1. Definitions

1.1 “Buyer” means the person and organization who buys Goods and Services from the Rugged Monitoring, the seller;

 

1.2 “Seller” means Rugged Monitoring Inc, 1415 Frank-Carrel St, Suite 230 Quebec City, Quebec, Canada- G1N 4N7.

 

1.3 “Conditions” means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing between the buyer and Rugged Monitoring;

 

1.4 “Delivery date” means the date specified by Rugged Monitoring when the Goods and Services are to be delivered, as per the shipping incoterm-2010;

 

1.5 “Goods” means the products (sensors, monitors, software and accessories) to be supplied to the Buyer by Rugged Monitoring;

 

1.6 “Intellectual Property Rights” means all patents, registered and unregistered designs, copyright, trademarks, know-how and all other forms of intellectual property wherever in the world enforceable;

 

1.7 “Price” means the price set out in the price-list of the Goods and Services maintained by Rugged Monitoring as amended from time to time or such other written pricing agreement with buyer; charges for standard packaging (air transport) are included in the “Price”. Any other charges like non-standard packaging, carriage, insurance, custom clearance or interest etc. is quoted separately (if required by buyer) and shall be part of “price”.

 

2. General

 

2.1 These conditions shall apply to all contracts for the sale of Goods and services by the Seller to the Buyer. If a separate contract has been signed between the Seller and the Buyer, such as Purchase Order or Order Confirmation with Terms and Conditions, or similar document from the Buyer or Seller, then those terms take precedence. The terms and conditions that are not conflicting with the agreed contract shall remain lawful and enforceable.

 

2.2 In the absence of separate written agreement between the Buyer and the Seller, the terms and conditions of this document shall be enforceable for any purchase order from the Buyer and for the delivery of Goods and Services by the Seller.

 

2.3 Acceptance of the Order Acknowledgement or delivery of the Goods and Services shall be deemed conclusive evidence of the Buyer’s acceptance of these Conditions.

 

2.4 Any advice, recommendation or representation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods and Services or otherwise which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and, accordingly, the Seller shall not be liable for any such advice, recommendation or representation which is not confirmed.

 

3. Price and Payment

 

3.1 RUGGED MONITORING supports payment of the price by bank wire transfer or through credit card. Payment terms are agreed separately with the Buyers. The default payment term is immediate payment after receiving the invoice from the Seller.

 

3.2 The Seller shall be entitled to charge interest and administrative charges on overdue invoices from the date when payment becomes due. The interest and administrative changes shall be accrued day to day until the date of payment at a rate of 1.5% per month (18% per year). 3.3 The Seller reserves the right to grant, refuse restrict, cancel or alter credit terms at its sole discretion at any time.

 

3.4 If payment of the Price or any part thereof is not made by the due date, the Seller shall be entitled to:

 

3.4.1 collect advance payment, full or partial value of the price, for the delivery of Goods and Services not previously delivered;

 

3.4.2 refuse to make delivery of any undelivered Goods whether ordered under the contract or not and without incurring any liability whatever to the Buyer for non-delivery or any delay in delivery;

 

3.4.3 appropriate any payment made by the Buyer to such of the Goods (or Goods supplied under any other contract) as the Seller may think fit;

 

3.4.4 terminate the contract.

 

4. Description

 

Any description given or applied to the Goods and Services through marketing material, sales presentation, discussions and emails, is provided by way of identification only and the use of such description shall not constitute a sale by description. For the avoidance of doubt, the Buyer hereby affirms that it does not in any way rely on any description when entering into the contract.

 

5. Sample

 

Where a sample of the Goods is shown to and inspected by the Buyer, the parties hereto accept that such a sample is so shown and inspected for the sole purpose of enabling the Buyer to judge for itself the quality of the Goods and Services, and not so far as to constitute a sale by sample.

 

6. Delivery

 

6.1 Unless otherwise agreed in writing, the default shipping terms shall always be ExW (Ex Works) Quebec City, Quebec, Canada as per the incoterm-2010. It shall be the Buyers responsibility to pick the Goods from RUGGED MONITORING factory in 1415 Frank-Carrel St, Suite 230 Quebec City, Quebec, Canada- G 1N 4N7 and make all arrangement with its carrier for the shipment, insurance, custom clearance of goods.

 

6.2 The date of delivery specified by the Seller is an estimate only. Time for delivery shall not be of the essence of the contract and while every reasonable effort will be made to comply with such dates compliance is not guaranteed and the Buyer shall have no right to damages or to cancel the order for failure for any cause to meet any delivery date stated.

 

6.3 The date of delivery specified by the Seller is an estimate only. Time for delivery shall not be of the essence of the contract and while every reasonable effort will be made to comply with such dates compliance is not guaranteed and the Buyer shall have no right to damages or to cancel the order for failure for any cause to meet any delivery date stated.

 6.4 If the Buyer fails to accept delivery of Goods and Services on the delivery date or within 3 days of notification that they are ready for dispatch whether prior to or after the delivery date the Seller reserves the right to invoice the Goods and Services to the Buyer and charge them. In addition, the Buyer shall then pay reasonable storage charges or demurrage as appropriate in the circumstances until the Goods are either dispatched to the Buyer or disposed of elsewhere.

 6.5 The Seller shall be entitled to deliver the Goods and Services by instalments (partial shipment) and where the Goods and Services are so delivered, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat any other related contract as repudiated. 

6.6 Where the Buyer requires delivery of the Goods and Services by instalments (partial shipment), rescheduling requires the Seller’s written agreement and will not be possible unless at least 2 week’s written notice is provided and so agreed. Each delivery shall constitute a separate contract and failure by the Buyer to pay the Price in respect of any instalment shall entitle the Seller to treat any other related contract as repudiated in addition to any other rights of the Seller pursuant to these Conditions. 

6.7 Notwithstanding that the Seller may have delayed or failed to deliver the Goods and Services (or any of them) promptly the Buyer shall be bound to accept delivery and to pay for the Goods and Services in full provided that delivery shall be tendered at any time within one (1) month of the delivery date.

 

7. Acceptance

 

7.1 The Seller is a distributor of Goods and Services and the Buyer is exclusively responsible for detailing the specification (requirements) of the Goods and Services, for ascertaining the use to which they will be put and for determining their ability to function for that purpose.

 

7.2 The Buyer is required to test Goods upon delivery and shall be deemed to have accepted the Goods 14 days after delivery to the Buyer. Accordingly, no claim for defect, damage or quality will be entertained (without prejudice to the Seller’s other rights pursuant to these Conditions) unless written notice together with all supporting evidence is received by the Seller within 14 days of delivery. After acceptance the Buyer shall not be entitled to reject Goods which are not in accordance with the contract.

 

7.3 The Buyer shall not remove or otherwise interfere with the marks or numbers on the Goods. 

7.4 The Buyer shall accept delivery of the Goods in the same quantity as agreed at the purchase order and order acknowledgement. And discrepancy in the quantity of goods shall be communicated to the Sellers immediately. 

8. Risk and Title

8.1 Risk of damage or loss of the Goods and transfer of title shall be as per the agreed incoterm-2010 conditions between the Buyer and the Seller. The default shipping terms are ExW (Ex Works), Quebec City, which means the title of the goods I transferred to the Buyer as soon as the Goods leave the RUGGED MONITORING factory and any risk of damage and loss associated with shipment shall be passed to the Buyer. Shipping terms other than ExW shall be agreed in writing by the Seller to the Buyer. 

8.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these conditions, the property in the Goods shall not pass to the Buyer until the Seller has cleared funds payment in full of the Price of the Goods and of all other Goods agreed to be sold by the Seller to the Buyer for which payment is then due.

 8.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property. 

8.4 Until payment of the Price the Buyer shall be entitled to resell or use the Goods in the course of its business but shall account to the Seller for the proceeds of sale or otherwise of the Goods, whether tangible or intangible including insurance proceeds, and shall keep all such proceeds separate from any monies or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.

 8.5 Until such time as the property in the Goods passes to the Buyer (and provided that the Goods are still in existence and have not been resold) the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and if the Buyer fails to do so forthwith to enter upon any premises of the Buyer or of any third party where the Goods are stored and repossess the Goods. 

8.6 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable. 

8.7 The Seller shall be entitled to recover the Price notwithstanding that property in any of the Goods has not passed from the Seller.

 9. Insolvency of Buyer 

9.1 If the Buyer fails to make payment for the Goods in accordance with the contract of sale or commits any other breach of this contract of sale or if any distress or execution shall be levied upon any of the Buyer’s property or the Goods or if the Buyer offers to make any arrangement with its creditors or commits an act of bankruptcy or if any petition in bankruptcy is presented against the Buyer or the Buyer is unable to pay its debts as they fall due or if being a limited company any resolution or petition to wind up the Buyer (other than for the purpose of amalgamation or reconstruction without insolvency) shall be passed or presented of if a receiver, administrator administrative receiver or manager shall be appointed over the whole or any part of the Buyer’s business or assets or if the Buyer shall suffer any analogous proceedings under foreign law or if any such matter as provided for in this clause is reasonably apprehended by the Seller all sums outstanding in respect of the Goods shall become payable immediately. 9.2 The Seller may in the circumstances set out in clause 

9.1 above also in its absolute discretion, and without prejudice to any other rights which it may have, exercise any of its rights pursuant to clause 8 above. 

10. Warranty 

10.1 The RUGGED MONITORING product are delivered to customers with a standard warranty period of 18 months from the date of shipment or 12 months from the date of installation whichever is sooner. The warranty terms and conditions are detailed in this section.

10.2 Extended warranty of up to 5 years total is available to customers at additional cost. Free calibration of the monitor along with calibration certificate is included in the extended warranty.

10.3 Where the Goods and services are found to be defective, the Seller shall, replace defective Goods and Services free of charge within the manufacturer’s warranty period (as per section 10.1), subject to the following conditions; 

10.3.1 A written (email) notification is sent by the Buyer to the Seller, as soon as the defect becomes apparent; 

10.3.2 The defect is there because of faulty design, materials or workmanship, but not because of mishandling of the Goods;

 10.4 The Buyer, at their own expenses, shall be responsible for returning the Goods to the Seller for repair or replacement, if being requested by the Seller. 

10.5 Where the Seller is supplying third party Goods along with its own manufactured goods, any warranty grated to the seller in respect of the third-party Goods shall be passed on to the Buyer. Buyer shall have no other remedy against seller unless other provisions are being agreed between the Buyer and the Seller. 

10.6 The Seller shall be entitled in its absolute discretion to refund the Price of the defective Goods if the Price has already been paid by the Buyer. 

10.7 The remedies contained in this Clause are without prejudice and subject to the other Conditions herein, including, but without limitation, to conditions 11 and 12 below. 

11. Liability 

11.1 No liability of any nature shall be incurred or accepted by the Seller to the Buyer in respect of any sale of good and services prior to the making of this contract.

 11.2 No liability of any nature shall be accepted by the Seller to the Buyer in respect of any express term of this contract where such term relates in any way to: 

11.2.1 the correspondence of the Goods with any description;

 11.2.2 the quality of the Goods; or 11.2.3 the fitness of the Goods for any purpose whatsoever. 

11.3 Except where the Buyer deals as a consumer all other warranties, conditions or terms relating to fitness for purpose, quality or condition of the Goods, whether express or implied by statute or common law or otherwise are hereby excluded from the contract to the fullest extent permitted by law. 

11.4 For the avoidance of doubt, any claim for consequential or financial loss of any kind however caused, shall not be accepted by the Seller. Seller shall not be made liable for such claims. 

12. Warranty

Where any court or arbitrator determines that any part of Clause 11 above is, for whatever reason, unenforceable, the Seller shall be liable for all loss or damage suffered by the Buyer but in an amount not exceeding the Price of Good and Services agreed with the Buyer in that purchase order. 

13. Intellectual Property Rights

 13.1 Where any Goods and Services supplied by RUGGED MONITORING include or contain third party computer program(s) and/or related documentation, the use and/or reproduction of such computer program(s) and/or documentation shall be subject to the end user license agreement by the third party. The Buyer, not the Seller, shall be responsible for fair usage and/or reproduction in line with the end user license. 

13.2 If RUGGED MONITORING has to modify the design of its goods to meet Buyer’s specifications (requirements explicitly mentioned by the Buyer) or has to use third party products in delivering Good and Services to the Buyer, the Buyer shall indemnify RUGGED MONITORING against all liabilities for infringement of third party intellectual property rights arising from the use of such Design or Products. 

13.3 While delivering the customized Goods and Services to the Buyer (subject to clause 13.2), the Seller shall not be liable to the Buyer under no circumstances for any loss and/or damage (direct / indirect) resulting from any infringement to intellectual property rights. It shall be the responsibility of the Buyer to rectify the infringement at their own expenses. RUGGED MONITORING may help the buyer in modifying the design or use non-infringing products / design at additional cost to the Buyer. 

13.4 All Intellectual Property Rights produced from or arising as a result of the performance of any contract shall, so far as not already vested, become the absolute property of the Seller. The Buyer shall do all that is reasonably necessary to ensure that such rights vest in the Seller by the execution of appropriate instruments or the making of agreements with third parties. 

14. Force Majeure

The Seller shall not be liable for any delay or failure in performing any of its obligations if the delay or failure results from unforeseen events or circumstances outside its reasonable control, including but not limited to acts of God, earthquake, hurricanes, strikes, accidents, war, fire, breakdown of plant or machinery or shortage / unavailability of raw materials from a natural source of supply. In such events of Force Majeure, the Seller shall be entitled to a reasonable extension of its obligations. If the delay persists for such time as the Seller considers unreasonable, it may without liability on its part, terminate the contract or any part of it. 

15. Relationship of Parties

This agreement shall not be considered for any partnership or joint venture between the parties. Nothing contained in these conditions is revenant for establishing partnership, join venture of agency agreement. There shall be separate agreements made for each partnership, joint venture and agency. 

16. Assignment and Sub-Contracting

This contract is a non-transferrable contract between the Buyer and Seller for the sale of Goods and Services and the Buyer shall not assign or transfer it to third party without seeking prior approval / consent from the Seller. Sub-contracting of obligations of this contract to third party by the Buyer, without getting prior written approval / consent from the Seller is also prohibited.. 

17. Waiver If any one or both the parties (buyer and seller) fail to enforce one or more of the Provisions / Conditions set on this document at any time or for any time duration, even then all Provisions / Conditions of this agreement shall be enforceable at any time subsequently. At any point of time “Not Enforcing” must not be treated as the “Waiver” of the Provisions / Conditions for this agreement. 

18. Severability

If any one or more terms or provisions of this Terms and Condition document held to be illegal, invalid or unenforceable for any reason by any court of competent jurisdiction such invalidity shall not affect the enforceability of the remainder of the provisions mentioned in this document. All the remainder provisions (that are not subject to invalidation) hereof shall continue in full force and effect as if these Conditions had been agreed independent of the illegal, invalid, or unenforceable provisions eliminated.. 

19. No set off

The Buyer may not withhold payment of any invoice or other amount due to the Seller by reason of any right of set-off or counterclaim which the Buyer may have or allege to have for any reason whatsoever. 

20. Entire Agreement

These Terms and Conditions and any documents incorporating them (RUGGED MONITORING Quotations, Sales Orders etc.) or incorporated by them constitute the entire / full agreement and understanding between the parties.

21. Governing Law and Jurisdiction

This Agreement shall be governed by and construed in accordance with the law of Province of Quebec, Canada and the parties hereby submit to the exclusive jurisdiction of the Province of Québec, Canada.