General Sales Terms and Conditions
1. Prices are exclusive of sales, uses, transfer, or similar taxes including for greater certainty the Goods and Service Tax. Customer agrees to pay any tax imposed by law, Government agency, and/or board, affecting the products bought from Matrox, herefter defined as Matrox Product(s). Customer will pay such tax in addition to the amount of each invoice at the same time invoice becomes due and payable.
2. Customer shall pay invoices within thirty (30) days from the date of invoice. Matrox reserves the right to change these credit terms at any time when, in Matrox's opinion, Customer's financial condition or previous payment record so warrants. Overdue amounts shall accrue interests at the rate of 1 ½ percent per month (eighteen (18%) percent per annum) or at the highest interest rate allowed by law, if less. Customer agrees to pay all costs and attorney fees incurred in collection of all overdue invoices and accounts.
3. Unless otherwise indicated, all prices for Matrox Products to be delivered in Canada are in Canadian dollars. All prices for Matrox Products to be delivered elsewhere are in U.S. dollars.
4. If any price has been determined on the basis of specifications or other data furnished or accepted by the Customer, such price may be modified by Matrox in the event that such specification or data is subsequently modified, corrected or completed by the Customer.
5. Delivery is subject to the Matrox Product availability at the time customer's order is received. Matrox will make every reasonable effort to meet delivery dates, but will not be liable for failure to meet such dates. Matrox shall not be liable for failure to deliver Matrox Products or delays in delivery of Matrox Products occasioned by causes beyond its control, including without limitation strikes, lockouts, fires, embargoes, war or other outbreaks of hostilities, acts of God, inability to obtain shipping space, machinery breakdowns, delays of carriers or suppliers and governmental acts or regulations or for which commercially reasonable efforts have been made.
6. Customer agrees that the title to the Matrox Product is reserved by and remains vested in Matrox until the purchase price is paid in full. If Customer shall fail to pay any part of the purchase price when due and if Customer does not remedy such default within fifteen days (15) following receipt of a written notice by Matrox to do so, Matrox may take possession of said Matrox Product.
7. Notwithstanding the preceding paragraph, the risk of loss passes to Customer upon delivery to carrier at EXWORKS Matrox warehouse.
8. All shipments are EX WORKS Matrox warehouse. All charges for handling, insurance, transportation and storage of any Matrox Product shall be paid by the Customer. However, Matrox may, at the request of the Customer, arrange for and prepay such charges with the understanding that these charges will subsequently be repaid to Matrox by the Customer. These charges are due and payable upon receipt of an invoice relating to same. Any change shall be valid only if confirmed in writing by an authorized Matrox employee.
9. Customer agrees not to cancel or reschedule any order scheduled for delivery within one hundred twenty (120) days. Upon written notice to Matrox, Customer may cancel or reschedule any order scheduled for shipment beyond one hundred twenty (120) days from the date of delivery stated on the order acknowledgement issued by Matrox and this only further to Matrox's receipt of Customer's written cancellation or rescheduling notice.
10. If Customer's order is for custom modified Matrox Product, Customer is presumed to have accepted the specification for custom modifications.
11. Claims regarding incorrect quantities, defective Matrox Products, nonconformance to specifications, or any other discrepancy must be made in writing within 10 days after receipt of the Matrox Product. Failure to do so will relieve Matrox of any responsibility for credit or replacement of Matrox Products.
12. No Matrox Products can be returned without prior written authorization by Matrox. Matrox may modify the specifications of Matrox Products of its own design at any time to Customer and may substitute delivery of such Matrox Products provided such modification does not in Matrox's sole judgment affect form, fit or function.
13. Customer may not (and shall not knowingly permit any End-User or third party ) to use the Matrox Products in any hazardous applications, reverse engineer, decompile, disassemble, reverse assemble, or modify any of Matrox's Products.
14. Customer may not set-off or compensate any amount due to Matrox against monies due to Customer by Matrox, including without being limited to claims for marketing coop, short shipments, non-conformance, etc., without prior written authorization from a duly authorized Matrox representative.
15. All Matrox Products are sold "AS IS" unless indicated otherwise on the package. NEITHER MATROX NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO MATROX PRODUCTS. MATROX SPECIFICALLY DISCLAIMS (AND THE CUSTOMER, BY ACCEPTING THE MATROX PRODUCT(S), SPECIFICALLY ACCEPTS SUCH DISCLAIMER AND WAIVES ALL ITS RIGHTS HEREIN) ALL OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR OR INTENDED PURPOSE OR USE AND THE WARRANTY AGAINST LATENT DEFECTS, WITH RESPECT TO THE HARDWARE AND/OR SOFTWARE. MATROX FURTHER DISCLAIMS ANY WARRANTY THAT MATROX PRODUCTS, IN WHOLE OR IN PART, WILL BE FREE FROM INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS. TO THE EXTENT THAT THIS LIMITED WARRANTY STATEMENT IS INCONSISTENT WITH THE LAW OF THE LOCALITY WHERE THE CUSTOMER PURCHASES THE MATROX PRODUCT, THIS LIMITED WARRANTY STATEMENT SHALL BE DEEMED MODIFIED TO BE CONSISTENT WITH SUCH LOCAL LAW. UNDER SUCH LOCAL LAW, CERTAIN LIMITATION OF THIS LIMITED WARRANTY STATEMENT MAY NOT APPLY TO THE CUSTOMER. TO THE EXTENT ALLOWED BY LOCAL LAW, THE REMEDIES PROVIDED IN THIS LIMITED WARANTY STATEMENT ARE THE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES.
16. LIABILITY: IN NO EVENT SHALL MATROX BE LIABLE TO CUSTOMER OR A THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER BASED UPON CONTRACT, INFRINGEMENT OF INTELLECTUAL PROPERTY, TORT OR ANY OTHER LEGAL THEORY (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS AND OPPORTUNITY). MATROX DISCLAIMS AND SHALL HAVE NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR ANY THIRD PARTY IN RESPECT OF ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY ACTUAL OR PENDING PATENTS, COPYRIGHT OR OTHER INTELLECTUAL PROPERTY RIGHTS. MATROX SHALL HAVE NO LIABILITY ARISING OUT OF ANY SUCH ACTUAL OR ALLEGED INTELLECTUAL PROPERTY INFRINGEMENT.
IN ANY EVENT, MATROX'S TOTAL CUMULATIVE LIABILITY TO CUSTOMER FOR ANY AND ALL CAUSE OF ACTION SHALL BE LIMITED TO THE AGGREGATE OF ALL AMOUNTS PAID BY CUSTOMER TO MATROX, DURING THE TWELVE (12) MONTH PERIOD PRIOR TO OBTAINING A FINAL, NON-APPEALABLE JUDGMENT OR $50,000.00 USD, WHICHEVER IS LOWER.
THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
17. The Customer 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 revealed or furnished by Matrox to the Customer, its employees or agents, used by Matrox in association with its products are the exclusive property of Matrox.
18. The Customer will hold in confidence Matrox's confidential information except that which is now or in the future becomes public knowledge through no fault of the Customer and/or any person under its control and more particularly, the Customer will take all necessary measures to maintain the confidentiality of such information, no less than reasonable measures.
19. Matrox may assign all or any part of its rights and/or obligations hereunder without Customer's consent. Customer shall not delegate any obligations hereunder nor assigned any interest of rights without the written consent of Matrox.
20. This document 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 Customer's purchase orders. This document may be altered, modified or amended only by a written document signed by both parties.
21. Any dispute between Matrox and Customer will be governed by the laws of the Province of Quebec and the laws of Canada applicable therein. The jurisdiction shall be that of the Province of Quebec, District of Montreal.
22. Any inconsistency which may exist between any terms and conditions of this document and that of any other document shall be resolved in favour the terms and conditions of this document.
23. If any term or provision of this document 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 the application of such term or provision to other person or circumstances, shall not be affected thereby. No employee, agent, representative or affiliate of Matrox has authority to bind Matrox to any oral representations or modifications to this document.
MATROX (Includes Matrox Electronic Systems Ltd., Matrox Graphics Inc and Matrox Europe Ltd.) TERMS AND CONDITIONS OF PURCHASE ORDERS, PURCHASE AGREEMENTS AND SUBCONTRACTS
1. AGREEMENT DOCUMENTS: This Purchase Order ("Order") and any attachment, constitute the complete agreement between buyer (hereinafter described as Matrox) and Seller ("Agreement") and supersedes all prior oral and written agreements and understanding between the parties, including but not limited to, quotations, Seller's General Terms and Conditions, Seller acknowledgments and other Purchase Orders. No additional or different provisions proposed by Seller shall apply, unless expressly agreed to in writing by a duly Authorized representative of Matrox.
2. TERMS OF PAYMENT: Terms of payment agreed upon must appear on the face of this Order. Calculations shall be from the date Matrox receives an acceptable invoice.
3. DELIVERY: Time is of the essence of this Order, and if delivery of goods or rendering of services is not completed by the time promised, Matrox reserves the right, without liability and in addition to all its other rights and remedies to (1) terminate this Order by notice effective when received by Seller as to goods not yet shipped or services not yet rendered and to purchase substitute items or services elsewhere and at Matrox' option charge Seller with any loss incurred, or (2) request that Seller, at its expense, ship by expedited means. Acceptance of late deliveries shall not be deemed a waiver of Matrox's right to hold Seller liable for any loss or damage resulting therefrom, nor shall it act as a modification of Seller's obligation to make future shipments in accordance with the Shipment schedules set forth in this Order. If Seller makes a shipment in advance of the scheduled ship date, Matrox may either return such product at Seller's risk and expense for subsequent shipment on the specified date or retain such material and make payment when it would have been due based on the specified shipment date. Seller shall notify Matrox in writing immediately if Seller has knowledge of any impending material shortage, labor dispute, or other event which could result in any change to the agreed shipment or completion plan. In no event shall such notification absolve Seller from any recourse or liabilities or prevent Matrox from executing any or all actions outlined in these terms and conditions.
4. INSPECTION AND ACCEPTANCE: Payment for the goods or services delivered under this Order shall not constitute acceptance of such goods or services. Goods or services shall only be deemed accepted when they actually been counted, inspected, and tested by Matrox. Matrox reserves the right to reject goods which do not conform to the specifications, drawings, samples or other descriptions specified. Goods or Services required by Matrox to be corrected or replaced shall be subject to the same inspection and warranty provisions of the Order. However, failure to inspect or test by Matrox shall not relieve Seller of any responsibilities hereunder. Matrox reserves the right to charge Seller for expenses of inspection for goods which do not conform to this Order. If the Matrox opts for replacement, Seller will issue a "Return Material Authorization" within twenty-four (24) hours of receipt of notice. Seller shall bear all costs involved in shipment of product involved. Inspection and acceptance by Matrox do not relieve Seller of liability for latent defects. Seller agrees to provide failure analysis of rejected material within a commercially reasonable time period after receipt. Seller will also provide a written corrective action report addressing the steps that will be taken to eliminate the cause of the problems.
5. PACKING AND SHIPMENT: (a) All goods shall be packed in accordance with sound commercial practices to obtain the lowest transportation rates, unless otherwise specified in the order. (b) Seller shall provide a complete packing list attached to the outside of each container for shipments hereunder. (c) Goods shipped to Matrox more than one (1) day in advance of the schedule set forth on the Order may be returned at Seller's expense. (d) Any over-shipment of goods (other than those pre-approved in writing) will be treated as gratuitous goods for which Seller will not be paid.
6. END OF LIFE: Seller shall provide Matrox with a written three month notice of its intent to discontinue the sale of goods, and allow the Matrox to make an end of life buy.
7. CHANGES: Unless otherwise stated on the Order, Matrox shall have the right at any time to make changes in drawing, designs, specifications, materials, packaging, time, date, and place of delivery as well as method of transportation. ("Changes"). If any Changes cause an increase or decrease in the cost, time required or performance, an equitable adjustment shall be agreed upon in advance, by written modification. Seller agrees to accept such changes. Seller shall not have the right to make any changes in drawings, designs, specifications, materials, packaging, time, date and place of delivery and method of transportation without Matrox's prior written consent. In any event, Seller shall not make any changes in form fit or function without Matroxs prior written approval. Seller's failure to comply could result in compensatory damages being awarded to Matrox.
8. INSURANCE AND STATUTORY OBLIGATIONS: If Seller's work under this purchase order requires access by Seller to any of Matrox's premises or the premises of any of Matrox's customers or any location where Matrox conducts business, or with material or equipment furnished by Matrox, Seller shall take all necessary precautions to prevent the occurrence of any injury to persons or property during the progress of such work and except to the extent that such injury is due solely and directly to Matrox's act of negligence. Seller shall indemnify Matrox against all loss which may result in any way from any act or negligence of Seller, its employees, servants, agents or subcontractors, and Seller shall maintain such insurance as shall protect Matrox from said risks and from any statutory liabilities whatsoever arising there from and shall provide evidence of such insurance to Matrox.
9. TERMINATION: Matrox may terminate this Order for cause in the event of a default by Seller. In such event, Matrox shall not be liable to Seller for any amounts due under the Order or the Agreement and Seller shall be liable for and shall hold Matrox harmless from, any damages occasioned by Seller's breach or default. Matrox may also terminate this Order for its convenience. In such event upon notice by Matrox, Seller shall immediately stop all work hereunder and observe any instructions from Matrox as to work in process. Seller shall be paid an equitable adjustment for work performed as of the notification date. If it should be determined by a court of law that Matrox has improperly terminated this Order for default, such termination shall be deemed to be for Matrox's convenience.
10. WARRANTIES: Seller warrants that title to all Products delivered or Services rendered, shall be free and clear of all liens, encumbrances, security interests or other claims. Seller also warrants that for minimum period of three (3) years from date of acceptance of material, or completion of Service, that all product or work, shall be free from defects in material, workmanship and design. (except in the case where detailed designs were provided by Matrox.) Products shall conform to applicable specifications, drawings, samples and published descriptions, and shall be of merchantable quality, per the relevant specifications. Seller agrees that in case of epidemic failure, (including but not limited to latent defects) Seller shall indemnify and defend Matrox to the fullest extent allowable by Law. In addition to any other rights Matrox may have, goods or services delivered pursuant to this Order, Matrox, at its option, may return such goods for credit or replacement at the Seller's expense. In the case of a Service rendered, Matrox at its option, may request compensation or correction of defect. In addition to any other expenses, Seller shall bear all costs of rework, inspection and packaging.
11. INTELLECTUAL PROPERTY INFRINGEMENT: Seller shall indemnify, defend and hold Matrox harmless from all claims that the goods and/or Matrox utilization of the goods and/or the equipment and/or processes used to manufacture and/or assemble them, infringe a third party's patent, copyright, trade secret, or any other form of intellectual property ("Intellectual Property"). Seller agrees upon receipt of notification from Matrox to provide and to promptly assume responsibility for defense of any claim, suit or proceeding which may be alleged or brought against Matrox or its agents, customers, or other vendors for alleged infringement, of any third party's Intellectual Property, as well as for any alleged unfair competition resulting from similarity in design, trademark or appearance of goods or services furnished hereunder. Seller further agrees to indemnify Matrox, its agents and customers against any and all expenses, losses, royalties, profits and damages (including court costs and attorney's fees) resulting from any such claim, suit or proceeding, including any compromise and settlement. At its' option, Matrox may be represented by and actively participate though it's own counsel in such claim, suit or proceeding, and the reasonable costs of such representation shall be paid by Seller.
12. INDEMNIFICATION: Seller shall defend, indemnify and hold harmless Matrox against all damages, claims or liabilities and expenses (including attorney's fees) arising out of or resulting in any way from any act or omission of Seller, its agents, employees or subcontractors in connection with this Order. This indemnification shall be in addition to the warranty obligations of Seller.
13. LIABILITY: IN NO EVENT SHALL MATROX BE LIABLE TO SELLER OR A THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER BASED UPON CONTRACT, INFRINGMETN OF INTELLECTUAL PROPERTY, TORT OR ANY OTHER LEGAL THEORY (INCLUDING WITHOUT LIMITATION LOST PROFITS AND OPPORTUNITY).
14. ASSIGNMENTS AND SUBCONTRACTING: No part of this Order may be assigned or subcontracted without prior written approval of Matrox.
15. STATUTORY COMPLIANCE: Seller shall comply with all applicable Federal, Provincial and local laws and ordinances and all lawful orders, rules and regulation there under and the goods, equipment and services furnished by Seller under this Order shall fully comply with such laws and regulations.
16. SET-OFF: Matrox shall be entitled at all times to set-off any amount owing from Seller to Matrox or any of its affiliated companies, against any amount payable by Matrox or any of its affiliated companies, to Seller.
17. WAIVER AND REMEDIES: No waiver of any breach of this Order or the terms and conditions thereof by Matrox shall be held to be a waiver of any other or subsequent breach. All rights and remedies afforded Matrox in this Order shall be taken and construed as cumulative, that is, in addition to every other right and remedy provided under the Order by law.
18. JURISDICTION: The laws of the Province of Quebec shall govern this Order. The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Order.
19. AGREEMENT: Shipment of Goods or commencement of Services signifies agreement and compliance with the Terms and Conditions listed above.