Nautalex Business Service Inc. Terms of Sale - Product
THESE TERMS AND CONDITIONS ("AGREEMENT") APPLY TO YOUR ORDER AND PURCHASE OF HARDWARE, SOFTWARE, THIRD-PARTY BRANDED SERVICES AND SUPPORT, AND NBS SKU’D SERVICES (COLLECTIVELY, "PRODUCT") SOLD BY NAUTALEX BUSINESS SERVICES INC. (“NBS”), through its website at Nautalex.com (the “Website”) or set forth in any purchase order as may be issued by you and accepted by NBS. You accept the terms and conditions of this Agreement, unless you have a separate purchase agreement governing the purchase of Product signed by both your company and NBS, in which case, that separate agreement will govern your purchase. NBS may, from time to time and at its sole option, revise this Agreement without notice by posting the revised agreement on the Website. The Agreement posted on the Website at the time NBS accepts your order will govern that purchase.
- Accuracy of Data/Corrections. NBS obtains certain data directly from the manufacturer, publisher or supplier of Products and is not responsible for pricing, typographical or other errors in any such data. In addition, availability of third party Product is subject to change without notice. NBS reserves the right to cancel orders related to such errors or Product discontinuation or unavailability, and to correct the Website at any time, including pricing errors not detected until after NBS's confirmation or e-mail response.
- Prices/Payment Terms. Your order is subject to review and acceptance by NBS. Prices are subject to change at any time prior to NBS's acceptance of your order and all orders are subject to NBS's credit approval. You must provide appropriate credit references upon request and authorize us to obtain credit history from such references.
- Nautalex requires a purchase order along with a 50% deposit prior to any product or service delivery. The balance is due and payable within the time frame and in the currency specified on the invoice, measured from the date of invoice. Titles to all products remain with Nautalex until full payment has been received. Liability is limited to the system value. Please allow two to four weeks delivery on most orders. Due to the ever-changing nature of the computer industry, some products may become unobtainable without prior notice. Should this occur, Nautalex reserves the right to substitute models, in which event we will inform you of the changes and work with you to select the best alternative.
- You agree to pay the total purchase price for the Products, plus any related taxes, environmental recycling fees (where applicable) and shipping (to the extent shipping is not prepaid by you), including shipping charges billed to NBS as a result of using your carrier account number or a carrier selected by you. Invoices are due and payable within the time frame and in the currency specified on the invoice, measured from the date of invoice. Where invoices are paid in a currency other than that specified on the invoice, you agree to remit payment to NBS for any losses incurred upon conversion of any payments received which result in a short-payment of such invoices. You agree to pay interest on all past-due amounts at the lower of one and one-half percent (1.5%) per month (18% per annum), or the maximum rate allowed by law. You will be responsible for NBS's costs of collection for any payment default, including, but not limited to, court costs, filing fees and legal fees. In addition, if payments are not received as described above, NBS reserves the right to suspend further deliveries until payment is received.
- Credits. You must expend or apply any credits issued to you by NBS for any reason within two years from the date the credit is issued. If not used within such period, credits will automatically expire.*
- Taxes. Federal, provincial and local sales, use and excise taxes and all similar taxes, environmental recycling fees and duties, (excluding taxes based on NBS's income, assets or net worth), as well as any customs or duties, are solely your responsibility. You may provide NBS a tax exemption certificate, which will be subject to review and acceptance by NBS.
- Delivery/Title/Risk of Loss. NBS will use commercially reasonable efforts to meet requested delivery times but does not guarantee delivery by a stated time and is not responsible for any damages due to delays or the failure to meet a stated delivery schedule. NBS reserves the right to make deliveries in installments. Delay in delivery of one installment will not entitle you to cancel other installments. Product will be delivered to you FOB Origin (NBS's facility or the facility of any of NBS's suppliers who drop ship direct), freight prepaid and added.** Title and risk of loss shall pass to you when Product is delivered to the transportation carrier. NBS is not responsible for insuring shipments, nor for any loss or damages to Product during shipment, and recommends you obtain insurance for shipments. Title and risk of loss for such shipments shall pass upon delivery at the requested delivery destination. Notwithstanding anything in this paragraph, title to software Product remains with the applicable licensor(s), and your rights and obligations related to software are contained in the license agreement between you and the licensor(s). To secure your payment obligations under this Agreement, you hereby grant to NBS a first-ranking security interest in the Product purchased under this Agreement. You authorize NBS to execute and file one or more financing statements or registration forms and agree to execute any paperwork required by NBS to secure or perfect any such security interest.
- Limited Warranty. TO THE FULLEST EXTENT ALLOWED BY LAW:
- PRODUCTS MANUFACTURED, PUBLISHED OR PROVIDED BY THIRD PARTIES ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY BY NBS OF ANY KIND, EITHER EXPRESS OR IMPLIED. NBS shall pass through to you, to the extent available, any manufacturer's/publisher's/supplier's written warranties associated with third party Products purchased from NBS. Although third-party services and support are considered "Product" and you may purchase such services through NBS, NBS is not obligated to provide the services or support. NBS accepts no liability for any claims arising out of any act or omission, including negligence, by your third-party service provider; and any amounts associated with third party services, including but not limited to taxes, will be collected solely in our capacity as an independent reseller of such Product.
- PRODUCT CODES BEGINNING WITH "IVC" (NBS VALUE CENTER) ARE SOLD "AS IS." IVC Products have been previously opened and/or the box has been damaged. IVC Products are not offered or sold as "new." The manufacturer's or publisher's warranty, if any, will apply and provide the sole coverage for such IVC Products. You must look to the manufacturer, publisher or supplier of third party Products for recovery on any claim of liability and will hold NBS harmless from any claim of negligence or breach of warranty.
- PRODUCTS PRODUCED SOLELY BY NBS ("NBS PRODUCT") ARE PROVIDED WITH ONLY THOSE WARRANTIES EXPRESSLY SET FORTH IN THE NBS PRODUCT SPECIFICATION. In addition to any non-excludable statutory remedies, your sole remedy and NBS’s sole obligation for breach of this warranty will be reasonable efforts to correct any non-conformance or, if this cannot be accomplished, then NBS will issue you a credit for, or a refund of, the purchase price and original freight paid for the NBS Product.
- Disclaimer of Warranty. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, LEGAL, STATUTORY OR IMPLIED, AND YOUR SOLE AND EXCLUSIVE REMEDIES. TO THE FULLEST EXTENT ALLOWED BY LAW, NBS DISCLAIMS ALL OTHER WARRANTIES, INCLUDING THE IMPLIED, LEGAL OR STATUTORY WARRANTIES OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. No agent or employee of NBS or any other party is authorized to make any warranty in addition to those made in this Agreement.
- Limitations on Use. You agree and represent that you are buying Product for your own internal business use and not for resale nor for your personal use as a consumer. If Product purchased under this Agreement is intended for export, it may be subject to export regulations. You accept full responsibility for and agree to comply fully with all export regulations, including obtaining export licenses. The export of Products may also alter or void the manufacturer's or publisher's warranty. PRODUCTS OFFERED BY NBS ARE NOT DESIGNED FOR USE IN LIFE SUPPORT, LIFE SUSTAINING, NUCLEAR SYSTEMS OR OTHER APPLICATIONS IN WHICH FAILURE OF SUCH PRODUCTS COULD REASONABLY BE EXPECTED TO RESULT IN PERSONAL INJURY, LOSS OF LIFE OR CATASTROPHIC PROPERTY DAMAGE. USE IN ANY SUCH APPLICATIONS IS AT YOUR SOLE RISK.
- Limitation of Liability. NBS WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, PROFITS, DATA, OPERATIONAL EFFICIENCY, USE OR INFORMATION, ARISING UNDER THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION OR THEORY OF RELIEF, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Any liability for direct damages arising under this Agreement, regardless of the form of action or theory of relief, is limited, to the fullest extent allowed by law, to the purchase price of the Product. No action arising out of the transactions under this Agreement may be brought by you more than one (1) year after the damage, loss or expense occurred. NBS is not liable for any claim made by a third party or made by you for a third party.
- Termination. You may cancel any order for Product at no charge up to five (5) business days prior to scheduled shipment upon written notice to NBS, unless such Product has been modified or otherwise reconfigured in accordance with your specifications. Cancellation shall not relieve your duty to pay for Products shipped, services performed or expenses incurred by NBS prior to such notice. If an order is cancelled prior to shipment, your sole remedy and NBS's sole obligation will be a full refund of the purchase price paid for the Product. Cancellation of orders following shipment must be made in accordance with the return policies of the manufacturer, publisher or supplier of the Product.
- Governing Law and Venue. This Agreement shall be governed by the substantive laws of the Province of Ontario and the laws of Canada applicable therein, without giving effect to any conflict of laws provisions. You are responsible for compliance with local laws, if and to the extent local laws are applicable. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Both parties to this Agreement specifically agree to submit to the exclusive jurisdiction of, and venue in, the courts of competent jurisdiction in the City of Toronto, Province of Ontario, Canada in any dispute arising out of or relating to this Agreement.
- Assignment. NBS may assign or subcontract all or any portion of its rights or obligations with respect to the sale of Products and/or assign the right to receive payments without your consent. You may not assign this Agreement or any of its rights or obligations without the prior written consent of NBS. Subject to the restrictions in assignment contained in this provision, this Agreement will be binding on and inure to the benefit of the parties hereto and their successors and assigns.
- Force Majeure. NBS will not liable for failure to fulfill its obligations under this Agreement or for delays in delivery or performance due to causes beyond its reasonable control. NBS's time for performance of any such obligation will be extended for the time period of such delay, or NBS may, at its options, cancel any order or remaining part thereof, without liability, upon notice to you.
- Miscellaneous. No provision of this Agreement may be waived, amended or modified by either party except by a written agreement signed by both you and NBS. Any delay or failure by either party to exercise any right or remedy will not constitute a waiver of that party to thereafter enforce such rights. The relationship between NBS and you is that of independent contractors and not that of employer/employee, partnership or joint venture. If any part of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable, all other parts will still remain in effect. Notices to be provided under this Agreement must be in writing and will be deemed received upon the earlier of: 1) actual receipt; 2) three (3) days after mailing, if mailed postage prepaid by regular mail or airmail; or 3) one (1) day after such notice is sent by courier or facsimile transmission. The terms and conditions applicable to all returns are set forth in NBS’s Return Policy located at NBS's Return Policy. Terms in effect at the time of Product purchase shall apply to any requested returns.
- Entire Agreement. This Agreement constitutes the entire agreement between us regarding this purchase of Products from NBS and supersedes and replaces any previous communications, representations or agreements. Any additional or different terms or conditions contained in any purchase order or other documents provided by you are considered material alterations to this Agreement, expressly rejected and will not be binding upon NBS.
- English. The Parties acknowledge that they have requested and consented that this Agreement and all documents, notices, correspondence and legal proceedings consequent upon, ancillary or relating directly or indirectly hereto, forming part hereof or resulting herefrom, be drawn up in English. Les Parties reconnaissent qu’elles ont expressément requis et consenti à ce que la présente entente et tous les documents, les avis, la correspondance et les procédures juridiques qui en découlent ou qui y sont afférents ou reliés, directement ou indirectement, qui font partie des présentes ou qui en résultent soient rédigés en langue anglaise.
*This provision does not apply to public sector customers.
**Product shipped to public sector customers will be delivered to you FOB Destination, freight prepaid and added. Title and risk of loss for such shipments shall pass upon delivery at the requested delivery destination.
Revised May, 2015