| TERMS AND CONDITIONS OF PURCHASE AND SALE 1. ORDERS a) No sales contract between Matrox Electronic System Ltd., Matrox Graphics Inc. or Matrox International Corp. (hereinafter described as "Matrox") and any person wishing to purchase any product of Matrox (hereinafter described as the "Buyer") will be binding on Matrox unless and until it is signed or countersigned by an authorized employee of Matrox's head office. b) The Buyer sending an order to Matrox is presumed to have renounced to its general terms and conditions of purchase and to any special condition which has not been agreed upon by Matrox, including any stipulation to the same effects as the present subsection. Any acceptance of a Buyer's order by Matrox is made upon the assumption that such a renunciation has been given by the Buyer. Such renunciation will be irrevocably presumed to have been given by the Buyer if the latter does not advise Matrox in writing of its refusal to renounce to its general terms and conditions of purchase within twenty-four (24) hours following the reception of Matrox's acceptance and in any event, before Matrox had commenced to fill the Buyers order. The reception of Matrox's acceptance will be presumed to occur to later than ten (10) days after the transmittal of the said acceptance. 2. PRICES - Listed prices do not include any item mentioned in subsections a and b. a) All charges for handling, insurance, transportation and storage of any product shall be paid by the Buyer. However, Matrox may, at the request of the Buyer, arrange for and prepay such charges with the understanding that these charges will subsequently be repaid to Matrox by the Buyer. These charges are due and payable upon receipt of an invoice relating to same. b) Any applicable tax, levy or duty (including sales and use tax, custom duties, licenses and fees, if applicable and how so ever designated) and resulting from the sale and delivery of the products sold, shall be payable by the Buyer. Upon demand the Buyer will pay to Matrox the total amount of any such tax, regardless of when or by whom payable. Matrox will cooperate with. and furnish the Buyer with any available notice, assessment and information in connection with the Buyer's obligation under this subsection. c) If any price has been determined on the basis of specifications or other data furnished or accepted by the Buyer, such price may be modified by Matrox in the event that such specification or data is subsequently modified, corrected or completed by the Buyer. d) Unless otherwise indicated, all prices for products to be delivered Canada are in Canadian dollars, all prices for products to be delivered elsewhere are in U.S. dollars and the terms of payment are net thirty (30) days after the invoice date at Matrox's head office. e) Any unpaid balance will bear interest at prevailing rates as determined by Matrox from time-to-time and such interest will itself bear interest at the same rate. f) In the event it becomes necessary to file a lawsuit to collect the amounts set forth on this order acknowledgement, the prevailing party shall be entitled to collect reasonable attorney's fees and court costs. g) The Buyer will be presumed to have accepted an invoice of Matrox and will not have the right to contest same unless it has done so in writing, within thirty (30) days following the invoice date. h) Claims for shortages must be made within ten (10) days after arrival. 3. TITLE AND DELIVERY - All shipments are F.O.B point of shipment. a) Matrox remains the sole owner of the products sold until receipt of full payment of any amount due by the Buyer under this document of any related agreement. b) Notwithstanding the preceding paragraph, the risk of loss, passes to Buyer upon delivery to carrier at F.O.B. point. c) In case of any loss, damage, destruction or theft of any or part of the products sold occurring after the moment mentioned in the preceding paragraph b, Matrox will not have the obligation to replace or repair any such loss, damaged, destroyed or stolen product or part thereof. d) Matrox will use its best efforts to respect any specified delivery date. Matrox will not be in any way responsible for any indemnity, penalty, damages, diminution of price nor will the sales contract be susceptible to modification, revision or cancellation because of any delay in the delivery of any product sold or part thereof. e) In the event of product shortages for any reason whatsoever, Matrox may allocate production among its customers. 4. CHANGES a) Buyer agrees not to cancel or reschedule any order scheduled for delivery within one hundred twenty (120) days. Upon written notice to Matrox, Buyer may cancel or reschedule any order schedule for shipment beyond one hundred twenty (120) days after Matrox receives Buyer's cancellation or rescheduling notice. b) Matrox will have the right to make engineering changes as well as changes to parts and material provided that such changes do not affect the form fit or function of the product. c) If Buyer's order is for custom modified product, Buyer is presumed to have accepted the specification for custom modifications attached to this acknowledgement if Buyer does not take exception to the specification by advising Matrox in writing within ten (10) days following the reception of this acknowledgement and in any event, before Matrox has commenced to fill Buyer's order. 5. WARRANTY a) THE PRESENT WARRANTY REPLACES AND CANCELS ANY OTHER CONTRACTUAL, LEGAL OR OTHER WARRANTY, GUARANTEE OR REPRESENTATION WHETHER EXPRESSED OR IMPLIED AND WHETHER BY STATUTE, CUSTOM, USAGE OF TRADE, COURSE OF DEALING OR OTHERWISE AND COVERS ONLY WHAT IS HEREIN SPECIFICALLY STATED. MORE PARTICULARLY, IT DOES NOT INCLUDE ANY IMPLIED OR OTHER WARRANTY AS TO MERCHANTABILITY, PERFORMANCE OR FITNESS FOR A PARTICULAR PURPOSE. b) MATROX WARRANTS THAT ANY PC COMPATIBLE BOARDS SOLD, WILL BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP FOR A PERIOD OF TWELVE (12) MONTHS FROM THE DATE OF SHIPMENT BY MATROX. MATROX WARRANTS THAT COLOR MONITORS AND ACCESSORIES SOLD, WILL BE FREE FROM DEFECTS AND MATERIAL AND WORKMANSHIP FOR A PERIOD OF NINETY (90) DAYS FROM THE DATE OF SHIPMENT BY MATROX. c) THE WARRANTY OBLIGATIONS OF MATROX ARE STRICTLY LIMITED TO THE REPAIR OF REPLACEMENT OF ANY DEFECTIVE EQUIPMENT OR PART THEREOF AS SPECIFIED ABOVE, AND IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL THE LIABILITY EXCEED THE UNIT PRICE PAID BY BUYER FOR ANY DEFECTIVE PRODUCT OR PART THEREOF, FURTHERMORE, IN NO EVENT AND UNDER NO CIRCUMSTANCE, SHALL MATROX BE LIABLE, WHETHER IN CONTRACT, IN TORT OR ON ANY OTHER BASIS, FOR ANY DAMAGES WHATSOEVER WHETHER SUCH DAMAGES ARE DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR ANY OTHER DAMAGES AND IRRESPECTIVE OF WHETHER BASED ON LOSS OF REVENUE, LOSS OF PRODUCTION, LOSS OF INVESTMENT, INTERUPTION OF BUSINESS OR ANY OTHER LOSS OF ANY CHARACTER WHATSOEVER AND WHETHER SADDENED BY BUYER OR ANY OTHER PERSON (INCLUDING WITHOUT LIMITATION, ANY EMPLOYEE, AGENT, INVITEE, CLIENT OR LICENSEE OF BUYER). d) THE PRESENT WARRANTY DOES NOT COVER;-ANY FAULTY, NEGLIGENT, IMPROPER MANIPULATION OR USE OF ANY PRODUCTS OR PART THEREOF OR ANY MANIPULATION OR USE WHICH IS NOT IN CONFORMITY WITH THE OPERATING AND MAINTENANCE MANUALS PROVIDED BY MATROX.; - NORMAL WEAR AND TEAR; - ANYTHING RESULTING FROM "FORCE MAJEUR"; - REPAIRS OR REPLACEMENTS WHICH HAVE NOT BEEN EXCLUSIVELY MADE OR AUTHORIZED BY MATROX; - ANY PRODUCTS FROM WHICH MATROX'S SERIAL NUMBER HAS BEEN REMOVED. e) THE PRODUCTS REPLACED OR REPAIRED BY MATROX IN ACCORDANCE WITH THE PRESENT WARRANTY ARE THEMSELVES WARRANTED FOR THE REMAINING TERM OF THE ORIGINAL WARRANTY. f) AS CONSIDERATION FOR THE WARRANTY OBLIGATIONS HEREIN ASSUMED BY MATROX. THE BUYER UNDERTAKES AND AGREES TO: - ADVISE MATROX IN WRITING OF THE EXISTANCE OF ANY DEFECT AS SOON AS POSSIBLE AFTER DISCOVERY OF SAME AND TO FURNISH WITH ALL DETAILS OF SUCH DEFECT; - PERMIT MATROX TO HAVE FREE ACCESS AT ALL REASONABLE TIMES TO ANY SUCH DEFECTIVE PRODUCT OF PART THEREOF; - ALL DEFECTIVE PRODUCTS COVERS BY THE FOREGOING WARRANTY SHALL, UNLESS OTHERWISE DIRECTED BY MATROX BE RETURNED TO MATROX AND MUST BE SHIPPED PREPAID AND THE PACKAGING MUST INDICATE A RETURNED MATERIALS AUTHORIZATION NUMBER ISSUED BY MATROX ON THE OUTSIDE. ALL SUCH DEFECTIVE PRODUCTS COVERED BY THIS WARRANTY IN ACCORDANCE WITH THE FOREGOING PROVISIONS SHALL BE REPAIRED OR REPLACED BY MATROX AT MATROX'S COST AND RETURNED TO MATROX BY BUYER F.O.B. ORIGINAL POINT OF DELIVERY. NO RETURNED PRODUCTS OR PART THEREOF WILL BE ACCEPTED BY MATROX WITHOUT PRIOR AUTHORIZATION BY MATROX AND MUST FURTHERMORE BE IDENTIFIED BY A RETURNED MATERIAL AUTHORIZATION NUMBER ISSUED BY MATROX. 6. CONFIDENTIAL INFORMATION a) The Buyer recognizes and admits that any invention, patent, trademark, trade name, industrial design, copyrightable document or object as well as any know-how or trade secret including, but without limitation, any software, information or document (hereinafter described as "Industrial Property") revealed or furnished by Matrox to the Buyer, its employees or agents used by Matrox in association with its products are the exclusive property of Matrox. b) The Buyer will hold in confidence any Industrial Property except that which is now or in the future becomes public knowledge through no fault of the Buyer and/or any person under its control and more particularly, the Buyer will take all necessary measures to maintain the confidentiality of such Industrial Property. 7. GENERAL PROVISIONS a) This document and any related agreement shall be governed by and construed in accordance with the laws of the Province of Quebec, Canada and the applicable laws therein. b) Matrox may assign all or any part of its rights and/or obligations hereunder to any Matrox affiliate or authorized distributor without Buyer's consent. Otherwise neither party shall delegate any obligations hereunder nor assigned any interest of rights without the written consent of the other. c) This document and any related agreement sets forth the entire agreement and understanding between the parties with respect the subject matter hereof and merges and supersedes all prior discussions, representations, understandings and agreements, whether oral or in writing between the parties with respect to the said subject matter, including any terms or conditions appearing on the Buyer's purchase orders. This document and any related agreement may be altered, modified or amended only by a written document signed by both parties. d) Any inconsistency which may exist between any terms and conditions of the document and that of any related agreement shall be resolved in favour the terms and conditions of this document unless such related agreement contains a specific mention that such terms and conditions are not applicable. e) If any term or provision of this document or any related agreement or the application thereof to any person or circumstance shall, to any extent, be decreed by a Court of competent jurisdiction to be invalid or unenforceable, the remainder of this document or any related Agreement, or the application of such term or provision to other person or circumstances, shall not be affected thereby. f) The parties hereto expressly requested that this Agreement be drafted in English. Les parties aux présentes ont expressément demandé que la présente convention soit rédigée en langue anglaise. |
