their use will be accurate or reliable, or that functions contained therein shall meet or satisfy the Buyer’s intended use/requirements, or that all errors can be corrected or found in order to be corrected. Buyer shall notify Seller of any defect in the quality or condition of Deliverables (including software/firmware) or Services within 7 days of the date of delivery or performance.
11.4. Seller's warranty obligations shall not apply to Deliverables which (i) have been altered or repaired by someone other than Seller, or (ii) have been subjected to misuse, neglect, or improper use or application, or (iii) are normally consumed in operation, or (iv) have a normal life inherently shorter than the warranty period stated therein.
11.5. Third-party products are excluded from Seller’s warranty.
CREAFORM Inc. – Terms and Conditions for Engineering Services (2118189.1) October 2023
11.6. Unless otherwise specified by Seller, Buyer is solely responsible for testing and validating any deliverables created by Seller and ensuring that the resulting product performance is in compliance with the warranties Buyer wishes to offer.
11.7. No Deliverables may be returned unless authorized in advance by Seller, and then only upon such conditions to which Seller may agree. Buyer must obtain a Return Material Authorization (RMA) number from Seller prior to any return shipment, and such RMA number must appear on the shipping label and packing slip. Buyer shall be responsible for returned Deliverables until such time as Seller receives the same at its facility, and for all charges for packing, inspection, shipping, transportation, or insurance associated with returned Deliverables.
11.8. If Buyer requires on-site support service or repair, Buyer agrees that it will assume the cost of Seller’s on-site labor charge plus travel and accommodation as per Seller’s then effective rate.
11.9. This section 11 sets forth the exclusive remedies and obligations for claims based upon defects in or nonconformity of Deliverables or Services, whether the claim arises from any form of liability whatsoever including contractual, extracontractual, warranty, tort (including negligence of any degree or strict liability) or otherwise.
THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER ORAL, WRITTEN, EXPRESS, IMPLIED OR STATUTORY. NO IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE SHALL APPLY.
12. BUYER REPRESENTATIONS AND WARRANTIES
12.1. Buyer represents and warrants to Seller that it has all necessary rights to grant Seller the licenses granted hereunder, and that to its knowledge, any licenses granted hereunder to Seller does not breach or violate any third-party Intellectual Property rights.
13. INTELLECTUAL PROPERTY RIGHTS AND INDEMNITY
13.1. Unless otherwise specified in writing, Buyer shall be solely responsible for ensuring that the Deliverables and the Services do not infringe the Intellectual Property rights of a third party. Unless there is an intentional or gross fault on Seller’s part, Seller shall in no case be held responsible for any violation of the Intellectual Property rights of a third party.
13.2. Buyer hereby declares that any information it provides to Seller for the creation of the Deliverables, or the performance of the Services does not infringe the Intellectual Property rights of a third party.
13.3. If Buyer receives a claim that a Deliverable manufactured by Seller or Services provided by Seller infringe a third-party Intellectual Property right, Buyer shall notify Seller promptly in writing.
13.4. Where Buyer has furnished (a) specifications/designs for the manufacture of the allegedly infringing Deliverables or (b) hardware and/or software to Seller in connection with Deliverables or the Services, Buyer shall defend, indemnify, and hold harmless Seller against third-party claims for infringement arising out of Seller’s use of such specifications/designs or hardware/software.
13.5. Where Buyer has failed to ensure that the Deliverables and Services do not infringe the Intellectual Property rights of a third party, Buyer shall defend, indemnify, and hold harmless Seller against third-party claims for infringement arising out of the creation of the Deliverables or the performance of the Services.
13.6. If Seller has agreed in writing to be responsible for ensuring that the Deliverables and the Services do not infringe the Intellectual Property rights of a third party, Buyer shall give Seller information, assistance, and exclusive authority to evaluate, defend and settle all third-party claims of infringement.
14. LIMITATION OF LIABILITY
14.1. The total liability of Seller on any claim arising from any form of liability whatsoever including contractual, extracontractual, warranty, tort (including negligence of any degree or strict liability) or otherwise arising out of, connected with, or resulting from the manufacture, sale, delivery, resale, repair, replacement or use of any Deliverables/Services, is whether express or implied is limited to the Price paid by Buyer to Seller for the Deliverables/Services or part thereof which gives rise to the claim within the 12 months preceding the event from which the liability arises, with a maximum limit of $ 1,000,000 CAD.
IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT, (INCLUDING NEGLIGENCE OF ANY DEGREE, STRICT LIABILITY OR PATENT INFRINGEMENT) OR OTHERWISE, SHALL SELLER, ITS AFFILIATES, SUBCONTRACTORS, AND SUPPLIERS BE LIABLE FOR ANY LOSS OF PROFIT OR REVENUES, LOSS OF USE OF THE DELIVERABLES OR SERVICES, OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE GOODS, FACILITIES, SERVICES OR REPLACEMENT POWER, DOWNTIME COSTS OR CLAIMS OF BUYER'S CUSTOMERS FOR DAMAGES OR FOR ANY SPECIAL, PUNITIVE, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR EXEMPLARY DAMAGES. If Buyer transfers title to, or leases Deliverables sold hereunder to, or otherwise permits or suffers use by, any third party, Buyer shall obtain from such third party a provision affording Seller and its Affiliates, subcontractors and suppliers the protection of the preceding sentence.
15. EXCUSABLE DELAYS
15.1. Seller shall not be liable for delays in delivery or failure to perform due directly or indirectly to causes beyond Seller's reasonable control including but not limited to: acts of God; war; terrorism; civil commotion; riots; embargoes; government regulations, orders, instructions or priorities; port congestion; acts of or failure to act on the part of Buyer or its agents/employees; fires; floods; sabotage; nuclear incidents; earthquakes; storms; epidemics; strikes; lockouts or other labor difficulties; shortages of or inability to timely obtain proper labor, materials, components, shipping space or transportation, fuel, supplies or power at current prices; or due to limitations imposed by the extent of availability of Seller’s normal manufacturing facilities.
15.2. If a delay excused per the above extends for more than 90 days and the parties have not agreed upon a revised basis for continuing providing Deliverables/Services at the end of the delay, including adjustment of the Prices, then either party (except where delay is caused by Buyer, in which event only Seller) upon 30 days’ written notice may terminate the Proposal or the Purchase Order with respect to the unexecuted portion of the Deliverables and Services, whereupon Buyer shall promptly pay Seller its reasonable termination charges upon submission of Seller's invoices thereof.
16. ADDITIONAL LIMITATION - EQUIPMENT, SOFTWARE AND SERVICES FOR CUSTOM INTEGRATIONS
16.1. In the event Seller supplies Deliverables or Services to Buyer, or its third-party source, as components of a customized solution, Seller’s responsibility is limited only to the components supplied by Seller.
16.2. Buyer specifically agrees that Seller will not have responsibility, or incur any liability whatsoever for, the integration of the Deliverables or Services sold with any other components provided by third-party sources nor for the development or implementation of the complete solution provided to the end-user, whether or not developed by Buyer.
16.3. Deliverables and Services delivered by Seller to a third party for integration purposes must be formally accepted as compliant for such purposes by the third party within 5 days of delivery of the Deliverables and Services. Any deficiencies or unsuitability for the intended integration must be notified in writing to Seller within the above 5-day period. Should the third party fail to provide Seller with such notice within the stated 5-day period, the Deliverables and Services will then be deemed to have been accepted by the third party.
16.4. Buyer hereby accepts the above disclaimer and confirms that the end-user will be informed in writing of these conditions.
16.5. Buyer acknowledges that a software is a mathematical analysis tool intended to assist Buyer in its mechanical integrity analysis. Buyer hereby recognizes that the use of a software and the interpretation of the computed data require considerable skills and judgment. A software and Deliverables are not intended to be, nor are they, a substitute to a rigorous and comprehensive mechanical integrity analysis done by a qualified engineer.
17. CONFIDENTIAL INFORMATION
17.1. Any Confidential Information shall remain Seller's sole property and shall be held in confidence by Buyer. Confidential Information shall not be reproduced, used, or disclosed to others by Buyer without Seller’s prior written consent. Upon completion of a Proposal, Buyer shall promptly return all Confidential Information to Seller together with all copies or reprints thereof then in Buyer's possession or control, and Buyer shall thereafter make no future use, either directly or indirectly, of any Confidential Information or any information derived therefrom without Seller's prior written consent. The
CREAFORM Inc. – Terms and Conditions for Engineering Services (2118189.1) October 2023
foregoing shall in no way obligate Seller to provide or supply Confidential Information. 17.2. In the event Buyer becomes legally compelled to disclose any Confidential Information, Buyer shall immediately give notice thereof to Seller and shall cooperate with Seller reasonably and in good faith to prevent or limit the disclosure or obtain a protective order or other recourse. In the event that disclosure cannot be prevented, that the protective order or other recourse fails, or that Seller waives compliance with this provision, Buyer shall disclose only that portion of the Confidential Information which it is legally bound to disclose and exercise all reasonable efforts to obtain a reliable guarantee that the confidentiality of the disclosed Confidential Information will be ensured in accordance with the terms hereof.
17.3. Buyer understands and agrees that the remedies at law for the violation of any of the undertakings or provisions herein related to Confidential Information are insufficient, that such violations will cause irreparable harm within a short period of time, and that Seller shall be entitled to preliminary injunctive relief or other injunctive relief against any such violation without the necessity of proving actual damages. Such injunctive relief shall not limit and shall be in addition to any other remedies Seller shall have at law and in equity for the enforcement of those undertakings and provisions.
18. INTELLECTUAL PROPERTY AND LICENSES
18.1. Seller retains any and all rights in the Services, any Deliverables not assigned to Buyer pursuant to 18.3, the Seller IP and any updates or modifications of the foregoing.
18.2. Seller retains any and all rights in Seller trademarks, tradenames, brands, designs, graphics, logos, and other commercial symbols, whether registered or not.
18.3. Upon full payment of the Prices and expenses under the applicable Proposal, Seller agrees to assign to Buyer all rights to the Deliverables described in the Proposal, including all Intellectual Property rights therein, except all Seller IP and third-party Intellectual Property included or integrated in the Deliverables and agrees to waive any moral rights in the Deliverables in favor of Buyer. To avoid any doubt, the Prices do not include the cost of searches in third-party indexes to identify any existing third-party rights and Seller shall not be obliged to carry out any such searches unless specifically requested to do so by the Buyer in writing at the Buyer’s sole cost.
18.4. Buyer will acquire no rights or licenses to any Seller IP unless otherwise expressly provided herein.
18.5. Seller grants Buyer a non-exclusive, non-transferable, non-sublicensable license to use Seller IP required to use the Services or the Deliverables, solely for Buyer’s internal business, as applicable, and not on a stand-alone basis. Termination of this license for any reason shall not terminate the other terms of the Agreement. Buyer acknowledges and accepts that any license granted in connection with the Services shall be an interim license, which may be withdrawn, pending payment in full for Services, and shall automatically terminate following termination of the Services.
18.6. Some of the Deliverables may require installation, use or connection to software including custom configurations, macros or other. Buyer may be required to execute separate license agreements and the terms and conditions of those licenses shall bind Buyer.
18.7. Any material or information provided by Buyer shall belong to Buyer subject to Seller’s right to use such material or information for the performance of the Services or the creation of the Deliverables.
18.8. Buyer grants to Seller a royalty-free, worldwide, non-exclusive, non-transferable, and non-sublicensable (except to Seller’s subcontractors) a license to use, copy and reproduce Buyer’s Intellectual Property for the purpose of, and only to the extent necessary for, the provision of the Services or the creation of the Deliverables, and for Seller’s internal research and development work.
18.9. Seller owns all rights in and to any suggestions, requests, or recommendations for improvements of the Services and Deliverables made by Buyer, and Buyer irrevocably assigns to Seller all rights in the foregoing to Seller and waives, in favor of Seller and its successors and assigns, any and all moral rights therein.
19. NON-SOLICITATION
19.1. While Seller is performing Services pursuant to the Agreement and for 12 months thereafter, Buyer and its Affiliates shall not without the Seller’s prior written consent, directly or indirectly, solicit or recruit for employment or
hire, or make a recommendation, or referral or otherwise knowingly assist or facilitate the solicitation or recruitment of any Seller employee that has work directly or indirectly on the Services or Deliverables provided to the Buyer, for employment by any other entity. For the purposes of this section, is deemed an employee of the Seller any person acting as an employee of the Seller during the 6 months preceding any solicitation governed by this section.
19.2. Violation of paragraph 19.1 will result in Buyer being liable to Seller for 100% of such employee’s annual salary with Seller for the year prior to the solicitation.
19.3. If Buyer wishes to obtain Seller's prior written consent, Buyer shall provide written notice to Seller at least 30 days prior to the desired employee hiring date. Seller may then, in its sole discretion, consent to the hiring of the employee, provided that such employee demonstrates a willingness to accept such employment. If the hiring is consented to by Seller, Buyer agrees to pay Seller the following fee, based on the number of months that Seller's employee provided Services to Buyer:
19.3.1. Less than 12 months: 100 % of such employee’s annual salary;
19.3.2. From 12 to 36 months: 75 % of such employee’s annual salary;
19.3.3. More than 36 months: 50 % of such employee’s annual salary.
20. GENERAL
20.1. Neither Seller or Buyer is the agent or employee of the other for any purpose whatsoever. Seller and Buyer do not intend to create a partnership or joint venture between themselves. Neither Seller nor Buyer shall have the right to bind the other to any agreement or to incur any obligation or liability on behalf of the other.
20.2. The rights and obligations of Buyer and Seller hereunder shall be governed exclusively, in all respects, by the law applicable in the Province of Quebec, Canada. The exclusive forum for adjudication of any disputes shall be the federal or provincial courts sitting in the judicial district of Quebec City, Canada, and Buyer and Seller both hereby consent to personal jurisdiction and venue in such courts in any proceeding. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
20.3. The Agreement constitutes the entire agreement between Buyer and Seller and supersedes any prior or contemporaneous representations, agreements, proposals, warranties, or understandings, oral or written, express or implied. No waiver, modification, amendment, rescission, or other change to the Agreement shall be binding unless specifically agreed to in writing by an authorized representative of Seller.
20.4. The invalidity of any part hereof shall not affect the validity of the remainder. The failure of Seller to assert any right at any time hereunder shall not prevent Seller's subsequent assertion of the same or different rights. No waiver by Seller of its rights for a breach or default by Buyer shall be deemed to constitute a waiver of subsequent breaches or defaults by Buyer.
20.5. Buyer may not assign all or part of the Agreement without the prior written approval of Seller. Seller may assign all or part of the Agreement without the approval of Buyer.
20.6. Buyer may not use Seller’s name or any Seller trademarks in any manner, without the written consent of Seller.
20.7. Buyer expressly acknowledges that these Terms and Conditions have been drafted in the English language. In the event of any conflict of interpretation between these Terms and Conditions and any translation thereof, the English version shall prevail. L'Acheteur reconnaît expressément que les présentes Conditions générales ont été rédigées en langue anglaise. En cas de conflit d'interprétation entre les présentes Conditions générales et toute traduction de celles-ci, la version anglaise prévaudra.
21. STATUTORY REQUIREMENTS
21.1. Seller reserves the right to make any changes in the general specifications of the Deliverables which are required for the Deliverables to conform to any statutory requirement.
CREAFORM, INC.
TERMS AND CONDITIONS FOR ENGINEERING SERVICES
THE FOLLOWING ARE THE TERMS AND CONDITIONS APPLICABLE FOR THE SERVICES PROVIDED BY SELLER TO BUYER. ANY PROPOSAL IS SUBJECT TO THESE TERMS AND CONDITIONS. ANY ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS PROPOSED BY THE BUYER, INCLUDING IN A PURCHASE ORDER, ARE EXCLUDED AND OBJECTED TO AND SHALL NOT BIND SELLER.
1. INTERPRETATION
1.1. Definition
Capitalized terms not otherwise defined herein shall have the following meaning:
1.1.1. “Affiliate” means any entity that is controlled by, controls, or under direct or indirect common control with, Seller or Buyer, as the case may be. For the purposes of this definition, an entity shall control another entity if it: (i) owns over 50% of the voting securities of the other entity; or (ii) can elect a majority of the directors of the other entity.
1.1.2. “Agreement” means these Terms and Conditions, any Proposal, and the NDA (if any).
1.1.3. “Buyer” means the entity or person identified as such in a Proposal.
1.1.4. “Confidential Information” means (i) any and all non-public or proprietary information of Seller or its Affiliates, including, but not limited to, all information related to the Services, Deliverables, and Seller’s business, products, services, activities, operations, financial information, strategies, customer lists, pricing information, business plan, Intellectual Property, technology, software, know-how, product designs, processes, methods and trade secrets, whether disclosed orally, in writing, or otherwise, and whether identified as confidential or not, and (ii) any copies, extracts or reproduction, in whole or in part, of any of the aforementioned information.
1.1.5. “Seller IP” means all Intellectual Property that is created or developed by Seller or any third party on its behalf, prior to, independent of, or while developing the Deliverables or performing the Services.
1.1.6. “Deliverables” means all final deliverables supplied or developed by Seller for Buyer in the performance of the Services, as specified in a Proposal, which shall exclude, unless otherwise agreed in writing, all technical information such as drawings and specifications.
1.1.7. “Intellectual Property” means all intellectual property, including, but not limited to, all ideas, concepts, inventions, discoveries, methods, processes, know-how, works, designs, plans, drawings, software, and any modifications thereto, or any applications or derivative works thereof, and all other forms of intellectual property, regardless of whether it is registered or can be registered.
1.1.8. “NDA” means the non-disclosure agreement (if any) entered into by Seller and Buyer.
1.1.9. “Prices” means the prices specified in any Proposal for the Services.
1.1.10. "Proposal” means a proposal or similar submission document entered into between Seller and Buyer in writing relating to the Services to be provided by Seller to Buyer.
1.1.11. “Purchase Order” means a purchase order or similar document issued by Buyer for a Service to be provided by Seller to Buyer in accordance with the terms of this Agreement.
1.1.12. “Seller” means Creaform inc. and its Affiliates.
1.1.13. “Services” means all services provided by Seller to Buyer, as detailed in a Proposal.
1.2. Order of Precedence
In the event of any inconsistencies between the provisions set forth in these Terms and Conditions, a Proposal, Seller’s product warranty conditions and the NDA, the decreasing order of precedence shall be as follows: 1) Proposal; 2) Seller’s product warranty conditions; 3) Terms and Conditions; 4) NDA.
2. BUYER’S GENERAL OBLIGATIONS
2.1. Buyer must designate an authorized individual who can act on Buyer’s behalf for all communications between the parties in relation to the Services.
2.2. Buyer is responsible for providing Seller with all information and assistance needed to carry out the Services that is reasonably requested by Seller. Buyer is required to perform all tasks specified by Seller in writing, to ensure cooperation of its personnel with Seller when needed, and to provide suitable facilities if Services are performed at Buyer’s business location.
3. PRICES
3.1. All Prices are subject to change without notice. Buyer understands and agrees that Seller may charge additional fees in the event of any changes in the cost of materials or labor, specifications, quantities, delivery schedules, customs duties, other factors beyond Seller’s control, or in the event of changes the scope of the Services, of delays caused by Buyer, or of failure by Buyer to provide Seller adequate information. Furthermore, Prices payable by Buyer shall be subject to immediate increase, should Seller, as a result of governmental action or regulation, incur additional duties, tariffs or restrictions on Deliverables sold hereunder, or on the raw materials that are used in making such Deliverables.
3.2. In no event shall Prices include any amounts imposed on Buyer in connection with Buyer’s purchases from Seller, such as taxes, including, but not limited to, sales taxes, Value Added Tax (VAT) or excise taxes, duties, tariffs, or any other costs assessed against Buyer by a governmental authority.
3.3. In addition to the Prices, Buyer shall reimburse Seller for all reasonable and documented expenses incurred for the provision of the Services, including travel and living expenses. However, such expenses must be preauthorized by Buyer. Seller reserves the right to charge a 15% administration fee on any expenses.
4. PAYMENT
4.1. Subject to credit approval of Buyer by Seller, the terms of payment shall be net 30 days from the date of Seller's invoice, unless otherwise specified in a Proposal. Payments shall be made by Buyer without any deduction or set-off. Payment shall be made in the currency identified in the Proposal. In addition to any other rights or remedies of Seller, if Buyers fails to pay on time, Seller has the right to charge interest at the rate that is the lesser of 2 % per month (26,82 % per annum) or the highest rate permitted by law on any uncontested outstanding amount.
4.2. Should Buyer’s financial condition be unsatisfactory to Seller, Seller may require full or partial payment in advance, or satisfactory security, in the form of a letter of credit or another financial document.
4.3. Buyer agrees that any Deliverables shall remain the property of Seller until such time as full payment of the Prices and expenses under the applicable Proposal has been made.
4.4. Buyer grants Seller a purchase money security interest in Deliverables located in Canada, (or rights of a similar nature in other jurisdictions and territories, as the case may be) or Services, as well as any proceeds, for the purpose of securing the obligations of Buyer hereunder. Buyer authorizes Seller to execute and sign on Buyer’s behalf and file such financing statements as Seller deems appropriate to perfect and notify Buyer’s creditors of Seller’s security interest.
4.5. Should Buyer fail to make full payment of the Prices, Seller shall, at its sole discretion, pursue any available remedies, including judicial action to collect any remaining balance of the Prices, deactivation of software license, recovery of Deliverables, suspension of delivery on remaining Deliverables, or any other remedies available at law or in equity. Buyer shall be responsible for any legal fees or expenses incurred by Seller in connection with its collection or enforcement efforts.
4.6. If more than one Deliverables is being purchased pursuant to a Proposal, unless otherwise set forth herein, each payment received by Seller from Buyer shall be applied pro rata against the cost of each Deliverables rather than being applied to the Price of any one Deliverable.
5. DELIVERY
5.1. Delivery dates are approximate and are dependent on prompt receipt by Seller of all necessary information. Delivery shall be "Ex-works" to Seller’s premises or by electronic means, as applicable, unless otherwise specified by Seller. Upon delivery of the Deliverables, all risk of loss or damage thereto shall pass to Buyer. Where Buyer notifies Seller that it cannot take timely delivery of the Deliverables, Seller may place such Deliverables
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in storage, at the risk of Buyer, and Buyer shall reimburse Seller for all expenses incurred in connection with such storage. Buyer shall dispose of the packing materials for Deliverables at its own expense, and shall defend, indemnify, and hold harmless Seller from any legal obligations in connection with such packing waste.
6. INSTALLATION
6.1. Unless otherwise specified, Buyer shall be responsible for the installation of the Deliverables, including, but not limited to, the preparation of its premises, the uncrating of the Deliverables and their set-up for operation. In all cases, Buyer will be responsible for compliance of its facilities with applicable building, electrical and similar standards or codes.
7. TERM AND RENEWAL
7.1. The Services will begin on the date specified in the relevant Proposal and will continue for the term as specified in the Proposal, unless terminated earlier in accordance with these Terms and Conditions. The Services will terminate either: (i) in accordance with the terms set forth in the applicable Proposal or this section; or (ii) upon approval of the Deliverable related to the Services by Buyer, as applicable.
7.2. Each Service, except those resulting in a Deliverable, will automatically renew for consecutive one-year periods on the same terms and conditions following the service period stated in the Proposal, unless Seller or Buyer gives written notice to the other at least 60 days before the end of the current service period that it does not wish to renew the Services.
7.3. Unless otherwise specified in a Proposal, during each renewal period, Seller reserves the right to increase the Prices. However, any increase shall not exceed the percentage increase in the Consumer Price Index for all items in Canada (as published by Statistics Canada), plus 5 %, and Buyer shall be notified 30 days in advance of the application of such increase.
8. TERMINATION OF A PROPOSAL
8.1. Seller may terminate a Proposal, including any related Services or Deliverables:
8.1.1. if Buyer fails to fulfill its obligations, and does not take corrective action within 10 days of receiving written notice from Seller;
8.1.2. if Buyer becomes insolvent or goes bankrupt, dissolves its business, or has its assets seized; or
8.1.3. for any reason by providing Buyer with 2 weeks’ written notice.
8.2. Buyer may terminate a Proposal, including any related Services or Deliverables for any reason by providing Seller with 20 business days written notice. Buyer expressly waives the application of Articles 2125 and following of the Civil Code of Quebec.
8.3. In addition to any other provisions therein, upon termination of a Proposal:
8.3.1. Seller shall be immediately entitled to the payment of the portion of the Prices of the Proposal accrued to the date of termination as well as all fees and expenses prepaid by Seller for which Seller cannot be reimbursed;
8.3.2. all or any outstanding Proposal between Seller and Buyer may be terminated by Seller in its sole discretion;
8.3.3. Buyer shall immediately return to Seller or destroy, as applicable, any Confidential Information that is in its possession or control, all as directed by Seller;
8.3.4. if any of the Services results in a Deliverable and that such Services are terminated by Buyer or because of a fault of Buyer, Buyer shall pay to Seller, within 15 days of termination of such Proposal, the liquidated damages agreed in the Proposal, if any; and
8.3.5. if any of the Services were for a fixed term as set forth in the applicable Proposal and that such Services are terminated by Buyer or because of a fault of Buyer, Buyer shall pay to Seller, within 15 days of termination of such Proposal, liquidated damages equal to the lesser of (i) the remaining amounts for Services that would have been payable by Buyer under such Proposal or (ii) 20 working days of Services under such Proposal.
9. SURVIVAL OF PROVISIONS
9.1. The termination of a Proposal shall not affect any rights or obligations of the parties which, by their nature, should survive such termination, including but not limited to Sections 8.3, 11, 12, 13, 14, 16, 17, 18, 19 and 20 of these Terms and Conditions.
10. EXPORT CONTROLS; ANTI-CORRUPTION; ANTI-BOYCOTT
10.1. Buyer shall not make any disposition of the Deliverables, by way of transshipment, re-export, diversion or otherwise, except as applicable export laws and regulations may expressly permit, and other than in and to the ultimate country of destination specified on a Proposal or declared as the country of ultimate destination on Seller's invoices or in the End Use Statement that Buyer supplies Seller. Seller shall not be named as shipper or exporter of record or principal party-in-interest unless specifically agreed to in writing by Seller in which case, Buyer shall provide Seller with a copy of the documents filed by Buyer for export clearance purposes. At Seller’s request, Buyer shall supply end-use and end-user information to determine export license applicability. Failure of Buyer to comply with this section shall constitute a material default allowing Seller to cancel any related Proposal without liability.
10.2. Buyer warrants that it shall not violate or cause the Seller to violate any applicable anti-corruption or anti-bribery laws or regulations in connection with Buyer’s sale or distribution of the Deliverables or Services, including, but not limited to, the U.S. Foreign Corrupt Practices Act of 1977 (FCPA), as amended, and the United Kingdom Bribery Act (UKBA) of 2010, and that Buyer does not know or have reason to believe that any consultant, agent, representative or other person retained by Buyer in connection with the sale or distribution of Deliverables or Services has violated, nor caused Seller to violate such laws and regulations. Where Buyer learns of or has reason to know of any violation of any applicable anti-corruption or anti-bribery laws or regulations in connection with the sale or distribution of Deliverables or Services, Buyer shall immediately advise Seller.
10.3. Buyer further warrants that Buyer shall not violate or cause Seller to violate any applicable antiboycott provision, including, but not limited to, the U.S. Antiboycott Provisions of the U.S. Export Administration Regulations issued pursuant to the U.S. Export Administration Act of 1979, as amended, in connection with Buyer’s purchase of Deliverables or Services and that Buyer shall not request or require Seller to make statements or certifications against countries that are not subject to boycott by the U.S. or Canada.
10.4. Buyer hereby acknowledges that Seller transacts its business on a worldwide basis and is required to comply with the export control, anti-corruption and ethical business legislation and rules in several countries. As a result, Buyer agrees to comply with any such rules, as may be amended from time to time, in any country, and accepts that Buyer alone shall be responsible for obtaining the required information as to the applicable rules in any particular country.
11. SELLER WARRANTIES
11.1. Seller warrants for a period of 90 days from the completion of performance that Services shall be performed in accordance with generally accepted industry practice and with the relevant Proposal.
11.2. Seller warrants that Deliverables manufactured by Seller (excluding prototype), when delivered, for a period of 1 year from delivery (ref. section 5), shall be free from defects in material or workmanship. Seller's obligations under this warranty shall be limited exclusively to repairing or replacing, at Seller's option, any part of Deliverables which, if properly installed, used and maintained, proved to have been defective in material or workmanship within 1 year from the date of delivery (ref. section 5), or re-performing the Services. Unless otherwise specified by Seller, the point of delivery of all replaced or repaired Deliverables shall be "Ex-works" Seller’s premises.
11.3. Seller expressly declines any and all express, legal or implied representations, warranties, and conditions not contained herein, including representations, warranties, and conditions of commerciality, quality, performance, fitness for a particular purpose, non-infringement, and accuracy. In particular, Seller makes no warranty, express or implied, that all Services and the provision thereof shall be uninterrupted or error-free, or that the results obtained from their use will be accurate or reliable, or that functions contained therein shall meet or satisfy the Buyer’s intended use/requirements, or that all errors can be corrected or found in order to be corrected. Buyer shall notify Seller of any defect in the quality or condition of Deliverables (including software/firmware) or Services within 7 days of the date of delivery or performance.
11.4. Seller's warranty obligations shall not apply to Deliverables which (i) have been altered or repaired by someone other than Seller, or (ii) have been subjected to misuse, neglect, or improper use or application, or (iii) are normally consumed in operation, or (iv) have a normal life inherently shorter than the warranty period stated therein.
11.5. Third-party products are excluded from Seller’s warranty.
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11.6. Unless otherwise specified by Seller, Buyer is solely responsible for testing and validating any deliverables created by Seller and ensuring that the resulting product performance is in compliance with the warranties Buyer wishes to offer.
11.7. No Deliverables may be returned unless authorized in advance by Seller, and then only upon such conditions to which Seller may agree. Buyer must obtain a Return Material Authorization (RMA) number from Seller prior to any return shipment, and such RMA number must appear on the shipping label and packing slip. Buyer shall be responsible for returned Deliverables until such time as Seller receives the same at its facility, and for all charges for packing, inspection, shipping, transportation, or insurance associated with returned Deliverables.
11.8. If Buyer requires on-site support service or repair, Buyer agrees that it will assume the cost of Seller’s on-site labor charge plus travel and accommodation as per Seller’s then effective rate.
11.9. This section 11 sets forth the exclusive remedies and obligations for claims based upon defects in or nonconformity of Deliverables or Services, whether the claim arises from any form of liability whatsoever including contractual, extracontractual, warranty, tort (including negligence of any degree or strict liability) or otherwise.
THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER ORAL, WRITTEN, EXPRESS, IMPLIED OR STATUTORY. NO IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE SHALL APPLY.
12. BUYER REPRESENTATIONS AND WARRANTIES
12.1. Buyer represents and warrants to Seller that it has all necessary rights to grant Seller the licenses granted hereunder, and that to its knowledge, any licenses granted hereunder to Seller does not breach or violate any third-party Intellectual Property rights.
13. INTELLECTUAL PROPERTY RIGHTS AND INDEMNITY
13.1. Unless otherwise specified in writing, Buyer shall be solely responsible for ensuring that the Deliverables and the Services do not infringe the Intellectual Property rights of a third party. Unless there is an intentional or gross fault on Seller’s part, Seller shall in no case be held responsible for any violation of the Intellectual Property rights of a third party.
13.2. Buyer hereby declares that any information it provides to Seller for the creation of the Deliverables, or the performance of the Services does not infringe the Intellectual Property rights of a third party.
13.3. If Buyer receives a claim that a Deliverable manufactured by Seller or Services provided by Seller infringe a third-party Intellectual Property right, Buyer shall notify Seller promptly in writing.
13.4. Where Buyer has furnished (a) specifications/designs for the manufacture of the allegedly infringing Deliverables or (b) hardware and/or software to Seller in connection with Deliverables or the Services, Buyer shall defend, indemnify, and hold harmless Seller against third-party claims for infringement arising out of Seller’s use of such specifications/designs or hardware/software.
13.5. Where Buyer has failed to ensure that the Deliverables and Services do not infringe the Intellectual Property rights of a third party, Buyer shall defend, indemnify, and hold harmless Seller against third-party claims for infringement arising out of the creation of the Deliverables or the performance of the Services.
13.6. If Seller has agreed in writing to be responsible for ensuring that the Deliverables and the Services do not infringe the Intellectual Property rights of a third party, Buyer shall give Seller information, assistance, and exclusive authority to evaluate, defend and settle all third-party claims of infringement.
14. LIMITATION OF LIABILITY
14.1. The total liability of Seller on any claim arising from any form of liability whatsoever including contractual, extracontractual, warranty, tort (including negligence of any degree or strict liability) or otherwise arising out of, connected with, or resulting from the manufacture, sale, delivery, resale, repair, replacement or use of any Deliverables/Services, is whether express or implied is limited to the Price paid by Buyer to Seller for the Deliverables/Services or part thereof which gives rise to the claim within the 12 months preceding the event from which the liability arises, with a maximum limit of $ 1,000,000 CAD.
IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT, (INCLUDING NEGLIGENCE OF ANY DEGREE, STRICT LIABILITY OR PATENT INFRINGEMENT) OR OTHERWISE, SHALL SELLER, ITS AFFILIATES, SUBCONTRACTORS, AND SUPPLIERS BE LIABLE FOR ANY LOSS OF PROFIT OR REVENUES, LOSS OF USE OF THE DELIVERABLES OR SERVICES, OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE GOODS, FACILITIES, SERVICES OR REPLACEMENT POWER, DOWNTIME COSTS OR CLAIMS OF BUYER'S CUSTOMERS FOR DAMAGES OR FOR ANY SPECIAL, PUNITIVE, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR EXEMPLARY DAMAGES. If Buyer transfers title to, or leases Deliverables sold hereunder to, or otherwise permits or suffers use by, any third party, Buyer shall obtain from such third party a provision affording Seller and its Affiliates, subcontractors and suppliers the protection of the preceding sentence.
15. EXCUSABLE DELAYS
15.1. Seller shall not be liable for delays in delivery or failure to perform due directly or indirectly to causes beyond Seller's reasonable control including but not limited to: acts of God; war; terrorism; civil commotion; riots; embargoes; government regulations, orders, instructions or priorities; port congestion; acts of or failure to act on the part of Buyer or its agents/employees; fires; floods; sabotage; nuclear incidents; earthquakes; storms; epidemics; strikes; lockouts or other labor difficulties; shortages of or inability to timely obtain proper labor, materials, components, shipping space or transportation, fuel, supplies or power at current prices; or due to limitations imposed by the extent of availability of Seller’s normal manufacturing facilities.
15.2. If a delay excused per the above extends for more than 90 days and the parties have not agreed upon a revised basis for continuing providing Deliverables/Services at the end of the delay, including adjustment of the Prices, then either party (except where delay is caused by Buyer, in which event only Seller) upon 30 days’ written notice may terminate the Proposal or the Purchase Order with respect to the unexecuted portion of the Deliverables and Services, whereupon Buyer shall promptly pay Seller its reasonable termination charges upon submission of Seller's invoices thereof.
16. ADDITIONAL LIMITATION - EQUIPMENT, SOFTWARE AND SERVICES FOR CUSTOM INTEGRATIONS
16.1. In the event Seller supplies Deliverables or Services to Buyer, or its third-party source, as components of a customized solution, Seller’s responsibility is limited only to the components supplied by Seller.
16.2. Buyer specifically agrees that Seller will not have responsibility, or incur any liability whatsoever for, the integration of the Deliverables or Services sold with any other components provided by third-party sources nor for the development or implementation of the complete solution provided to the end-user, whether or not developed by Buyer.
16.3. Deliverables and Services delivered by Seller to a third party for integration purposes must be formally accepted as compliant for such purposes by the third party within 5 days of delivery of the Deliverables and Services. Any deficiencies or unsuitability for the intended integration must be notified in writing to Seller within the above 5-day period. Should the third party fail to provide Seller with such notice within the stated 5-day period, the Deliverables and Services will then be deemed to have been accepted by the third party.
16.4. Buyer hereby accepts the above disclaimer and confirms that the end-user will be informed in writing of these conditions.
16.5. Buyer acknowledges that a software is a mathematical analysis tool intended to assist Buyer in its mechanical integrity analysis. Buyer hereby recognizes that the use of a software and the interpretation of the computed data require considerable skills and judgment. A software and Deliverables are not intended to be, nor are they, a substitute to a rigorous and comprehensive mechanical integrity analysis done by a qualified engineer.
17. CONFIDENTIAL INFORMATION
17.1. Any Confidential Information shall remain Seller's sole property and shall be held in confidence by Buyer. Confidential Information shall not be reproduced, used, or disclosed to others by Buyer without Seller’s prior written consent. Upon completion of a Proposal, Buyer shall promptly return all Confidential Information to Seller together with all copies or reprints thereof then in Buyer's possession or control, and Buyer shall thereafter make no future use, either directly or indirectly, of any Confidential Information or any information derived therefrom without Seller's prior written consent. The
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foregoing shall in no way obligate Seller to provide or supply Confidential Information. 17.2. In the event Buyer becomes legally compelled to disclose any Confidential Information, Buyer shall immediately give notice thereof to Seller and shall cooperate with Seller reasonably and in good faith to prevent or limit the disclosure or obtain a protective order or other recourse. In the event that disclosure cannot be prevented, that the protective order or other recourse fails, or that Seller waives compliance with this provision, Buyer shall disclose only that portion of the Confidential Information which it is legally bound to disclose and exercise all reasonable efforts to obtain a reliable guarantee that the confidentiality of the disclosed Confidential Information will be ensured in accordance with the terms hereof.
17.3. Buyer understands and agrees that the remedies at law for the violation of any of the undertakings or provisions herein related to Confidential Information are insufficient, that such violations will cause irreparable harm within a short period of time, and that Seller shall be entitled to preliminary injunctive relief or other injunctive relief against any such violation without the necessity of proving actual damages. Such injunctive relief shall not limit and shall be in addition to any other remedies Seller shall have at law and in equity for the enforcement of those undertakings and provisions.
18. INTELLECTUAL PROPERTY AND LICENSES
18.1. Seller retains any and all rights in the Services, any Deliverables not assigned to Buyer pursuant to 18.3, the Seller IP and any updates or modifications of the foregoing.
18.2. Seller retains any and all rights in Seller trademarks, tradenames, brands, designs, graphics, logos, and other commercial symbols, whether registered or not.
18.3. Upon full payment of the Prices and expenses under the applicable Proposal, Seller agrees to assign to Buyer all rights to the Deliverables described in the Proposal, including all Intellectual Property rights therein, except all Seller IP and third-party Intellectual Property included or integrated in the Deliverables and agrees to waive any moral rights in the Deliverables in favor of Buyer. To avoid any doubt, the Prices do not include the cost of searches in third-party indexes to identify any existing third-party rights and Seller shall not be obliged to carry out any such searches unless specifically requested to do so by the Buyer in writing at the Buyer’s sole cost.
18.4. Buyer will acquire no rights or licenses to any Seller IP unless otherwise expressly provided herein.
18.5. Seller grants Buyer a non-exclusive, non-transferable, non-sublicensable license to use Seller IP required to use the Services or the Deliverables, solely for Buyer’s internal business, as applicable, and not on a stand-alone basis. Termination of this license for any reason shall not terminate the other terms of the Agreement. Buyer acknowledges and accepts that any license granted in connection with the Services shall be an interim license, which may be withdrawn, pending payment in full for Services, and shall automatically terminate following termination of the Services.
18.6. Some of the Deliverables may require installation, use or connection to software including custom configurations, macros or other. Buyer may be required to execute separate license agreements and the terms and conditions of those licenses shall bind Buyer.
18.7. Any material or information provided by Buyer shall belong to Buyer subject to Seller’s right to use such material or information for the performance of the Services or the creation of the Deliverables.
18.8. Buyer grants to Seller a royalty-free, worldwide, non-exclusive, non-transferable, and non-sublicensable (except to Seller’s subcontractors) a license to use, copy and reproduce Buyer’s Intellectual Property for the purpose of, and only to the extent necessary for, the provision of the Services or the creation of the Deliverables, and for Seller’s internal research and development work.
18.9. Seller owns all rights in and to any suggestions, requests, or recommendations for improvements of the Services and Deliverables made by Buyer, and Buyer irrevocably assigns to Seller all rights in the foregoing to Seller and waives, in favor of Seller and its successors and assigns, any and all moral rights therein.
19. NON-SOLICITATION
19.1. While Seller is performing Services pursuant to the Agreement and for 12 months thereafter, Buyer and its Affiliates shall not without the Seller’s prior written consent, directly or indirectly, solicit or recruit for employment or
hire, or make a recommendation, or referral or otherwise knowingly assist or facilitate the solicitation or recruitment of any Seller employee that has work directly or indirectly on the Services or Deliverables provided to the Buyer, for employment by any other entity. For the purposes of this section, is deemed an employee of the Seller any person acting as an employee of the Seller during the 6 months preceding any solicitation governed by this section.
19.2. Violation of paragraph 19.1 will result in Buyer being liable to Seller for 100% of such employee’s annual salary with Seller for the year prior to the solicitation.
19.3. If Buyer wishes to obtain Seller's prior written consent, Buyer shall provide written notice to Seller at least 30 days prior to the desired employee hiring date. Seller may then, in its sole discretion, consent to the hiring of the employee, provided that such employee demonstrates a willingness to accept such employment. If the hiring is consented to by Seller, Buyer agrees to pay Seller the following fee, based on the number of months that Seller's employee provided Services to Buyer:
19.3.1. Less than 12 months: 100 % of such employee’s annual salary;
19.3.2. From 12 to 36 months: 75 % of such employee’s annual salary;
19.3.3. More than 36 months: 50 % of such employee’s annual salary.
20. GENERAL
20.1. Neither Seller or Buyer is the agent or employee of the other for any purpose whatsoever. Seller and Buyer do not intend to create a partnership or joint venture between themselves. Neither Seller nor Buyer shall have the right to bind the other to any agreement or to incur any obligation or liability on behalf of the other.
20.2. The rights and obligations of Buyer and Seller hereunder shall be governed exclusively, in all respects, by the law applicable in the Province of Quebec, Canada. The exclusive forum for adjudication of any disputes shall be the federal or provincial courts sitting in the judicial district of Quebec City, Canada, and Buyer and Seller both hereby consent to personal jurisdiction and venue in such courts in any proceeding. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
20.3. The Agreement constitutes the entire agreement between Buyer and Seller and supersedes any prior or contemporaneous representations, agreements, proposals, warranties, or understandings, oral or written, express or implied. No waiver, modification, amendment, rescission, or other change to the Agreement shall be binding unless specifically agreed to in writing by an authorized representative of Seller.
20.4. The invalidity of any part hereof shall not affect the validity of the remainder. The failure of Seller to assert any right at any time hereunder shall not prevent Seller's subsequent assertion of the same or different rights. No waiver by Seller of its rights for a breach or default by Buyer shall be deemed to constitute a waiver of subsequent breaches or defaults by Buyer.
20.5. Buyer may not assign all or part of the Agreement without the prior written approval of Seller. Seller may assign all or part of the Agreement without the approval of Buyer.
20.6. Buyer may not use Seller’s name or any Seller trademarks in any manner, without the written consent of Seller.
20.7. Buyer expressly acknowledges that these Terms and Conditions have been drafted in the English language. In the event of any conflict of interpretation between these Terms and Conditions and any translation thereof, the English version shall prevail. L'Acheteur reconnaît expressément que les présentes Conditions générales ont été rédigées en langue anglaise. En cas de conflit d'interprétation entre les présentes Conditions générales et toute traduction de celles-ci, la version anglaise prévaudra.
21. STATUTORY REQUIREMENTS
21.1. Seller reserves the right to make any changes in the general specifications of the Deliverables which are required for the Deliverables to conform to any statutory requirement.