Terms & Conditions
1 General Provisions
1.1 Scope and Priority
- The following Terms and Conditions shall apply to all purchase orders or written order request from the buyer (BUYER) and accepted by PixeLINK®, all repair and advisory work, and any products or services provided by PixeLINK®.
- No conditions of purchase or other general terms and conditions of Customer shall apply unless PixeLINK® confirms them expressly in writing.
1.2 Amendment of the Contract
- PixeLINK®’s offers shall not be binding. No order will be binding upon PixeLINK® unless and until confirmed by PixeLINK® in writing.
- Any amendments to a contract must be in writing. No employee or agent of PixeLINK® shall be entitled to enter into any verbal collateral agreements or to make any verbal promises or agreements regarding the amendment of a contract. Such verbal collateral agreements or verbal promises or agreements shall have no binding effect on PixeLINK® unless and until PixeLINK’s order confirmation has been amended accordingly in writing.
2.1 Scope of Services
- Customer will acquire from PixeLINK® all components specified in the order confirmation and, if covered by the scope of delivery, the related operating software and documentation.
- PixeLINK® shall, whenever possible, deliver to Customer all of the items listed in the Customer’s purchase order. Customer agrees to accept partial delivery.
2.2 Shipment and Return Policy
- Unless otherwise agreed in writing, deliveries will be made “ex works” (place of performance). Customer shall have all risk after delivery of the goods. Customer shall be responsible for obtaining transportation insurance at his own discretion.
- PixeLINK® shall make all reasonable efforts to effect delivery in time and by means and routes previously agreed upon. Delay in delivery does not entitle Customer to cancel any given purchase order or to claim damages.
- PixeLINK® shall provide proper packaging for the goods at its own discretion. Sea freight shall be shipped in standard export packaging. Special packaging shall be available upon Customer’s request and at Customer’s expense.
- Customer shall take delivery within the period specified in the offer or in the order confirmation, as the case may be. Should delivery be delayed either at the request of Customer or because of any other reason not caused by PixeLINK®, all risk for the goods shall pass to Customer with effect on the originally agreed point of the time of delivery.
- There shall be no return of goods but in exceptional cases and subject to a written return material authorization (“RMA”). These goods shall be returned in the original packaging and accompanied by a copy of the invoice.
2.3 Prices and Payment
- All prices quoted by PixeLINK® are net prices. Prices shall be “ex work”, exclusive of ancillary costs such as freight, customs duties and packaging, plus VAT as applicable on the date of delivery and any other taxes, duties, fees and similar charges. Any prices confirmed shall only apply if delivery is taken for the quantity so confirmed.
- Unless otherwise agreed, any claims under invoices of PixeLINK® shall be payable in their net amounts 30 days upon receipt.
- PixeLINK®, irrespective of any terms and conditions of Customer to the contrary, may set off payments first against earlier debts of Customer. If costs and interest have arisen, PixeLINK® may set off payments first against costs, then against interest, and finally against the main performance.
- In case of default, PixeLINK® will charge default interest at a rate of 0.065% per day or 2.0% per month, but not more than 26.82% p.a. PixeLINK® reserves the right to assert further claims, in particular any excess damages caused by delay.
- PixeLINK® may accelerate maturity of the remaining debt as a whole (i) if Customer fails to comply with contractual payment commitments, (ii) if Customer suspends payments, or (iii) if PixeLINK® becomes aware of any other circumstances that call the Customer’s credit standing into question.
- No set-off against claims of PixeLINK® shall be allowed unless a counter-claim is uncontested, has been established by a declaratory judgment or recognized by PixeLINK®. No right of retention may be exercised unless the counter-claim is uncontested or has been established by declaratory judgment.
3 Reservation of Title
- Title in the goods remains vested in PixeLINK® until such time as the goods have been fully paid for, as well as if the goods are processed or combined with other goods.
- Customer hereby expressly authorizes PixeLINK®, at Customer’s expense, to do all necessary recordings in order to retain title. Customer shall corporate and provide all the documents that may be necessary for PixeLINK® to create, maintain and protect its title to the products.
- In particular, Customer shall, at his own expense and at PixeLINK’s discretion, keep the goods in proper conditions and insure them against theft, breaking, fire, water and other risks of loss during the period title in the goods is vested in PixeLINK®. Customer shall take all necessary steps to ensure that PixeLINK’s title in the goods is neither impaired nor removed.
4 Liability and Warranty
PixeLINK® shall provide a warranty for a period of one (1) year from date of delivery of sold PixeLINK® products excluding any further claims as follows:
Defects of Quality
- Distributors and other intermediaries shall not be allowed to provide a warranty, which goes beyond the warranty contained in this Section 4, neither in their own name nor on behalf of PixeLINK®. Only PixeLINK® shall be entitled to accept claims arising from this warranty and provide the corresponding services.
- Customer shall examine all deliveries immediately after receipt. Any defects shall be notified to PixeLINK® in writing within 10 days. Delivery shall be deemed accepted if Customer fails to make such notification. Defects that were not detectable by examination according to the standards in usage for similar products shall be notified to PixeLINK® within 5 days after detection failing which the delivery shall be deemed accepted with regards to these defects as well.
- All parts, which are discovered to be defective as a consequence of circumstances existing prior to the transfer of risk, shall be, at the choice of PixeLINK®, repaired or replaced with defect-free parts. Replaced parts become the property of PixeLINK®.
- After consultation with PixeLINK®, the Customer shall provide the necessary time and opportunity for the undertaking of the improvements or the replacement delivery deemed to be necessary by PixeLINK®; otherwise, PixeLINK® shall be exempted from consequences resulting from the defect.
- From the direct costs resulting from the remedy or replacement delivery, PixeLINK® shall bear the costs of the replacement parts and their shipping insofar as the objection is deemed to be justified. The risk of loss of the delivery shall remain with the Customer.
- No warranty shall be given and no liability accepted in the following cases in particular: Interference by a third party, unsuitable or improper use, misuse, defective assembly or putting into operation by the Customer or third parties, normal wear and tear, defective or negligent treatment, improper servicing, unsuitable production equipment and facilities, chemical, electro-chemical or electrical influences, insofar as such are not caused by PixeLINK®, mechanical or electrical modification, in particular by means of soldering.
- Should Customer or a third party improperly undertake remedies, PixeLINK® shall not be liable for any consequences resulting therefrom. The same shall apply for changes to the product without the prior approval of PixeLINK®.
- All claims arising from the warranty for defective products shall become statute-barred within 2 years after delivery to Customer, even if the defect is discovered later. Existing claims of Customer caused by defective products remain valid if the defect was notified in accordance with Section 4.1 within 1 year after delivery. PixeLINK® will repair or replace the defective product(s) in its sole discretion.
- The warranty shall in any case not exceed the original value of the product.
Legal Imperfection of Title
10. Should the use of the product cause infringement of any third party’s intellectual property rights in Customer’s country of residence, PixeLINK® shall, at its own costs, obtain the right to continue the use of the product or modify the product in a manner reasonable for the Customer so that the infringement of the protected rights no longer exists. Should this not be possible at commercially reasonable terms or within a reasonable time period, the Customer shall be entitled to cancel the contract. PixeLINK® shall also be entitled to cancel the contract pursuant to the stated prerequisites. In addition, PixeLINK® shall indemnify the Customer for claims of the respective owner of the protected rights which are non-disputed or determined with final res judicata effect.
11. PixeLINK® obligations named in Section 4.10 shall be conclusive for the case of infringement of intellectual property rights. These shall exist only if:• The Customer notifies PixeLINK® without undue delay of the claimed infringements of intellectual property rights;
• The Customer notifies PixeLINK® without undue delay of the claimed infringements of intellectual property rights;
• The Customer supports PixeLINK® to a reasonable extent with the defense against the claims or enables PixeLINK® to undertake the modification measures pursuant to Section 4.10;
• PixeLINK® is reserved the right to all defensive measures including extra-judicial settlements;
• The legal imperfection of title is not caused by an instruction of the Customer;
• The infringement of the right was not caused by the fact that the Customer arbitrarily changed the product or used it in way not in conformity with the contract.
Damages caused by Delay and Consequential Damage
12. As for the rest, all warranty or liability of PixeLINK® for damage, including damage caused by delay or consequential damage, shall be excluded as permitted by law. In particular, all warranty and liability of PixeLINK® for damage that it does not have to represent shall be excluded.
5 Use of Software and Documentation
- Insofar as software and/or documentation is included in the scope of a delivery, the Customer shall be granted a non-exclusive right to its use. It shall be provided only for use on the product it was meant for. Use of the software on more than one system shall be prohibited.
- The Customer may only copy, modify or translate software or documentation or transfer software from object code into source code to the extent allowed by law. The Customer agrees not to remove manufacturer details, in particular, copyright notations or to change them without PixeLINK’s prior approval.
- All other rights on the software and documentation including copies thereof shall remain with PixeLINK® respectively the software-provider. The granting of sublicenses by Customer is prohibited.
6 Repair Work
6.1 Scope of Service
Beyond the warranty period, PixeLINK® will provide a repair cost estimate. The Customer will approve any repair cost estimate prior to PixeLINK® performing any repair services.
7 Final Provisions
In the event that any provision hereof should be ineffective, this shall not affect the validity of the remainder hereof. An ineffective provision shall be deemed replaced by a provision capable of putting into effect the economic aim of such ineffective provision.
7.2 Applicable Law and Venue
All legal relations with Customer shall be governed exclusively by Canadian law. All disputes arising out of or in connection with contracts hereunder shall be exclusively resolved by the courts at PixeLINK®’s domicile (Ottawa, ON Canada).