TERMS AND CONDITIONS OF SALE
The following Terms and Conditions shall govern the sale of any product or service (collectively referred to herein as the “Products” or a “Product”) sold by FISO Technologies Inc.(“FISO”) directly or indirectly
through its authorized agents, distributors or resellers, to the purchaser stipulated on a FISO invoice or price quotation (“Purchaser”), unless otherwise expressly agreed to in writing by FISO. FISO shall not be
bound by the terms of any order forms or other communications between the parties which are inconsistent with or additive to these Terms and Conditions.
1.ORDERING AND SHIPPING
a.Placement of Orders
Orders for Products shall be placed in writing by mail, fax or PDF format e-mail to FISO. Each order shall specify: (i) the quantity, model, and price of each Product ordered; (ii) the date requested for, and the address of the place of, delivery; (iii) the name, address, telephone/fax number and e-mail address of any carrier or freight forwarder specifically requested by Purchaser; (iv) the name, address, telephone/fax number and e-mail address of Purchaser; as well as (v) the name, address telephone/fax number and e-mail address of the end-user, if different from the Purchaser.
b.Confirmation of Orders
Upon receipt of an order, FISO shall respond in writing by stating: (i) any proposed changes in the Products or quantities of the Products; and (ii) the date on or before which FISO expects to be able to make delivery to the carrier or freight forwarder. An order shall be binding on FISO only upon the issuance by FISO of written confirmation of such order.
c.Cancellation of Orders
Cancellation of any order between seven (7) and thirty (30) days prior to confirmed ship date shall be subject to a cancellation charge of forty percent (40%) of the cancelled portion of the order. Orders may not
be cancelled within seven (7) days prior to, on, or after the confirmed ship date. Orders of non-standard Products or Product configurations may not be cancelled. The cancellation charge is not imposed as a penalty, but as liquidated damages.
d.Changes in Delivery Schedule
Change in delivery date by Purchaser, without charge, must be made in writing and received at least fifteen (15) days prior to scheduled delivery date. Any requested delay or series of delays totalling ninety
(90) days or more shall be treated as a cancellation and shall be subject to the 40% cancellation charge on the portion of the order which is so delayed.
e.Shipping and Delivery
Delivery is EX WORKS FISO’s Quebec City facility (the “Delivery Point”). All risk of loss or damage with respect to the Products shall pass to Purchaser upon delivery at the Delivery Point to the carrier or freight
forwarder. All freight, insurance and other shipping charges and expenses from the Delivery Point, as well as any special packing expenses requested by Purchaser, shall be borne by Purchaser. FISO shall use good faith efforts to comply with Purchaser’s instructions regarding shipping and choice of carrier. Purchaser must notify FISO within ten (10) days of receipt of Products of any discrepancies in the shipment of
such Products or of any reason for rejection of such Products, failing which Purchaser shall be deemed to have accepted the Products.
2.PRICING
a.Quotations and Prices
Prices quoted by FISO are firm for thirty (30) days from quotation date, and are quoted and invoiced in either: US, Canadian, or EURO currencies, as specified by FISO.
b.Taxes and Other Charges
Prices do not include sales, use or privilege taxes, value-added taxes, excise or similar taxes, custom duties, shipping, handling, insurance, brokerage, and other related charges levied by any jurisdiction pertaining to the Products, other than taxes computed on the basis of the net income of FISO, which shall be paid by Purchaser. Orders exempt from sales or other taxes must be so marked and Purchaser must supply satisfactory proof of such tax exemption.
c.Payment
All Products sold by FISO shall be invoiced upon shipment. Payment must be made to FISO at its principal place of business or pursuant to FISO’s written instructions. Until initial credit terms have been established with Purchaser, orders shall require an advance deposit with the balance due prior to shipment, or irrevocable letters of credit or other payment security acceptable to FISO.
All wire payments, wire transfer of moneys and letters of credit –in Canadian or US dollars- must be made payable at sight or sent to:
FISO Technologies Inc.
C/O RBC Royal Bank
635 Victoria Avenue
St-Lambert (Quebec) Canada J4P 2J5
Int’l Swift ROYCCAT2
Transit No. 07941-003
US Dollar Account No. 400-285-3
CAD Dollar Account No. 101-376-2
All wire payments, wire transfer of moneys and letters of credit –in Euro – must be made payable or sent to:
FISO Technologies Inc.
C/O BNP Paribas, Marne La Vallee
Immeuble Andromede
10 Place D’Ariane
Serris 77706
Marne La Vallee Cedex 04 (France)
RIB: 30004 02124 00010127901 05
IBAN: FR76 3000 4021 2400 0101 2790 105
BIC: BNPAFRPPLMV
d.Late Charge
Except as otherwise set forth above, all payments due hereunder must be paid within thirty (30) days of the date of FISO’s invoice. Invoices unpaid in full when due shall bear a late payment interest charge of the lower of 18% per year (one and one half percent (1½ %) per month) or the maximum percentage allowed by law for each month or portion thereof of the amount past due. In addition, FISO may cancel or delay shipment of the Products at its sole discretion.
e.Retained Rights
Until payment of an invoice has been received in full by FISO, FISO shall retain ownership of the Products and shall retain, and Purchaser hereby grants to FISO, a first priority security interest in the Products shipped or delivered to Purchaser. Purchaser shall promptly execute any documents necessary to perfect and protect such security interest on FISO’s behalf.
3.WARRANTY
a.General Warranty
FISO generally warrants that its Products shall be free from defects in material and workmanship under conditions of normal use for a period of one (1) year from the date of invoice. However, FISO warrants its fibre optic transducers and sensors for ninety (90) days and its Northec Signal Conditioners for five (5) years from the date of reception. Purchaser must refer to the written warranty certificate included with each purchased Product for the specific Product warranty applicable. Purchaser may specifically purchase an extended Product warranty from FISO. Except for the duration of such extended warranty, the other
provisions of this section and of this Agreement shall apply to any extended warranty purchased by Purchaser from FISO.
THIS WARRANTY IS IN LIEU OF, AND PURCHASER WAIVES, ALL OTHER WARRANTIES EXPRESSED OR IMPLIED INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES FOR MERCHANTABILITY AND FITNESS FOR PURPOSE. IF ANY PRODUCT DOES NOT CONFORM TO THE FOREGOING WARRANTY, IT MAY BE RETURNED TO FISO AND FISO SHALL,
AT ITS OPTION, REPAIR OR REPLACE THE PRODUCT AT NO CHARGE, OR PROVIDED THE PRODUCT CANNOT BE REPAIRED OR REPLACED WITHIN A REASONABLE TIME, REFUND THE
PURCHASE PRICE. ALL REPLACED PARTS SHALL BECOME THE PROPERTY OF FISO. THIS WARRANTY DOES NOT INCLUDE AND FISO SHALL NOT BE RESPONSIBLE FOR DAMAGE TO THE
PART OR PRODUCTS RESULTING FROM IMPROPER INSTALLATION, ABUSE, NEGLECT, ACCIDENT, IMPROPER USE, OR SERVICING OR MODIFICATION OF THE PART OR PRODUCT
BY ANYONE OTHER THAN FISO OR AN ORGANIZATION CERTIFIED BY FISO.
b.Warranty Service
Warranty service may be obtained by:
i)providing the FISO Customer Service Department with written notification of a defect prior to the expiration of the warranty period;
ii) obtaining a Return Material Authorization (“RMA”) number;
iii) returning the defective Product to FISO’s Quebec City facility within thirty (30) days of issuance of an RMA number; and,
iv) providing proof of purchase date and written description of the problem or failure. All repairs are performed at FISO’s Quebec City facility. Purchaser shall pay all shipping charges and assume the risk of loss or damage in transit.
Upon return of such repaired Product, the warranty with respect to such Product shall continue for the remaining unexpired warranty term. Services not covered by this warranty shall be provided at the then prevailing FISO service rates.
4.LIMITATIONS OF LIABILITY
PRODUCTS SOLD BY FISO, OR ITS AUTHORIZED DISTRIBUTORS, AGENTS OR RESELLERS, HAVE NOT BEEN AND ARE NOT REPRESENTED AS BEING, APPROVED OR CERTIFIED BY ANY REGULATORY BODY. PRODUCTS PURCHASED SHALL BE INSTALLED AND USED AT PURCHASER’S OR USER’S OWN RISK. FISO DISCLAIMS ALL LIABILITY WITH RESPECT TO ANY AND ALL USE OF
ITS PRODUCTS WITHOUT LIMITATION. IN NO EVENT SHALL FISO, ITS SHAREHOLDERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES OR RELATED CORPORATIONS OR ENTITIES, BE LIABLE
FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR RELATED TO THE PURCHASE, TRANSPORTATION, INSTALLATION OR USE OF FISO PRODUCTS (INCLUDING LOSS OF PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE), HOWEVER ARISING, WHETHER FOR BREACH OF WARRANTY OR IN TORT, EVEN IF FISO HAS BEEN PREVIOUSLY ADVISED OF THE INTENDED USE OF ITS PRODUCTS OR OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL FISO’S LIABILITY EXCEED THE TOTAL FEES PAID BY CUSTOMER WITH RESPECT TO THE PRODUCT(S) GIVING RISE TO THE LIABILITY.
5.INTELLECTUAL PROPERTY RIGHTS
Nothing in these Terms and Conditions shall be construed as conferring upon Purchaser any right whatsoever in and to FISO’s intellectual property, patents, trademarks, trade names, designs, know how or trade secrets, title to which shall remain with FISO. Purchaser shall not reverse engineer the Products or any part thereof.
6.EXPORT CONTROLS
Purchaser shall comply with all applicable regulations and laws in effect now and hereinafter, including compliance with all export controls on the distribution or dissemination of Products, technology, and information related to and/or exchanged under this Agreement.
7.NOTICES
All notices to FISO shall be deemed given when sent by fax with subsequent confirmation, or mailed by certified mail, return receipt, postage prepaid, or courier service or equivalent to:
FISO Technologies Inc.
500 ST-JEAN-BAPTISTE AVENUE
QUEBEC CITY, QUEBEC, CANADA G2E 5R9,
TEL. (418) 688-8065
FAX (418) 688-8067
sales@FISO.com
8.GENERAL PROVISIONS
FISO shall not be responsible for delays or failures in performance resulting from acts beyond its reasonable control. Purchaser shall indemnify, defend and hold harmless FISO and its related subsidiaries and affiliates and their respective employees, officers and directors, from and against all liabilities, costs, expenses (including reasonable attorneys’ fees), damages and losses including any direct, indirect or consequential losses or loss of profits suffered or incurred by any of them arising out of or in connection with any claim made against FISO arising out of Purchaser’s use of any Products. If any part or provision of these Terms and Conditions shall be found to be illegal or unenforceable therein, these Terms and Conditions shall remain in full force and effect and such part or provision shall be deemed stricken. FISO shall be entitled, in addition to its other rights hereunder, to recover reasonable fees of attorneys, accountants and other professionals including costs and fees on appeal. These Terms and Conditions represent the entire agreement between FISO and Purchaser relating to the purchase and sale of Products and supersede all prior representations including any quotation, memorandum of understanding, discussions, negotiations and agreements, whether written or verbal. No amendment to these Terms and Conditions shall be effective unless it is in writing, dated and signed by a FISO authorized representative. No waiver shall be implied from FISO’s conduct or failure to enforce its rights hereunder. No waiver shall be effective unless in writing signed on behalf of the party against whom the waiver is asserted. Purchaser may not assign any of its obligations, rights or remedies under these Terms and Conditions without the prior written consent of FISO, and any attempt at such assignments shall be null and void. Nothing contained herein shall be deemed to create any association, partnership, joint venture or relationship of principal, agent, master or servant between Purchaser and FISO, or to provide FISO or Purchaser with the right, power or authority to incur any obligation or make any representations, warranties or guarantees on behalf of the other party. These Terms and Conditions shall be governed by and construed in accordance with the laws of the province of Quebec, CANADA, applied without giving effect to any conflicts of law principles. All disputes relating to, or arising out of, this Agreement shall be subject to the exclusive jurisdiction and venue of the courts of the judicial district of Quebec City (Quebec) and the parties consent to the personal and exclusive jurisdiction and venue of these courts. The parties hereby irrevocably waive any defence of forum non convenience and agree to be bound by any judgment rendered thereby.