Terms and Conditions of Sales
Excelwave Technologies Inc. Terms and Conditions of Sales
- Products- Any products or service provided by Excelwave Technologies Inc. (“EWT”).
- Services- Any services provided by EWT as described in one or more Service Agreements.
- Purchaser- The person, firm or company purchasing products or services supplied by EWT.
- Service Agreement- Service contracts, including "Service Descriptions", "Statements of Work”, and any other such mutually agreed upon documents.
- Deliverables- The tangible and intangible materials, including reports, studies, base cases, drawings, findings, manuals, procedures, and recommendations prepared by EWT in the course of performing the Services.
- Materials- All content and other items included with or as part of the Products, Services, Software, or Deliverables, such as text, graphics, logos, button icons, images, information, data, photographs and graphs.
By placing order, Purchaser accepts and is bound to the Terms and Conditions of Sales below:
All prices shown on EWT’s Price List are FOB Toronto, Canada (unless otherwise noted), and are subject to change without prior notice. Price includes standard packing. Additional charge will be applied for special packaging. The prices charged for Products and Services purchased under this Agreement shall be the amounts set forth on EWT’s quotation, or as provided by the applicable invoice or Service Agreements relating to such Services. Quoted prices will remain in effect only until the expiration date of the quote or EWT’s acceptance of your order, and such prices are subject to shortages in materials or resources, increases in the cost of manufacturing, or other factors.
All quotes are FOB Toronto, Canada, unless otherwise noted. Only written quotations are valid.
All orders are subject to acceptance or cancellation by EWT, in EWT’s sole discretion. All orders must be provided along with EWT’s product model name, specification, custom operation frequencies and other important parameters. Any optional configuration must be specified in the order. Purchaser will be fully responsible for any cost associated with incorrect or incomplete information provided in the purchase order.
Terms of payment are within EWT's sole discretion, and unless otherwise agreed to by EWT, payment must be received by EWT prior to EWT's acceptance of an order. Each accepted order will be interpreted as a single Agreement, independent of any other orders. Payment for Products and Services must be made by wire transfer, electronic funds transfer or some other prearranged payment method unless credit terms have been agreed to by EWT. Payment to EWT in respect of Products and Services, as applicable, shall be made to the account indicated by EWT (as may be amended from time to time). Timely payment of the price and all charges is of the essence. It is the responsibility of Purchaser to ensure payments are authorized and approved on time to ensure receipt of payment no later than the due date; in no case shall EWT be responsible for ensuring such authorization or approval. Past due accounts are subject to a late charge of 2.0% month, beginning 30 days after the date of issuance of EWT’s valid invoice. Late penalties will be recalculated every 30 days thereafter based on Purchaser’s current outstanding balance. In addition, EWT, without waiving any other rights or remedies to which it may be entitled, shall have the right to suspend or terminate any or all Services and refuse additional orders for Products or Services from Purchasing until EWT's receipt of all overdue amounts. EWT shall have no liability to Purchaser for any such suspension or termination of services or for its refusal of additional orders. EWT further reserves the right to seek collection of all overdue amounts plus all reasonable legal fees (including reasonable attorney’s fees) and costs associated with such collection. Purchaser shall make the payment of the corresponding price and costs in the currency identified by EWT in its invoice. Additional charges will apply if Purchaser requests Services that are performed outside of contracted hours or are beyond the normal coverage for the particular Service, such as customized invoicing, consolidated invoicing, and statements. EWT reserves the right to change the method of delivery of all documentation, and any additional changes requested by Purchaser may be subject to additional charges.
Other than where up-front payment in full was required prior to acceptance by EWT of an order, Invoices will be due and payable within the time period noted on EWT’s invoice to Purchaser, or if not noted, then within 30 days, measured from the date of the invoice, subject to continuing credit approval by EWT, such approval may be revoked without further notice from EWT. EWT may invoice parts of an order separately or may invoice purchases of the Products and Services in one invoice to Purchaser. EWT is not responsible for pricing, typographical, or other errors in any offer, and reserves the right to cancel orders arising from such errors. Purchaser agrees that all invoices shall be deemed accurate unless Purchaser advises EWT in writing of a bona fide, material error within fourteen (14) days of the date of such invoice. In the event that Purchaser advises EWT of a material error, (1) payment of any amounts corrected or modified by EWT in writing shall be due within fourteen (14) days of such correction, and (2) all other amounts shall be paid by purchaser by the invoice due date. In the event Purchaser withholds payment of any invoiced amounts upon an assertion by Purchaser that such amounts are erroneous, and EWT subsequently concludes that such invoiced amounts are accurate, Purchaser shall pay interest on such amounts as described above from the due date for such amounts until EWT's receipt of those amounts. In no case shall Purchaser be entitled to offset, defer or deduct any invoiced amounts that EWT determines are not erroneous following the notification process set forth above.
Shipping Charges, Title, Risk of Loss
Taxes, environmental disposal surcharges, and shipping and handling charges are not included in Product prices unless expressly indicated at the time of sale. Title to Products passes from EWT to Purchaser upon shipment to Purchaser. Loss or damage that occurs during shipping by a carrier selected by EWT is EWT's responsibility. Loss or damage that occurs during shipping by a carrier selected by Purchaser is Purchaser’s responsibility. Shipping and delivery dates are provided as estimates only. Purchaser must notify EWT within 21 days of the date of Purchaser’s invoice or acknowledgement if Purchaser believes any part of Purchaser’s order is missing, wrong, or damaged.
Unless Purchaser provides EWT with a valid and accurate tax-exemption certificate applicable to the Product purchase and ship-to location, Purchaser is responsible for sales tax and any other taxes or governmental fees associated with the order. Purchaser may qualify for tax exemptions from time to time in which case EWT requests that Purchaser provides it with a valid certificate of exemption or other appropriate documentary proof of exemption. The charges stated in the order or any invoice shall be inclusive of all duties, levies or any similar charges and shall exclude GST, PST, HST or other equivalent sales or use tax. Unless otherwise specified in writing by EWT, Purchaser shall pay all freight, insurance, and taxes (including but not limited to import or export duties, sales, use, value add, and excise taxes). EWT shall provide Purchaser with a valid invoice in accordance with applicable law. In the event that Purchaser is required by law to make a withholding or deduction in respect of the price payable to EWT, Purchaser will make the relevant payments to EWT net of the required withholding or deduction. Purchaser will supply to EWT evidence (e.g. official withholding tax receipts), to the reasonable satisfaction of EWT, that Purchaser has accounted to the relevant authority for the sum withheld or deducted. If such evidence is not provided to EWT within 60 days of remittance to the applicable tax authority, EWT will impose a penalty payment on Purchaser, and Purchaser will be liable for such penalty, in the amount of the withholding imposed on that particular transaction.
Changed or Discontinued Products or Services
EWT's policy is one of ongoing update and revision. EWT may revise or discontinue Product or Services offerings at any time without prior notice to Purchaser. A change in a Product or Service may occur after a Purchaser places an order but before EWT ships the Product or performs the Service. As a result, Products or Services Purchaser receives might display minor differences from the Products or Services Purchaser orders. However, the EWT-branded Products and Services will meet or exceed all material specifications of such order. Parts used in repairing or servicing Products may be new, equivalent-to-new, or reconditioned.
- All EWT products are warranted against defects in materials and workmanship under normal use and service for a period of one (1) year from date of shipment. This limited warranty does not extend to any of EWT’s products that have been subject to alternation, tampering, misuse, neglect, accident, vandalism, Purchaser specified carrier’s shipping damage, problems with electrical power, improper installation or application, nor shall it extend to units which have been substantially repaired or altered outside EWT’s factory, EWT is not liable for replacement of any product damaged by lightning or any other acts of God.
- No material is accepted for replacement or repair without written authorized from EWT. All shipping charges on returned material must be prepaid. Replacement or repair is made only after examination at the factory shows defective material or workmanship at the time of manufacture.
- It is understood that this statement constitutes EWT’s entire and only warranty, there being no other warrantees expressed or implied in law or in fact, including implied warrantees or fitness. In no event shall EWT be liable for damages, to the user or third party, either direct or consequentially, that may be occasioned by any defect in materials, workmanship or product support.
- EWT is in no event liable for consequential damages or other costs of any nature as a result of the use of the products manufactured by EWT. No representative is authorized to assume for EWT any other liability in connected with EWT products. This warranty is in lieu of all other, either expressed or implied.
- EWT’s total liability for any and all claims arising out of or in connection with this agreement (including any products or services provided hereunder) in any 12-month period shall not exceed the total amount paid by Purchaser during this prior 12 months of this agreement for the specific product or service giving rise to such claim(s).
- These limitations, exclusions and disclaimers shall apply to all claims for damages, whether based in contract, warranty, strict liability, negligence, tort, or otherwise. The parties agree that these limitation of liability are agreed allocations of risk constituting in part the consideration for EWT’s sale of products or services to Purchaser, and such limitations will apply notwithstanding the failure of essential purpose of any limited remedy and even if a party has been advised of the possibility of such liabilities.
Returns and Exchanges
Credit not exceeding 70% of the invoiced price may be allowed to the original purchaser upon the return of unused material, provided it is received prepaid and in new and unused condition. Before returning or exchanging a Product, Purchaser must contact EWTdirectly to obtain an authorization number (RMA) to include with the return. Purchaser must return Products to EWT in their original or equivalent packaging, and Purchaser is responsible for risk of loss, shipment damage, as well as shipping and handling fees. Additional fees, including a 30% restocking fee, will apply. If Purchaser fail to follow the return or exchange instructions provided by EWT, EWT will not be responsible for any loss, damage, or modification of a Product, or processing of a Product for disposal or resale. Credit for partial returns may be less than invoice or individual component prices due to bundled or promotional pricing associated with the original purchase. Return authorizations are valid only within ninety (90) days after shipment from EWT. Custom and discontinued products will be evaluated separately.
EWT may provide Services to Purchaser in accordance with one or more Service Agreements. Each Service Agreement will be interpreted as a single agreement, independent of any other Service Agreement, so that all of the provisions are given as full effect as possible.
All right, title, and interest in the intellectual property (including all copyrights, patents, trademarks, trade secrets, and trade dress) embodied in the Products and Materials, as well as the methods by which the Services are performed and the processes that make up the Services, shall belong solely and exclusively to EWT, and Purchaser shall have no rights whatsoever in any of the above, except as expressly granted in this Agreement. The Products and Materials are protected pursuant to copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Purchaser may not modify, remove, delete, augment, add to, publish, transmit, adapt, translate, participate in the transfer or sale of, create derivative works from, or in any way exploit any of the Materials, in whole or in part.
EWT will retain exclusive ownership of all Deliverables, and will own all intellectual property rights, title, and interest in any ideas, concepts, know-how, documentation, and techniques associated with such Deliverables. Subject to payment in full for the applicable Services, EWT grants Purchaser a non-exclusive, non-transferable, royalty-free right to use the Deliverables solely in the country or countries in which Purchaser does business, solely for Purchaser’s internal use, and solely as necessary for Purchaser to enjoy the benefit of the Services as stated in the applicable Service Agreements.
Important Additional Information
Nothing in this section shall exclude or limit EWT’s Warranty or liability for losses that may not be lawfully excluded or limited by applicable law.
EWT reserves the right to change the specifications of any of its products without prior notice.
In connection with this Agreement, each party may have access to or be exposed to information of the other party that is not generally known to the public, such as product plans, pricing, marketing and sales information, customer lists, "know-how," or trade secrets, which may be designated as confidential or which, under the circumstances surrounding disclosure, ought to be treated as confidential (collectively, "Confidential Information "). Confidential Information may not be shared with third parties unless such disclosure is to the receiving party's personnel, including employees, agents, and subcontractors, on a "need-to-know" basis in connection with this Agreement, so long as such personnel have agreed in writing to treat such Confidential Information under terms at least as restrictive as those herein. Each party agrees to take the necessary precautions to maintain the confidentiality of the other party's Confidential Information by using at least the same degree of care as such party employs with respect to its own Confidential Information of a similar nature, but in no case less than a commercially reasonable standard of care to maintain confidentiality. The foregoing shall not apply to information that (1) was known by one party prior to its receipt from the other or is or becomes public knowledge through no fault of the recipient; or (2) is rightfully received by the recipient from a third party without a duty of confidentiality. If a recipient is required by a court or government agency to disclose Confidential Information, the recipient shall provide advance notice to other party before making such a disclosure. The obligations with respect to Confidential Information shall continue for two years from the date of disclosure.
Purchaser acknowledges that the Products and Services provided under this Agreement, which may include technology, is subject to the customs and export control laws and regulations of Canada and the United States ("U.S."), may be rendered or performed either in Canada, the U.S., in countries outside of Canada and the U.S., or outside of the borders of the country in which Purchaser or Purchaser’s system is located, and may also be subject to the customs and export laws and regulations of the country in which the Products or Services are rendered or received. Purchaser agrees to abide by those laws and regulations. EWT’s acceptance of any order for Products or Services is contingent upon the issuance of any applicable export license required by the Canadian government, the U.S. Government or any other applicable national government; EWT is not liable for delays or failure to deliver Products or Services resulting from Purchaser’s failure to obtain such license or to provide such certification. Each Party agrees to indemnify, defend and hold the other harmless from any third-party claims, demands, or causes of action against the other due to the indemnifying party's violation or alleged violation of the applicable export laws, regulations or orders.
EWT is not responsible for determining whether any Product or Service satisfies the local regulatory requirements of the country to which such Products or Services are to be delivered, and EWT shall not be obligated to provide any Product or Services where the resulting Product or Services do not satisfy the local regulatory requirements.
Entire Agreement and Severability
This Agreement is the entire agreement between Purchaser and EWT with respect to its subject matter and supersedes all prior oral and written understandings, communications, or agreements between Purchaser and EWT. Any preprinted terms on Purchaser’s purchase order shall be given no force or effect and no terms of a purchase order that conflict with this Agreement shall be binding on EWT. No amendment to or modification of this Agreement, in whole or in part, will be valid or binding unless it is in writing and executed by authorized representatives of both parties. If any provision of this Agreement should be found to be void or unenforceable, such provision will be stricken or modified, but only to the extent necessary to comply with the law, and the remainder of this Agreement will remain in full force and will not be terminated.
EWT reserves the right to update this Agreement at any time.