MYRIAD ELECTRONIC SOLUTIONS CANADA INC.
also doing business as ES-CANADA
STANDARD TERMS AND CONDITIONS OF SALE
Version 2.0 • Effective January 1, 2025
These terms and conditions govern the sale of all products and services by Myriad Electronic Solutions Canada Inc. (ES-Canada). Please read Sections 12 to 18 carefully: they set out the warranty given, exclude other warranties, allocate responsibility for the selection and use of products, and limit ES-Canada’s liability.
1. DEFINITIONS AND INTERPRETATION
1.1 In these Terms: “ES-Canada” means Myriad Electronic Solutions Canada Inc., also doing business as ES-Canada; “Buyer” means the person or entity purchasing Products or Services from ES-Canada; “Quote” means a written quotation issued by ES-Canada; “Order” means a purchase order or other request by Buyer for Products or Services; “Order Confirmation” means ES-Canada’s written acceptance of an Order; “Products” means the goods, components, equipment, parts, software and materials supplied by ES-Canada; “Services” means any installation, configuration, integration, programming, testing, repair, training or other services supplied by ES-Canada; “Solution” means any combination of Products, Services, designs, recommendations or technical information supplied or proposed by ES-Canada; and “Terms” means these terms and conditions of sale.
1.2 The word “including” and its derivatives mean “including without limitation”. Headings are for convenience only and do not affect interpretation. References to writing include email. All amounts are in Canadian dollars unless the Quote states otherwise.
1.3 These Terms are intended for sale to commercial, industrial, institutional and other business purchasers. Buyer represents that it is acquiring the Products and Services for business purposes and not as a consumer. Nothing in these Terms excludes or limits any right or remedy that cannot lawfully be excluded or limited.
2. SCOPE AND APPLICATION
2.1 All purchases by Buyer shall be governed exclusively by these Terms together with the applicable Quote and Order Confirmation. No modification, waiver or addition to these Terms shall be binding upon ES-Canada unless it appears on the applicable ES-Canada Quote or is set out in a writing signed by an authorized representative of ES-Canada.
2.2 It is recognized that the parties may, for their respective convenience, use standardized purchase order forms, order forms, confirmation forms or other documents which may contain terms in addition to or at variance with these Terms. It is expressly understood and agreed that such forms may be used but shall not add to, vary, supersede or displace these Terms, whether or not these Terms are referenced therein, and any such additional or conflicting terms are hereby rejected and shall be of no force or effect.
2.3 Buyer may assent to these Terms by referencing the ES-Canada Quote number on a purchase order, by written acknowledgement, by implication, or by acceptance of or payment for the Products ordered, any of which shall constitute assent to these Terms.
2.4 ES-Canada may amend these Terms from time to time. The version of these Terms in effect on the date of the applicable Quote shall govern the resulting Order.
2.5 In the event of conflict, the order of precedence is: (i) a written agreement signed by both parties; (ii) the ES-Canada Quote; (iii) the Order Confirmation; and (iv) these Terms.
3. QUOTATIONS, ORDERS AND ACCEPTANCE
3.1 A Quote is an invitation to Buyer to place an Order and does not constitute a binding offer. An Order placed by Buyer constitutes an offer to purchase on these Terms.
3.2 No Order is binding on ES-Canada until ES-Canada issues an Order Confirmation or ships the Products, whichever occurs first. ES-Canada may accept or decline any Order in whole or in part, including where credit has not been approved or where Product availability has changed.
3.3 ES-Canada may correct clerical, typographical or computational errors in any Quote, Order Confirmation or invoice at any time. Where a corrected price is materially higher, Buyer may cancel the affected undelivered portion of the Order by written notice within five (5) business days of being advised of the correction.
4. PRODUCTS, QUANTITIES AND PRICING
4.1 ES-Canada agrees to sell to Buyer the quantities of Products specified at the prices specified on the applicable ES-Canada Quote.
4.2 Prices are valid for thirty (30) days from the date of the Quote unless stipulated differently on the Quote. Quoted prices are based on the quantities quoted; reduced quantities may be repriced.
4.3 Prices include packaging in accordance with ES-Canada’s standard practice. Special packaging, marking, labelling, testing, kitting or documentation requested by Buyer will be charged in addition.
4.4 Where, after the date of the Quote and prior to shipment, ES-Canada’s cost of supply increases as a result of manufacturer price increases, currency fluctuation, tariffs, duties, surcharges, freight or allocation, ES-Canada may adjust the price on written notice to Buyer. Buyer may cancel the affected undelivered portion of the Order without charge by written notice given within five (5) business days of that notice; failing such notice the adjusted price applies.
4.5 For custom, programmed, assembled, cut, or manufactured-to-order items, ES-Canada may deliver and invoice a quantity within ten percent (10%) over or under the quantity ordered, and such delivery shall constitute full performance of the Order.
5. TAXES, DUTIES AND CHARGES
5.1 Prices do not include any taxes. Taxes will be added where ES-Canada is required by law to collect them and will be paid by Buyer unless Buyer provides a proper tax exemption certificate to ES-Canada.
5.2 Buyer is responsible for all customs duties, tariffs, anti-dumping and countervailing duties, brokerage fees, environmental and recycling levies, excise charges, and similar governmental charges relating to the Products, however arising and whenever assessed, including assessments made after delivery.
5.3 If ES-Canada is assessed any such amount that is properly Buyer’s responsibility, Buyer shall reimburse ES-Canada on demand.
6. PAYMENT TERMS AND CREDIT
6.1 Payment for the full Product purchase price and any related prepaid freight, transportation charges and taxes as itemized in ES-Canada’s invoice shall be made Net thirty (30) days from the date of invoice, provided Buyer’s credit request has been approved by ES-Canada. No discounts are authorized.
6.2 Each shipment shall be separately invoiced and paid for when due without regard to other shipments. Partial shipments may be invoiced as shipped.
6.3 All payments shall be made in full without set-off, deduction, withholding, abatement or counterclaim. Buyer shall not apply pending product returns or other account credits until a Credit Note is issued by ES-Canada.
6.4 Overdue amounts bear interest at the rate of one and one-half percent (1.5%) per month, being an equivalent rate of eighteen percent (18%) per annum, calculated monthly and not in advance, from the due date until paid in full, both before and after judgment, demand or default. Buyer shall reimburse ES-Canada for all reasonable costs of collection, including legal fees on a solicitor-and-own-client basis.
6.5 Credit terms and limits are extended at ES-Canada’s sole discretion and may be reduced, suspended or withdrawn at any time. ES-Canada may require prepayment, a deposit, a letter of credit, a personal or corporate guarantee, or other security as a condition of shipment.
6.6 Should Buyer fail to make any payment when due or default in any way, ES-Canada reserves the right to withdraw credit, withhold shipments, accelerate all outstanding amounts so that they become immediately due and payable, and suspend or cancel performance under any or all Orders from Buyer, without liability and without prejudice to any other remedy.
6.7 ES-Canada may apply any payment received to any outstanding invoice of Buyer as ES-Canada sees fit, notwithstanding any contrary designation by Buyer.
7. SECURITY INTEREST
7.1 As continuing security for payment of all amounts owing, Buyer grants to ES-Canada a purchase-money security interest in all Products supplied by ES-Canada, in all products into which they are incorporated, and in all proceeds thereof, until the purchase price and all other amounts owing have been paid in full.
7.2 Buyer authorizes ES-Canada to register financing statements and take such other steps as ES-Canada considers necessary to perfect that security interest under the Personal Property Security Act (British Columbia) and comparable legislation in any other jurisdiction, and shall execute such documents and provide such information as ES-Canada reasonably requests. To the extent permitted by law, Buyer waives its right to receive a copy of any financing statement, financing change statement or verification statement.
8. DELIVERY, TITLE AND RISK OF LOSS
8.1 The delivery date shown on any Quote or Order Confirmation represents ES-Canada’s best estimate of when ES-Canada will ship the Products to Buyer (the “Estimated Ship Date”). Prior to an Order Confirmation being issued by ES-Canada to Buyer, the estimated delivery date is subject to change without notice.
8.2 Delivery of the Products shall be F.O.B. point of shipment from ES-Canada’s warehouse location. Risk of loss or damage passes to Buyer upon delivery of the Products to the carrier at the point of shipment, notwithstanding that freight may be prepaid and added to the invoice.
8.3 Notwithstanding passage of risk, title to the Products remains with ES-Canada until the purchase price and all other amounts owing by Buyer have been paid in full.
8.4 Time is not of the essence with respect to delivery. ES-Canada shall not be liable for any loss, damage, penalty, liquidated damages or expense arising from late delivery or from any failure to meet an Estimated Ship Date, and late delivery shall not entitle Buyer to cancel or reject an Order except as expressly provided in these Terms.
8.5 ES-Canada may make partial or instalment shipments and may deliver in advance of the Estimated Ship Date.
8.6 Where Buyer fails or refuses to take delivery when the Products are ready, ES-Canada may store the Products at Buyer’s sole risk and expense, invoice the Products as if delivered, and charge reasonable storage and handling fees. If the Products remain unclaimed for thirty (30) days after notice, ES-Canada may dispose of or resell them and apply the net proceeds against amounts owing by Buyer, who shall remain liable for any deficiency.
8.7 Buyer is responsible for unloading, and for obtaining any import permits, licences, registrations or approvals required at destination.
9. INSPECTION, SHORTAGES AND DAMAGE CLAIMS
9.1 Buyer shall inspect all Products promptly upon receipt. Claims against ES-Canada for shortages, defects, damaged goods or deficiencies must be made in writing within five (5) days after receipt of shipment, failing which the Products shall be deemed to have been accepted by Buyer and to conform to the Order in all respects, without prejudice to Buyer’s rights under the warranty in Section 12.
9.2 Damage or shortage apparent on delivery must be noted on the carrier’s bill of lading or delivery receipt at the time of receipt. Buyer shall retain the shipping containers and packaging materials and make the Products available for inspection.
9.3 No Products may be returned to ES-Canada for any reason without a valid Return Material Authorization issued in accordance with Section 11.
10. CANCELLATION, RESCHEDULING AND CHANGES
10.1 Once an Order Confirmation has been issued, Orders may not be cancelled, reduced or rescheduled by Buyer except with ES-Canada’s prior written consent and upon payment of cancellation charges sufficient to indemnify ES-Canada against all resulting costs, including manufacturer cancellation charges, restocking charges, freight, labour, and any non-returnable inventory.
10.2 Orders for custom, programmed, modified, assembled, cut, special-order, non-stock or factory-scheduled Products, and any Products designated as non-cancellable/non-returnable (NCNR) on the Quote or Order Confirmation, are firm and may not be cancelled, reduced, rescheduled or returned for any reason other than a valid warranty claim.
10.3 Requests to reschedule delivery are subject to ES-Canada’s written approval. Where a shipment is deferred at Buyer’s request, ES-Canada may invoice on the original schedule and charge storage, insurance and handling fees.
10.4 Any change to an Order requested by Buyer must be in writing and is effective only when confirmed in writing by ES-Canada, and may result in adjustments to price, quantity and delivery schedule.
11. RETURN MATERIAL AUTHORIZATION (RMA) AND RETURNS
11.1 Prior to return of any Products to ES-Canada for any reason, Buyer shall first obtain a valid ES-Canada RMA number by advising ES-Canada of: quantity, part number, original purchase order number, original shipment number, original invoice number, serial number, and a detailed reason for the return. ES-Canada shall accept returns only after an RMA number has been issued by ES-Canada authorizing return of the Products.
11.2 Buyer shall promptly ship all authorized returns to ES-Canada’s designated address, freight prepaid by Buyer. Return shipments must be in the original packaging and must display appropriate reference to the issued RMA number on the containers in which the returned Products are shipped. RMA numbers are valid for thirty (30) days from issuance.
11.3 Unauthorized returns, or returns which fail to display appropriate reference to a valid RMA number, will be subject to return shipment to Buyer, freight collect, or may be refused at ES-Canada’s option.
11.4 Final approval by ES-Canada as to credit or replacement in the event of defective Product returns may be held pending verification of pertinent facts, inspection and/or testing by the original manufacturer.
11.5 Return of non-defective standard Products is subject to a minimum twenty-five percent (25%) restocking fee, and is permitted only where the Products are unused, in original unopened packaging, in resalable condition, currently stocked by ES-Canada, and returned within thirty (30) days of the date of invoice. Non-defective non-standard Products cannot be returned.
11.6 ES-Canada shall not be liable for reimbursement to Buyer of any non-refunded import duty, tax, freight or brokerage charge applicable to returned Products.
11.7 Products returned as defective that are found on inspection or testing to be within specification or to fall within the warranty exclusions in Section 13 will be returned to Buyer freight collect, and Buyer shall pay ES-Canada’s reasonable inspection, testing and handling charges.
12. WARRANTY
12.1 Subject to the exclusions and limitations in these Terms, ES-Canada warrants to Buyer that Products supplied by ES-Canada will, under normal use and service, be free from defects in material and workmanship for a period of twelve (12) months from the date of shipment by ES-Canada, unless a different warranty period is stated on the applicable Quote, Order Confirmation, invoice, product datasheet, or applicable manufacturer’s warranty documentation, in which case the different period stated shall govern.
12.2 Many Products are covered by warranties given by their original manufacturers. To the extent such warranties are assignable or transferable, ES-Canada assigns and passes through to Buyer the benefit of the manufacturer’s warranty for the Products. Where a manufacturer’s warranty is longer or broader than the warranty in clause 12.1, Buyer’s recourse in respect of the additional period or scope is against the manufacturer, and ES-Canada will provide reasonable assistance to Buyer in pursuing such a claim.
12.3 Buyer must notify ES-Canada in writing of any warranty claim promptly, and in any event within the warranty period and within thirty (30) days of the date the defect was discovered or ought reasonably to have been discovered, and must obtain an RMA in accordance with Section 11 before returning any Product.
12.4 ES-Canada’S SOLE OBLIGATION AND BUYER’S SOLE AND EXCLUSIVE REMEDY for breach of the warranty in clause
12.1 is, at ES-Canada’s option, repair of the Product, replacement of the Product with the same or a functionally equivalent product, or issuance of a credit or refund of the purchase price actually paid to ES-Canada for the affected Product.
12.5 Buyer shall pay freight and insurance for shipping the Product to ES-Canada; ES-Canada shall pay return freight by its standard method where the warranty claim is valid.
12.6 Products that are repaired or replaced under warranty are warranted for the remainder of the original warranty period or ninety (90) days from the date of the repair or replacement, whichever is longer. Replacement may be made with new, remanufactured or functionally equivalent product at ES-Canada’s option, and replaced parts become the property of ES-Canada.
12.7 Where ES-Canada supplies Services, ES-Canada warrants that the Services will be performed in a professional and workmanlike manner by suitably qualified personnel. Buyer must notify ES-Canada of any deficiency within ninety (90) days of performance, and ES-Canada’s sole obligation and Buyer’s sole and exclusive remedy is re-performance of the deficient Services or, at ES-Canada’s option, refund of the fees paid for those Services.
12.8 The warranty in this Section 12 extends only to Buyer and is not transferable to any subsequent purchaser or end user without ES-Canada’s prior written consent, and is void while any amount owing in respect of the Products remains unpaid.
13. WARRANTY EXCLUSIONS
13.1 The warranty in Section 12 does not apply to, and ES-Canada shall have no obligation or liability in respect of, any defect, failure, damage or non-performance arising from or relating to:
(a) normal wear and tear, or consumable, expendable or limited-life items including batteries, fuses, lamps, filters, seals and media;
(b) misuse, abuse, accident, neglect, vandalism, or operation outside the electrical, mechanical, thermal, humidity, vibration or environmental limits set out in the applicable specification or datasheet;
(c) improper installation, commissioning, configuration, programming, storage, handling, transport or maintenance, including electrostatic discharge, contamination, moisture ingress, improper grounding, power surge, brownout, lightning or supply irregularity;
(d) repair, disassembly, modification, alteration, re-marking, re-labelling or servicing of the Product by any person other than ES-Canada or a party authorized by ES-Canada in writing;
(e) use of the Product with hardware, software, firmware, accessories, consumables or components not supplied or approved by ES-Canada, or in a configuration or application not contemplated by the manufacturer;
(f) failure to follow the manufacturer’s or ES-Canada’s instructions, datasheets, application notes, service bulletins or recommended maintenance schedules;
(g) Products manufactured or supplied to Buyer’s own design, drawings, specifications, samples or instructions, or Products sourced at Buyer’s direction from other than the manufacturer’s authorized channel;
(h) Products from which serial numbers, date codes, labels or warranty markings have been removed, altered or defaced;
(i) software, firmware or embedded code, which is warranted (if at all) only by its licensor under the applicable licence terms, and which ES-Canada does not warrant will operate uninterrupted or error-free;
(j) damage occurring after risk of loss has passed to Buyer, including damage in transit, unless properly claimed under Section 9; and
(k) any cause external to the Product, or any use excluded by Section 16.
13.2 No description of the Products, specification, sample, drawing, datasheet, illustration, performance figure, catalogue or marketing material forms part of the contract or constitutes a warranty, condition or representation, and any such material is approximate and for guidance only.
13.3 Technical advice, application assistance, recommendations, design suggestions or product selection support provided by ES-Canada, whether or not at Buyer’s request, is provided as an accommodation and without charge or liability. Buyer uses and relies on such advice at its own risk, and such advice does not create, expand or extend any warranty.
14. DISCLAIMER OF OTHER WARRANTIES
14.1 THE WARRANTY SET OUT IN SECTION 12 IS GIVEN IN PLACE OF, AND TO THE FULLEST EXTENT PERMITTED BY LAW ES-CANADA EXPRESSLY EXCLUDES AND DISCLAIMS, ALL OTHER WARRANTIES, CONDITIONS, GUARANTEES, REPRESENTATIONS AND TERMS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, STATUTORY, BY OPERATION OF LAW, ARISING FROM COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR OR INTENDED PURPOSE, CORRESPONDENCE WITH DESCRIPTION OR SAMPLE, TITLE, QUIET POSSESSION, AND NON-INFRINGEMENT.
14.2 Buyer acknowledges that it is not a consumer, that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of ES-Canada which is not set out in these Terms, and that the exclusions in this Section are reasonable having regard to the price of the Products and the allocation of risk between the parties.
15. BUYER’S RESPONSIBILITY FOR SELECTION, APPLICATION AND USE
15.1 Buyer is solely responsible for determining whether the Products, Services and Solution are suitable, adequate and safe for Buyer’s intended purpose, application, environment and end product, and for verifying that they meet all requirements applicable to Buyer’s business, including performance, capacity, compatibility, reliability, certification and regulatory requirements.
15.2 Buyer is solely responsible for the design, engineering, specification, testing, qualification, validation, integration, installation, commissioning, operation, monitoring, maintenance, backup, cybersecurity and safe use of any system, equipment, process or end product into which the Products or Solution are incorporated, and for the acts and omissions of Buyer’s personnel, contractors and customers.
15.3 Buyer shall incorporate appropriate safeguards into its systems, including fail-safe design, redundancy, protective and limiting circuitry, alarms, guarding, surge and overcurrent protection, environmental control, and appropriate backup and disaster recovery measures, so that the failure or malfunction of any Product does not result in personal injury, death, loss of data, environmental harm or property damage.
15.4 Buyer is responsible for obtaining all approvals, permits, certifications and registrations applicable to Buyer’s end product or installation, and for compliance with all applicable laws, codes, standards and regulations governing its use of the Products and Solution.
15.5 SUBJECT ONLY TO THE EXPRESS WARRANTY AND EXCLUSIVE REMEDY SET OUT IN SECTION 12, ES-CANADA IS NOT RESPONSIBLE OR LIABLE FOR THE USE TO WHICH ANY PRODUCT, SERVICE OR SOLUTION IS PUT BY BUYER OR ANY OTHER PERSON, OR FOR ANY LOSS, DAMAGE, INJURY, COST OR EXPENSE ARISING OUT OF OR RESULTING FROM THE FAILURE, MALFUNCTION, NON-PERFORMANCE, DEFECT, UNAVAILABILITY OR UNSUITABILITY OF ANY PRODUCT, SERVICE OR SOLUTION, HOWEVER CAUSED.
15.6 Where ES-Canada resells the products of third-party manufacturers, ES-Canada acts as a distributor only. ES-Canada does not design or manufacture such Products and makes no representation as to their design, manufacture, materials, performance or fitness beyond the express warranty in Section 12.
16. PROHIBITED AND HIGH-RISK APPLICATIONS
16.1 The Products are not designed, tested, intended or authorized for use in, and Buyer shall not use or permit the use of the Products in, any life support, life-sustaining, critical care or surgical implant application, nuclear facility or radiation environment, aviation, aerospace, air traffic control, marine or rail safety system, weapons or munitions system, autonomous vehicle control, medical diagnostic or therapeutic device, or any other application in which the failure or malfunction of the Product could reasonably be expected to result in death, personal injury, severe property damage or severe environmental harm, unless ES-Canada has expressly agreed to that specific use in writing signed by an authorized representative.
16.2 Buyer shall not use the Products in any application prohibited by the manufacturer or by applicable law.
16.3 If Buyer uses or permits use of the Products contrary to this Section, Buyer does so entirely at its own risk, ES-Canada shall have no liability whatsoever in respect of such use, and Buyer shall indemnify, defend and hold harmless ES-Canada in accordance with Section 18 against all resulting claims, losses, damages, costs and expenses.
17. LIMITATION OF LIABILITY
17.1 ES-Canada shall not be liable for any failure or delay in performance, including any delay in delivery or non-delivery, due to causes beyond ES-Canada’s reasonable control, as further described in Section 25.
17.2 TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ES-CANADA BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF STATUTORY DUTY, INDEMNITY, RESTITUTION OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR AGGRAVATED DAMAGES, OR FOR ANY LOSS OF PROFIT, REVENUE, ANTICIPATED SAVINGS, PRODUCTION, USE, CONTRACT, GOODWILL, REPUTATION, OPPORTUNITY OR DATA; BUSINESS INTERRUPTION OR DOWNTIME; COST OF SUBSTITUTE OR REPLACEMENT GOODS, SERVICES OR FACILITIES; COST OF REMOVAL, REINSTALLATION, DE-INSTALLATION, REWORK, FIELD SERVICE, TESTING OR TRANSPORT; PRODUCT RECALL, WITHDRAWAL OR CORRECTIVE ACTION COSTS; DAMAGE TO OR LOSS OF OTHER PROPERTY OR EQUIPMENT; ENVIRONMENTAL REMEDIATION COSTS; OR THIRD-PARTY CLAIMS AGAINST BUYER, EVEN IF ES-CANADA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES WERE FORESEEABLE.
17.3 TO THE FULLEST EXTENT PERMITTED BY LAW, ES-CANADA’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH ANY ORDER, PRODUCT, SERVICE OR SOLUTION, OR THE USE, PERFORMANCE OR FAILURE THEREOF, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTE, INDEMNITY OR OTHERWISE, SHALL NOT EXCEED THE PURCHASE PRICE ACTUALLY PAID TO ES-CANADA BY BUYER FOR THE SPECIFIC PRODUCT OR SERVICE THAT GAVE RISE TO THE CLAIM.
17.4 The limitations and exclusions in this Section apply to the maximum extent permitted by law, apply to ES-Canada and to its affiliates, directors, officers, employees, agents, contractors and suppliers, apply regardless of the number or form of claims, and shall survive and continue to apply notwithstanding the failure of the essential purpose of any limited or exclusive remedy provided in these Terms.
17.5 Buyer acknowledges that the prices charged by ES-Canada reflect the allocation of risk set out in these Terms, that ES-Canada would not supply the Products or Services on these prices without these limitations, and that this allocation of risk is a fundamental basis of the bargain between the parties. Buyer is responsible for obtaining and maintaining insurance appropriate to its use of the Products and Solution.
17.6 To the fullest extent permitted by law, no claim, action or proceeding arising out of or in connection with any Order, Product, Service or Solution may be brought by Buyer more than twelve (12) months after the date on which the cause of action arose.
18. INDEMNIFICATION BY BUYER
18.1 Buyer shall indemnify, defend and hold harmless ES-Canada and its affiliates, directors, officers, employees, agents and suppliers from and against any and all claims, demands, actions, proceedings, liabilities, losses, damages, fines, penalties, costs and expenses (including reasonable legal fees on a solicitor-and-own-client basis) arising out of or in connection with:
(a) Buyer’s use, misuse, application, installation, integration, resale, distribution or disposal of the Products, Services or Solution;
(b) any end product, system or process of Buyer into which the Products are incorporated, including claims for personal injury, death, property damage, product liability or recall;
(c) Buyer’s breach of these Terms or of any representation, warranty or covenant given by Buyer;
(d) any design, drawing, specification, sample, instruction, software, marking or material supplied or directed by Buyer, including any claim that it infringes third-party intellectual property rights;
(e) use of the Products in any application described in Section 16; and
(f) Buyer’s violation of any applicable law, including export control, sanctions, environmental, health and safety, and anti-corruption laws.
18.2 This indemnity survives delivery, acceptance, payment, inspection and termination, and applies notwithstanding any limitation on ES-Canada’s liability in these Terms.
19. INTELLECTUAL PROPERTY
19.1 Sale of the Products conveys no licence, express or implied, under any patent, copyright, trademark, industrial design, trade secret, mask work or other intellectual property right of ES-Canada, its affiliates or its suppliers, other than the right to use and resell the Products in the form supplied.
19.2 ES-Canada gives no warranty, representation or indemnity against infringement of third-party intellectual property rights. Any indemnity available in respect of the Products is that of the original manufacturer only, and ES-Canada will, on request, pass through to Buyer the benefit of any such indemnity to the extent it is assignable.
19.3 Buyer shall not remove, obscure, alter or add to any trademark, trade name, serial number, date code, label, marking or notice on the Products or their packaging, and shall not reverse engineer, decompile, disassemble, re-mark or re-label the Products.
19.4 All drawings, specifications, designs, technical data, know-how, quotations, software and documentation supplied or made available by ES-Canada remain the property of ES-Canada or its suppliers, and shall be used by Buyer only for the purpose of the applicable Order.
20. SOFTWARE AND THIRD-PARTY LICENCES
20.1 Any software, firmware or embedded code supplied with or as part of the Products is licensed, not sold, and is subject to the applicable licensor’s end user licence agreement, subscription terms, or open source licence terms, which Buyer agrees to accept and comply with, and which prevail over these Terms in respect of that software.
20.2 ES-Canada grants no rights in such software beyond those granted by the licensor, and has no obligation to provide updates, upgrades, patches, support or maintenance except as expressly agreed in writing.
20.3 Buyer is responsible for the security of its own networks, systems and data, and for applying manufacturer-issued security updates to the Products.
21. CONFIDENTIALITY
21.1 Each party shall keep confidential all non-public information disclosed by the other party that is marked confidential or that a reasonable person would understand to be confidential, including ES-Canada’s pricing, quotations, discounts, sources of supply, technical information and business plans, and shall use it only for the purposes of the Order.
21.2 These obligations continue for three (3) years from the date of disclosure and do not apply to information that is or becomes public through no breach of these Terms, is lawfully received from a third party without restriction, is independently developed, or is required to be disclosed by law or court order, provided that reasonable notice is given where lawful.
22. COMPLIANCE WITH LAWS, EXPORT CONTROL AND SANCTIONS
22.1 The Products, and the technology, documentation and software supplied with them, may be subject to export, re-export and import control laws, including the Export and Import Permits Act (Canada), the Special Economic Measures Act (Canada), the United Nations Act (Canada), and the export control and sanctions laws of the United States and other jurisdictions.
22.2 Buyer shall comply with all such laws and shall not, directly or indirectly, sell, export, re-export, transfer, divert, release or otherwise dispose of any Product, technology, documentation or software to any country, entity, person or end use prohibited or restricted by those laws, or to any person listed on an applicable restricted or sanctioned party list, without the prior authorization of the competent government authority.
22.3 Buyer shall not use or permit the use of the Products in connection with the design, development, production, stockpiling or use of nuclear, chemical or biological weapons, missile technology, or any prohibited military or intelligence end use.
22.4 Buyer shall provide, on request, end-use and end-user statements, destination control statements and any other documentation reasonably required by ES-Canada or by any government authority, and shall keep records of the disposition of the Products as required by law.
22.5 All obligations of ES-Canada are subject to the granting and continuance of any required export, import or re-export licence, permit or authorization. Where such an authorization is delayed, denied, revoked or made subject to conditions unacceptable to ES-Canada, or where ES-Canada reasonably believes that performance would contravene applicable trade control or sanctions laws, ES-Canada may delay, suspend or cancel the affected Order without liability, and any such cancellation shall not constitute a breach of these Terms.
22.6 Buyer shall indemnify ES-Canada in accordance with Section 18 in respect of any breach of this Section.
23. ANTI-CORRUPTION AND BUSINESS CONDUCT
23.1 Each party shall comply with all applicable anti-bribery and anti-corruption laws, including the Corruption of Foreign Public Officials Act (Canada), and shall not offer, promise, give, request or accept any improper payment or advantage in connection with the Products, Services or these Terms.
23.2 Buyer shall not make any representation, warranty or commitment on behalf of ES-Canada or any manufacturer, and shall not describe itself as an agent of ES-Canada.
24. PRODUCT CHANGES, DISCONTINUATION AND SOURCING
24.1 Manufacturers may change specifications, designs, materials, processes, packaging, country of origin, firmware or documentation, may issue product change notifications, and may discontinue or declare end-of-life for Products, in each case without notice to ES-Canada or Buyer. ES-Canada may supply Products incorporating such changes, and shall have no liability arising from any such change, discontinuation or end-of-life declaration.
24.2 Buyer is responsible for reviewing the current manufacturer datasheet, specification and product change notifications applicable to any Product before use, and for re-qualifying its application where necessary.
24.3 ES-Canada sources Products through manufacturer-authorized channels where reasonably practicable. Where, at Buyer’s request or direction, ES-Canada sources Products from the open market, a broker or another non-authorized source, Buyer accepts the risks associated with such sourcing, including the risk of counterfeit, refurbished, remarked or non-conforming product, and the warranty in Section 12 does not apply to those Products.
24.4 ES-Canada may allocate available supply among its customers in a fair and reasonable manner during shortages, allocations or supply disruptions, and may substitute a functionally equivalent product with Buyer’s prior written consent.
25. FORCE MAJEURE
25.1 ES-Canada shall not be liable for any delay in, failure of, or inability to perform any obligation (other than an obligation to pay money) where such delay, failure or inability arises from any cause beyond its reasonable control, including: acts of God, fire, flood, earthquake, extreme weather or natural disaster; epidemic, pandemic or public health emergency; war, terrorism, civil unrest, riot or sabotage; cyberattack, ransomware or failure of telecommunications or utilities; strike, lockout or labour dispute; act, order, embargo, sanction, tariff, quota, permit denial or other action of any government or regulatory authority; shortage or allocation of materials, components, semiconductors, energy, transport or labour; carrier, port or border delay or disruption; failure, delay or default of a manufacturer, supplier or subcontractor; and manufacturer discontinuation or end-of-life of a Product.
25.2 ES-Canada shall notify Buyer of any such event and the time for performance shall be extended for the duration of the event. If the event continues for more than sixty (60) days, either party may cancel the affected undelivered portion of the Order by written notice, and ES-Canada’s only obligation shall be to refund amounts paid for Products not delivered, less any non-recoverable costs incurred by ES-Canada in respect of non-cancellable or custom Products.
26. DEFAULT AND TERMINATION
26.1 Each of the following constitutes an event of default by Buyer: failure to pay any amount when due; breach of any provision of these Terms; any material misrepresentation made to ES-Canada; any material adverse change in Buyer’s financial condition or creditworthiness; and Buyer becoming insolvent, ceasing to carry on business, making an assignment for the benefit of creditors, filing or having filed against it any proceeding under bankruptcy, insolvency, receivership or restructuring legislation, or having a receiver, trustee or liquidator appointed.
26.2 On the occurrence of an event of default, ES-Canada may, without liability and in addition to any other right or remedy available at law or in equity: withhold, suspend or stop delivery of Products in transit; require prepayment or security as a condition of further performance; declare all amounts owing immediately due and payable; suspend, cancel or terminate any or all Orders and any credit facility; enter Buyer’s premises and repossess unpaid Products; and recover all resulting costs, losses and expenses from Buyer.
26.3 Termination or cancellation of any Order does not affect any right or obligation that has accrued prior to termination, and does not relieve Buyer of its obligation to pay for Products delivered and Services performed.
27. NOTICES
27.1 Notices under these Terms shall be in writing and delivered by hand, by courier, by registered mail or by email to the addresses shown on the Quote, Order Confirmation or invoice, or to such other address as a party may designate in writing.
27.2 Notices are deemed received: on delivery, if delivered by hand or courier; on the fifth business day after mailing, if sent by registered mail; and on the business day of transmission, if sent by email before 5:00 p.m. local time at the recipient’s address, failing which on the next business day.
28. ASSIGNMENT AND SUBCONTRACTING
28.1 Buyer shall not assign these Terms or any Order, in whole or in part, or any rights or obligations hereunder, without the prior written consent of ES-Canada, and any purported assignment without such consent is void. A change of control of Buyer constitutes an assignment for the purposes of this Section.
28.2 ES-Canada may assign, transfer or subcontract any of its rights or obligations without Buyer’s consent, including to an affiliate or in connection with a sale of all or substantially all of its business or assets.
28.3 These Terms enure to the benefit of and bind the parties and their permitted successors and assigns.
29. GOVERNING LAW AND JURISDICTION
29.1 These Terms and any Order, and any non-contractual obligations arising out of or in connection with them, shall be construed in accordance with and governed by the laws of the Province of British Columbia and the federal laws of Canada applicable therein, without regard to conflict of laws principles.
29.2 The parties irrevocably attorn and submit to the exclusive jurisdiction of the courts of the Province of British Columbia sitting in Vancouver, and waive any objection based on venue or forum non conveniens, provided that ES-Canada may bring proceedings to collect amounts owing, to enforce its security interest, or to obtain injunctive relief, in any court of competent jurisdiction.
29.3 The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms or to any Order.
30. GENERAL
30.1 These Terms, together with the applicable Quote and Order Confirmation, constitute the entire agreement of the parties regarding the Products and Services listed on the Quote, and supersede and replace all prior or contemporaneous agreements, understandings, negotiations, proposals and representations, written or verbal, between the parties relating to their subject matter.
30.2 No waiver of any provision of these Terms is effective unless in writing and signed by the waiving party. Failure or delay by ES-Canada in exercising any right or remedy does not constitute a waiver of that or any other right or remedy, and no single or partial exercise precludes any further exercise.
30.3 If any provision of these Terms is held to be invalid, illegal or unenforceable in whole or in part, that provision shall be severed or read down to the minimum extent necessary, and the remaining provisions shall continue in full force and effect. In particular, if any limitation or exclusion of liability is held unenforceable, the remaining limitations and exclusions shall continue to apply.
30.4 The provisions of these Terms which by their nature are intended to survive, including Sections 6, 7, 12 through 22, 29 and 30, shall survive delivery, inspection, acceptance, payment, cancellation and termination.
30.5 Nothing in these Terms creates any partnership, joint venture, agency, franchise or employment relationship between the parties. The parties are independent contractors.
30.6 Except for the affiliates, employees, agents, suppliers and manufacturers of ES-Canada, who may rely on the limitations, exclusions and indemnities in these Terms, no person who is not a party to these Terms has any right to enforce any provision of them.