Skydata :: Legal

Legal :: Terms And Conditions

The following terms and conditions (collectively the "Terms and Conditions") govern the sale of all products by SKYDATA CORPORATION (also "Seller") to its customers (also "Buyer"). Such Terms and Conditions supersede the terms and conditions on any purchase order submitted to Seller on a different or modified form. Seller reserves the right to change its Terms and Conditions from time to time without notice.

Ordering

Buyer may place orders by telephone, facsimile, and via Sellers approved electronic ordering methods only through persons who identify themselves as purchasing personnel. Seller will have no obligation to confirm the validity of any order placed. Buyer is required to provide a purchase order number identifying a particular purchase order and purchase order date. Sellers acceptance of any order is limited to these terms and conditions in their entirety without addition, modification or exception.

Acceptance

Buyer's acceptance of these Terms and Conditions shall be indicated by any of the following, whichever first occurs:, (a) Buyer’s issuance of a purchase order or purchase order number or (b) Buyer's acceptance of any shipment of any part of the items specified for delivery on the front side hereof (the "Products"). Buyer's acceptance is expressly limited to the Terms and Conditions in their entirety without addition, modification or exception and any term, condition, or proposal hereafter submitted by Buyer (whether oral or in writing) which is inconsistent with or in addition to the Terms and Conditions set forth hereon is objected to and is hereby rejected by Seller. Seller's silence or failure to respond to any such subsequent term, condition or proposal shall not be deemed to be Seller's acceptance or approval thereof. Seller reserves the right to refuse to sell Products to any customer at any time for any reason, including, without limitation, a customer who is not authorized to sell a particular product as communicated to Seller by the manufacturer.

Shipment And Delivery

Unless otherwise agreed to in writing, delivery shall be made in accordance with Seller's shipping policy in effect on the date of shipment. Shipments are made FOB origin. Title to, and all risk of loss or damage with respect to, the Products shall pass to Buyer upon delivery by Seller to the carrier or Buyer's representative at Seller's warehouse. Delivery is subject to the payment provisions set forth herein and to Seller's receipt from Buyer of all necessary information and documentation from Buyer. Buyer shall promptly notify Seller, no later than 10 days from invoice date, of any claimed shortages or rejection as to any delivery. Such notice shall be in writing and shall be reasonably detailed stating the grounds for any such rejection. Failure to provide any such notice within such time shall be deemed an acceptance in full of any such delivery. Seller shall not be liable for any shipment delays that affect Seller or any of Seller's suppliers.

Price And Payment

Buyer shall furnish to Seller all financial information reasonably requested by Seller from time to time for the purpose of establishing or continuing Buyer's credit limit, it being understood that Seller shall have the right to decline to extend credit to Buyer and to require that the applicable purchase prices be paid prior to shipment. Seller shall have the right from time to time, without notice, to change or revoke Buyer's credit limit on the basis of changes in Seller's credit policies or Buyer's financial condition and/or payment record. Seller shall have no obligation to deliver Products or services if Buyer files a voluntary petition under a bankruptcy statute, or makes an assignment for the benefit of creditors, or if an involuntary petition under a bankruptcy statute is filed against Buyer, or if a receiver or trustee is appointed to take possession of the assets of Buyer, or if Buyer engages in the sale of all or substantially all of its assets.

Prices payable by Buyer for the Products are specified on the invoice. Seller does not offer price protection. Buyer shall bear all applicable federal, provincial, municipal and other government taxes (such as sales, use and similar taxes) levied on this sale or the Products (or the delivery thereof) or measured by the purchase price hereunder. Seller's prices set forth on the front of the invoice do not include such taxes, fees and charges. Exemption certificates must be presented prior to shipment if they are to be honoured.

Credit cards are only accepted at the time of order or purchase. Payment for all other orders must be made in accordance with the terms in effect at the time the order was placed. Unless otherwise specified, payment terms are COD. Seller at its discretion may require reasonable advance assurances of payment through irrevocable bank letters of credit or otherwise. All unpaid invoices shall accrue interest daily at the rate of 18% per annum on the unpaid balance until paid in full. Buyer's failure to make timely payment may result in such action as revocation of credit, delay or cessation of future deliveries, repossession of unpaid delivered goods or any one or more of these. Seller shall have no continuing obligation to deliver Products on credit and any credit approval may be withdrawn by Seller at any time and without prior notice. Seller hereby retains (and Buyer grants to Seller) a security interest in the Products to secure payment in full and compliance herewith, and Buyer agrees to execute any additional documents necessary to perfect such security interest, upon Seller's request.

Product Returns

Return of Products purchased hereunder, whether for stock balancing purposes or because such Products are claimed to be defective, shall be governed by Seller's product return policies in effect on the date of return. Seller reserves the right to modify or eliminate such policies at any time. Stock balance returns are subject to a 10% restocking fee.

Limitation Of Liability

SELLER, ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS, SHALL NOT BE LIABLE TO BUYER OR ANY OTHER PARTY FOR ANY LOSS, DAMAGE, OR INJURY WHICH RESULTS FROM THE USE OR APPLICATION BY BUYER OR ANY OTHER PARTY OF PRODUCTS, GOODS AND/OR SERVICES DELIVERED TO BUYER. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY OTHER PARTY FOR LOSS, DAMAGE, OR INJURY OF ANY KIND OR NATURE ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS IN EXCESS OF THE NET PURCHASE PRICE OF THE PRODUCTS, GOODS AND/OR SERVICES ACTUALLY DELIVERED TO AND PAID FOR BY BUYER HEREUNDER.

SELLER SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE PRODUCT OR OTHERWISE, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOSS OF USE, LOST DATA OR ANY DAMAGES OR SUMS PAID BY BUYER TO THIRD PARTIES, EVEN IF SKYDATA CORPORATION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY WHETHER ANY CLAIM IS BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY OR CONTRIBUTION, THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE.

Governing Law

These Terms and Conditions (and any agreement to which they are incorporated) shall be interpreted in accordance with and governed by the laws of the Province of Ontario and the laws of Canada applicable therein.

Costs Of Collection

Buyer agrees to pay court costs and reasonable legal fees incurred in the collection of any unpaid balances whether or not suit is filed.

General

These Terms and Conditions shall, upon acceptance by Buyer, constitute the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and shall supersede all prior offers, negotiations, understandings and agreements, and it is expressly agreed that no prior or contemporaneous agreement or understanding, whether written or oral, shall contradict, modify, supplement or explain the Terms and Conditions. Notwithstanding the foregoing, if Buyer and Seller have executed an agreement that specifically supersedes and replaces or modifies any or all of the Terms and Conditions, the terms of such Agreement shall control. No additional or different terms of conditions, whether material or immaterial, shall become a part of these Terms and Conditions unless expressly accepted in writing by an authorized officer of Seller. Any waiver by Seller of one or more of these Terms and Conditions or any defaults hereunder shall not constitute a waiver of the remaining Terms and Conditions or any future defaults hereunder. It is the intention of the parties that these Terms and Conditions shall be enforceable to the fullest possible extent, regardless of any partial invalidity or unenforceability, and that no failure or delay by either party in exercising or enforcing any right hereunder shall operate as a waiver thereof or preclude any other exercise or enforcement of rights hereunder. The rights and obligations of Buyer under the Terms and Conditions may not be assigned by Buyer without the prior written consent of Seller (which shall not be unreasonably withheld). All Products purchased from Seller are subject to the terms and conditions set forth in the manufacturer's warranty, if any, provided to Buyer, and the end-user license packaged with each such Product.

Any order properly transmitted in accordance with these terms and conditions is considered to be "in writing"; and any order containing a purchase order number is deemed (a) to have been "signed" and (b) to constitute an "original" when printed from electronic files or records established and maintained in the normal course of business. Buyer and Seller agree not to contest the validity or enforceability of orders as to whether certain agreements are to be in writing or signed.

^ top