VARITRON’S TERMS AND CONDITIONS OF SALE
These general terms and conditions of sale (the “General Terms“) govern any sales contract entered into between Groupe Varitron Inc. (“Varitron”), and the Customer whose name appears on the Varitron Purchase Order (the “Customer“, and collectively with Varitron, the “Parties“). No Customer purchase order or other written document provided by the Customer may bind or constrain Varitron in any way. Varitron’s offers, sales and its acceptance of all orders are expressly subject to the consent to these General Terms by the Customer. The acceptance of a Varitron offer by the Customer shall be in accordance with these General Terms specifically provided by Varitron. These General Terms apply to all sales of products built by Varitron as of the date included on the order form. Customers who do not agree to these General Terms should not order or accept any delivery of products built by Varitron. By accepting or ordering products built by Varitron, the Customer is deemed to have consented to these General Terms. The beginning of the provision of services or the delivery of products may in no case be interpreted as an acceptance of terms and conditions by the Customer that are different from or in addition to these General Terms. Amendments publicly made from time to time by Varitron to these General Terms will govern any subsequent orders to such amendments. These General Terms, together with the corresponding invoice from Varitron, include all terms, warranties and conditions relevant to each transaction between the Customer and Varitron, and may not be altered, modified or changed in any way unless otherwise agreed to in writing by means of a Master Supplier Agreement, hereinafter referred to as a “MSA”, signed by both parties including an authorized Varitron officer. Any Customer terms and conditions that are different from, or in addition to Varitron’s terms and conditions are not recognized by Varitron and are of no effect unless expressly agreed by Varitron in writing.
1. MODIFICATION AND CANCELLATION
The Customer may notify Varitron in order to cancel, postpone or change a product or manufacturing process of any product for which a delivery has been scheduled. Varitron shall make commercially reasonable efforts to comply with any order modification request made by the Customer. Varitron may invoice the Customer for the associated costs described below:
- Schedule Change: Varitron shall allow the Customer to delay orders for a period of up to thirty (30) days from Varitron’s target delivery date. Withdrawal requests of more than thirty (30) days may, at Varitron’s discretion, result in Varitron invoicing the Customer for any materials purchased as part of the order, or cancelling the order, as described in Section 1 (iii). The Customer may request shorter delivery times than those promised by Varitron. In such cases, Varitron will do everything in its power to meet the Customer’s needs according to current commercial conditions. Stowage requests may require a new Customer quote to reflect acceleration costs.
- Changes to Products and Processes: Upon receipt of a purchase order, any changes requested by the Customer to the product design or manufacturing process (including CDA) shall be reviewed by Varitron to determine their possible impacts. If applicable, before making such changes, the delivery costs or impact resulting from these change requests will be communicated to the Customer in order to obtain written consent. Any product or material that can no longer be used to manufacture the product shall be the responsibility of the Customer as detailed in Section 1 (iii).
- Cancellation, Modification and Reduction of Orders: In the event of an order cancellation, modification or reduction, the Customer shall be responsible for all product assemblies that are completed or in production. The cost of products in production will be determined based on the production status. The Customer is responsible for any NRE and tooling costs or any other one-time charges related to the production. The Customer is also responsible for all raw materials, including excess and obsolete materials, purchased by Varitron related to any order. The Customer will be charged a fifteen percent (15%) handling fee based on the value of the materials.
If Varitron determines, at any time and at its sole discretion, that the Customer’s financial situation or solvency is inadequate or unsatisfactory, it reserves the right, in addition to its other remedies under these General Terms, to take one or several of the following measures:
- With five (5) days’ written notice, amend the payment terms described in Section 4 for future and pending orders, including, but not limited to, the possibility of requiring the Customer to make cash payments in advance or on delivery;
- Reject any order from the Customer;
- Cancel any purchase order already approved;
- Delay or withold delivery of any Customer order;
- Stop delivery of any order in transit and ensure it is returned to Varitron;
- With five (5) days’ written notice, terminate these General Terms; or
- Accelerate the due date of all amounts payable by the Customer to Varitron.
No action or lack of action taken by Varitron under this Section shall constitute a waiver by Varitron of its rights and remedies under these General Terms.
New Customer: New Customers must fill out a credit application and obtain credit approval before any requisition or order is processed and produced.
Validity of Quotations: All quotations are valid for a period of thirty (30) days from the date of issue to the Customer. When a purchase order is issued following a specific quotation, a signed copy of the quotation must be attached to the purchase order. Varitron shall have the right not to process a purchase order if the customer refuses to attach a copy of the signed quotation to the order form. Prices and lead times are subject to change if the quantity and/or specifications differ from original quotations.
Component Delivery Times: Varitron does not guarantee component delivery times. Additional costs may be incurred if component delivery times are longer than the ones initially proposed during the last quotation review and the Customer wishes to keep the initial deadline. These fees shall be charged to the Customer in full. Delivery times will be confirmed upon receipt of the order form only.
3. TAX AND CURRENCY
Tax and Currency: Prices are in United States dollars ($US, USD) and do not include taxes (including but not limited to VAT, excise taxes and duties or federal or local taxes) or other duties required by the government (together the “Taxes“). All such Taxes shall be borne exclusively by the Customer, and Varitron may incorporate the Taxes into the Customer’s invoice for products built by Varitron or issue a separate invoice. Payment of the Taxes by Varitron shall not relieve the Customer of the responsibility to pay the fees, and any amount paid on behalf of the Customer will be due to Varitron by the Customer and shall be refunded on request. Varitron reserves the right to correct clerical or typographical errors, including errors in price and terms and conditions.
4. TERMS OF PAYMENT
The sale price payable to Varitron by the Customer shall be payable by wire transfer.
Except as otherwise stipulated in these General Terms, the terms of payment are net thirty (30) days from the date of the invoice as indicated on Varitron invoices, or in the Agreement between the Parties (MSA). Varitron shall add a monthly service fee of two percent (2%) (without exceeding the maximum statutory rate) for any outstanding account. The Customer shall be liable for all costs, including reasonable legal fees, incurred by Varitron in the attempt to recover such amounts due.
The Customer undertakes to provide Varitron with any relevant financial information requested by Varitron, including, but not limited to, financial statements or confirmation of availability of Customer’s funds. The Customer agrees that Varitron is authorized to conduct credit checks with credit agencies or any other organization that assesses the Customer’s credit.
The terms of payment may be subject to review following the customer’s credit assessment. From time to time, Varitron may, as a condition of acceptance of a product delivery or order, require payment guarantees that it deems appropriate. Such guarantees could be made by means of an irrevocable letter of credit. All amounts or payments due shall be paid to Varitron without any deduction, withholding, or counterclaim.
The Customer is obligated to inform Varitron without delay and in writing of any event that has or could have adverse effects on the Customer’s business activities or financial position, including:
- A change in the management of the Customer;
- Any significant sale, lease or exchange of the Customer’s assets; or
- Any change of control of the Customer.
If the Customer is required by law to deduct or withhold amounts otherwise payable to Varitron, the Customer’s payments shall be increased to match the amount it owes to Varitron without deductions.
All products built by Varitron delivered hereunder remain the property of Varitron until the purchase price has been paid in full, including, but not limited to, the price and delivery charges and Taxes due to Varitron. Furthermore, the Customer agrees to sign any documents that Varitron may require to validate, protect or maintain its security interests.
The Customer acknowledges and accepts that it does not have the right to withhold, compensate, recover or debit any amount due to Varitron by the Customer.
In the event that the Customer disputes all or part of an invoice, the Customer shall be obligated to pay the undisputed part of the invoice and to send to Varitron in writing the detailed reasons for disputing such invoice, within thirty (30) days of receipt of the invoice, failing which the invoice will be deemed to be accepted.
Shipment and delivery dates indicated on Varitron purchase orders are to be considered estimates only, and are not guaranteed. Varitron cannot be held liable for any costs, expenses or damages incurred by the Customer or a third party caused by shipping or delivery after the scheduled date. Any change made to an order will automatically result in a change in the shipping and delivery dates.
Incoterms: Deliveries are made in accordance with EXW, Incoterms 2010 (ex works). Notwithstanding the foregoing, Varitron may, at any time and at its sole discretion, ship its products under different Incoterms. In any case, the order may be divided into several parcels. The sale proceeds are recognized once the delivery has been made to the carrier. The Customer must inspect the goods upon delivery and report any error or defect to Varitron within ten (10) days of delivery, failing which Varitron will conclude that the delivered products matched the products listed in the purchase order.
6. CERTIFICATIONS: HANDLING AND EXECUTION OF WORK
Unless otherwise specified in a Contract between the Parties (MSA), Varitron certifies that handling is certified ANSI/ESD-S-20.20, moisture sensitive product and IPX/JEDEC J-STD-033. Varitron’s work is controlled as per IPC-A-610, class 2.
7. EXCESS AND/OR OBSOLETE INVENTORY
Excess Inventory: Varitron undertakes to maintain in stock, at its own expense, any excess inventory for a maximum period of ninety (90) days from the date of the last inventory movement. If this inventory has not been the subject of a movement associated with a Customer order during this period, Varitron reserves the right to invoice the Customer within thirty (30) days following this period.
The Customer may chose to bring back its excess inventory to its warehouses or choose to leave it at Varitron’s premises. In the event that the Customer decides not to take the excess inventory back to their premises, Varitron agrees to keep the inventory for an additional ninety (90) days at a holding cost to be determined at that time based on the dimensions of the inventory. The additional ninety (90) days will be calculated as of the day on which the invoice was sent to the Customer. The payment terms for the excess inventory are net thirty (30) days. If the Customer refuses to pay the invoice, Varitron preserves the right to send the inventory to the Customer at any time and at the Customer’s expense.
Obsolete: Varitron reserves the right to invoice the Customer for any obsolete material or inventory of material reserved specifically for it in connection with a quotation or contract and/or a contractual agreement (MSA). The invoice shall be issued within thirty (30) days following change of status to obsolete. The Customer is responsible for informing Varitron of any obsolete materials related to quotations or contractual agreements.
Once the obsolescence has been determined, the Customer may decide whether they want the material to be returned to their warehouses at their expense or authorize Varitron to dispose thereof. Any disposal fee shall be charged to the Customer.
8. COMPLIANCE WITH RELEVANT LAWS, INCLUDING IMPORT/EXPORT RESTRICTIONS
Customer represents and warrants that products built by Varitron will only be used in Canada or the United States. If products built by Varitron will be used in a jurisdiction other than Canada or the United States, the Customer agrees to sign, upon Varitron’s request, an End-Use Certificate stating that products built by Varitron will not be used, resold or exported in contravention of Canadian and American rules and sanctions. The Customer represents and warrants that products built by Varitron will be used for civilian purposes only and will not be used, resold or exported in contravention of Canadian and United States rules and sanctions.
9. LIMITED WARRANTY
Varitron guarantees each of its products to the Customer against manufacturing defects that could prevent the products from functioning in accordance with the functional specifications as defined at time of shipment, for a period of ninety (90) days following the shipment date.
This limited warranty is invalid if the product is:
- Misused or improperly installed;
- Repaired or modified;
- Damaged due to a fortuitous event;
- Damaged during shipping or handling.
This limited warranty grants Varitron the power to repair or replace the product or refund the purchase price. VARITRON’S OBLIGATION UNDER THIS LIMITED WARRANTY DOES NOT INCLUDE ANY OTHER COSTS OR EXPENSES, INCLUDING, BUT NOT LIMITED TO, ANY COSTS OR EXPENSES RELATED TO THE WITHDRAWAL OR REINSTALLATION, FOR WHATEVER REASON, OR ANY OTHER COSTS, IMPOSED OR INCURRED (FOR EXAMPLE, AND WITHOUT LIMITATION, LABOUR COSTS OR EXPENSES, ADMINISTRATIVE EXPENSES, OR FOR THE PURPOSE OF COMPLYING WITH THE REQUIREMENTS OF THE LAW OR GOVERNMENT AGENCIES). THE ABOVE WARRANTY IS THE CUSTOMER’S EXCLUSIVE REMEDY FOR ANY ALLEGED OR ACTUAL DEFECTS IN ANY PRODUCT, AND ALL OTHER WARRANTIES, INCLUDING ANY LEGAL OR STATUTORY WARRANTIES, ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. NO ORAL OR WRITTEN DECLARATION BY VARITRON OR ITS EMPLOYEES CONSTITUTES OR CREATES ANY WARRANTIES THAT MIGHT EXTEND THE SCOPE OF THE WARRANTY HEREUNDER. TO THE EXTENT PERMITTED BY LAW, VARITRON SHALL UNDER NO CIRCUMSTANCES BE LIABLE TO ANY CLIENT FOR (I) ANY INDIRECT, SPECIAL, OR EXEMPLARY DAMAGES (EVEN IF VARITRON HAS BEEN NOTIFIED OF THE POSSIBLE OCCURRENCE OF THIS TYPE OF DAMAGE) ARISING OUT OF THE FUNCTIONING OR MALFUNCTIONING OF THE PRODUCT OR OTHER TERMS OF THE CONTRACT RELATING THERETO (INCLUDING DAMAGES CAUSED BY THIRD PARTIES), SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS, OR LOSSES RESULTING FROM THE INTERRUPTION OF ACTIVITIES, OR (II) ANY AMOUNT EXCEEDING THE PURCHASE PRICE OF THIS PRODUCT. THE CUSTOMER ACKNOWLEDGES THAT THIS LIMITATION OF LIABILITY IS A MAJOR FACTOR IN DETERMINING THE PRICE OF THE PRODUCT AND THAT ACCEPTING THIS LIMITATION OF LIABILITY CONSTITUTES A FAIR ALLOCATION OF RISK.
To benefit from this limited warranty, the Customer must return the alleged defective product in accordance with the “return” policy set forth below, within the period specified in the warranty.
Customer may not benefit from this limited warranty if it notifies Varitron that certain specifications, components or methods must be used by Varitron when manufacturing products built by Varitron.
Customers wishing to return a product must first contact Varitron directly to obtain a Return Merchandise Authorization (RMA) number.
If the reason for the return complies with the provisions of the product warranty, Varitron will send a RMA form that must be completed and returned with the product. If the reason for the return does not comply with the provisions of the product warranty, Varitron will decide whether to send a RMA form; in this case, Varitron will have no obligation to accept a return if:
- The warranty has expired beyond thirty (30) days from the invoice date;
- The Product(s) is(are) unfit for sale (including, but not limited to, the fact that it has (they have) been used in a manner that is not recommended or subject to conditions that void the warranty).
Any product returned to Varitron without a valid RMA number will be refused and the Customer will be liable for all return shipping charges, including applicable Taxes.
If issued, the RMA number is valid for a period of thirty (30) days. Products not returned to Varitron within this time frame will not be accepted for any reason. Once a RMA number has been assigned to a product, the Customer is liable for all shipping costs, including applicable tax costs.
Regardless of the reason for issuing a RMA number, the Customer will be liable for any damages or material losses that may occur during shipping.
11. RETURN OF ALLEGEDLY DEFECTIVE PRODUCTS
Compliant Product: If, after examining the product, Varitron concludes that it complies with the terms of the warranty, Varitron shall reimburse the Customer for the return shipping costs and applicable Taxes, up to the normal UPS rate for non-expedited ground shipping delivery. The calculation for return freight will be limited to transit from the Customer’s address to the manufacturing plant. In the event that Varitron prefers to repair or replace a product that does not meet the warranty conditions, the delivery and shipping process will be in accordance with the paragraph above entitled “Delivery/Shipping.”
Non-Compliant Product: If, after examining the product, Varitron concludes that it does not comply with the terms of the warranty, Varitron will return the product to the Customer at the latter’s expense, as stipulated in the paragraph above, entitled “Delivery/Shipping,” provided the Customer has prepaid the shipping costs and the inherent Taxes, and pays Varitron the inherent costs associated with the handling and verification of product compliance. If the Customer does not pay these costs and Taxes within thirty (30) days of the date of the invoice, Varitron will not recognize any obligation to return the products to the Customer, and shall deem the products to be its own property. If the product is delivered to Varitron and parts or components are missing or damaged, additional fees will be charged to the Customer to replace them.
12. INTELLECTUAL PROPERTY
Nothing herein shall grant the Customer or the end users of products built by Varitron any rights, titles or interests to the intellectual property rights (including, but not limited to, patents, trademarks, copyrights, trade names or trade secrets of Varitron, its licensors or suppliers) incorporated in or associated with the related products, services or software that may already be installed or included with the products or services specified in the Customer’s order.
Any action taken by Varitron to fulfill the Customer’s order, whether it constitutes original work or an improvement to a Customer’s existing technology or intellectual property, is and shall remain the exclusive property of Varitron. Any intellectual property or trade secret of Varitron, its licensors or suppliers that is included or installed in a product is licensed to the Customer by Varitron and is not sold.
The licence is non-exclusive, is limited to the use with the product and is subject to all other terms and conditions of the Customer’s order. The Customer agrees not to sell, transfer, sublicense, reverse engineer, or disassemble or redistribute the intellectual property or trade secret of Varitron, its licensors or suppliers that is incorporated into the product specified in the Customer’s order.
The Customer undertakes not to allow a third party to copy the intellectual property or otherwise make it available to third parties. No other use is permitted and Varitron (or, as applicable, its licensors and suppliers) retains any title and property to and in any intellectual property or trade secret incorporated in the products delivered under the terms of the Customer’s order.
The Customer undertakes, at all times, to defend, indemnify and save harmless Varitron, its officers, directors, employees, shareholders, managers, lawyers, agents, affiliates, successors and assigns from all liability in respect to claims for damages, injuries (including fatalities), losses, costs, including legal fees and reasonable expenses arising from any claims, lawsuits or demands by a third party or from another party arising from:
- Any breach of these General Terms by the Customer or the end users;
- Any improper or negligent installation or unauthorized repair.
The Customer may not settle, accept a compromise or consent to the registration of any judgment in respect to an ongoing or potential claim without the consent of Varitron, unless such settlement, compromise or consent includes an explicit and unconditional waiver of all other claims for damages, losses, expenses, including legal costs and costs arising from any lawsuit against Varitron.
14. APPLICABLE LAW
These General Terms govern each sales contract involving Varitron; the applicable law to sales made pursuant to these General Terms shall be the laws of the State of Delaware, and any proceedings regarding these General Terms and/or the relationship between the Parties shall be brought exclusively before the competent courts in the judicial district of Wilmington. The United Nations Convention on Contracts for the International Sales of Goods is hereby waived and excluded and, therefore, does not apply.
If any provision of these General Terms is deemed to be void or unenforceable, in whole or in part, by a court of competent jurisdiction, then, to the fullest extent permitted by applicable law, (a) all other provisions of these General Terms shall remain entirely valid and (b) Varitron and the Customer agree to join their efforts to negotiate a replacement provision that will be legally equivalent, to the extent possible, to the original General Terms provision declared void or unforceable.
Any waiver by Varitron or the Customer of any default or breach of any provision of these General Terms by either Party shall not be construed as an exemption from any subsequent breach of the same provision of these General Terms, and may not delay or waive the authority of any Party to exercise or assert any rights or privileges that they hold or may hold hereunder, and shall not be construed as a waiver of this right or remedy or any other right or remedy by any of these Parties. Waivers must be made in writing and signed.
Nothing herein shall be construed to have the purpose of creating any partnership, joint venture or agency relationship between the Parties.
All private, confidential or proprietary information of Varitron, including but not limited to order prices, is strictly confidential and may not be released or reproduced without the prior written consent of Varitron.
These General Terms are for the sole benefit of the Parties and their respective successors and permitted assigns, and no provision of the General Terms is intended to confer onto any other person or entity a right, benefit or remedy of any nature whatsoever.