The following are the standard Terms and Conditions of all sales for products and services from Norsat International Inc. and all its subsidiaries and divisions, including Sinclair Technologies (“Norsat”). These Terms and Conditions, if accepted by Customer, constitute the terms and conditions of a binding agreement between Customer and Norsat.
1. Payment Terms. Payment terms are at Norsat’s sole discretion. If Norsat has agreed to credit terms, invoices for Products and Services are due and payable within the period specified on the attached quotation, said period to begin the day after the date of the invoice for such Products and Services. In the event that Norsat agrees to extend credit and no credit terms are specified on the quotation, invoices are due and payable within thirty (30) days after the date of the invoice. Norsat may charge Customers the Bank of Canada prime lending rate plus 5% per annum on any overdue amounts. 2. Entire Agreement. These Terms and Conditions apply to any offer, quote, bid or proposal (“Quote”) or Order Verification (“OV”) issued by Norsat to Customer concerning the provision of Products or Services.
a. Quotes: Upon acceptance of the Quote by Customer, such acceptance to be evidenced by Customer execution of the Quote and its return to Norsat by e-mail, facsimile or courier. The terms of the Quote, together with these Terms and Conditions, become a binding agreement (“Agreement”) between the parties. Unless otherwise provided in the Quote, in the case of any contradiction between the specifications set forth in these Terms and Conditions and those set forth in the Quote, the Quote shall prevail. Prior to final acceptance by the Customer, the Quote is revocable by Norsat. Customer agrees that any purchase order issued to Norsat concerning this Quote is issued only for the purposes of Customer’s internal authorization and internal use and that none of its terms and conditions shall modify the terms and conditions of this Quote. These Terms and Conditions shall apply to the Agreement, and shall form the entire agreement between the parties related to the Product and Services and, upon Customer’s acceptance of this Quote, shall supersede all earlier agreements and communications between the parties related to the Products and Services. Any attempt to alter or amend these Terms and Conditions or to enter into a new agreement concerning the Product and Services is null and void, unless it is agreed to in writing, signed by both Customer and Norsat.
b. Customer Purchase Orders placed without requesting a Quote: In cases where Customer places a Purchase Order directly with Norsat without requesting a quotation in advance, these Terms and Conditions become a binding agreement (“Agreement”) between the parties. Unless otherwise provided in the Order Verification, in the case of any contradiction between the specifications set forth in these Terms and Conditions and those set forth in the Order Verification, the Order Verification shall prevail. Any attempt to alter or amend these Terms and Conditions or to enter into a new agreement concerning the Product and Services is null and void, unless it is agreed to in writing, signed by both Customer and Norsat.
3. Unless specified otherwise: a. Price and Payment. Prices in the Offer are exclusive of any applicable sales, use, excise, value-added, business transfer, and like taxes and all customs and import export duties, fees, and charges without limitation, and Customer shall pay all such amounts. Any such amounts shown on the Quote are shown for
convenience only and in the event of any error, omission or change to these amounts, Customer shall be responsible for and shall pay the full amounts due. Prices shown in the Quote are subject to verification by Norsat at the time of acceptance by Customer of the Quote. If Customer does not purchase and take delivery of the entire quantity of the Product and Services ordered, then Customer shall pay such additional amounts as Norsat may charge for lesser quantities.
b. Product Packaging. Standard Norsat packaging materials and methods will be used. Should the Customer request non-standard packaging, additional charges may by applied to the order.
4. Acceptance and Delivery. Products and Services shall be accepted by Customer upon delivery, or as otherwise expressly set forth in the Quote. Products shall be delivered EXW Norsat’s facility in Richmond, British Columbia and Services shall be delivered as incurred. If within ten (10) days after delivery Customer does not advise Norsat in writing that the Products and Services or any portion thereof has been rejected (including the reasons therefore), then the Products and Services in their entirety shall be deemed to have been accepted by Customer. Title and risk of loss or damage, to the Products pass to Customer upon shipment from Norsat’s facility in Richmond, British Columbia. Norsat retains a security interest in the Products until the full price for the Products and Services are paid. Delivery dates set forth in the Quote are estimates only, and depend upon prompt acceptance by Customer of the Quote and upon Norsat’s inventory of the Products or their components and the availability of provision of Services. Norsat will try to meet the stated delivery dates for the Products and Services, but will not be liable to Customer or any other party for any delay in delivery of the Products and Services. Where applicable, satellite services are provided on an ‘on-demand’ basis and are subject to the availability of the capacity on the applicable satellite network. Services may be temporarily unavailable or limited because of capacity limitations, network equipment failures, distress or any other emergency pre-emption as required by Norsat or a supplier or may be temporarily interrupted or curtailed due to modifications, upgrades, repairs or similar activities of a supplier. Norsat has no liability for unavailability or malfunction of suppliers’ networks
5. Cancellation and Rescheduling. Customer’s orders are firm and non-cancellable. Norsat may cancel the Agreement, in whole or in part, if Customer breaches the Terms and Conditions of the Agreement or if there is a material change in Customer’s financial position. Regardless of any disclosure made by Customer to Norsat, Customer will not export, directly or indirectly, the Product and Services without obtaining all required licenses from the appropriate government agencies. Customer may not reschedule shipments without written permission from Norsat.
6. Use of Services and Equipment. Customer is solely responsible for determining and complying with the licensing requirements in any jurisdiction in which it is operating the Equipment. Customer will be liable for all use or misuse of the Services and/or Equipment hereunder, irrespective of whether such use or misuse was authorized, fraudulent or otherwise. Customers will not use the Services or Equipment in an abusive or fraudulent manner, including, but not
limited to the following: (i) accessing or attempting to access Services by using an unauthorized device or by tampering with or altering Equipment; (ii) obtaining or attempting to obtain permission to use Services or Equipment by providing false or misleading information; (iii) obtaining Services or Equipment without having the intent to pay charges incurred; (iv) intentionally interfering with or causing disruption in the provision of Services or Equipment to other Customers; (v) using Services or Equipment to further criminal activity; (vi) using Services or Equipment to make obscene or illegal communications, to impersonate another person with fraudulent or malicious intent or to call another person so frequently or at such times of day or in any other manner with the intended effect of annoying, threatening or harassing such other persons; or (vii) using Services or Equipment in a manner that interferes unreasonably with the use of services or equipment by one or more other Norsat customers. Norsat reserves the right to terminate use of the Services of any Customer engaging in abusive or fraudulent use of the Services or Equipment purchased from Norsat.
7. Default and Termination of Services. The occurrence or happening of any one or more of the following events will constitute an event of default if not remedied within ten (10) days after notice from Norsat: (i) use of the Services or Equipment in any manner or for any purpose contrary to law (see Article 19); (ii) abuse or fraudulent use of the Services and/or Equipment (iii) failure to make any payments due as invoiced; (iv) discovery by Norsat that any representation or warranty made by Customer in any document furnished by Customer to Norsat is incorrect; (v) breach or violation of any of these Terms and Conditions by Customer; or (vi) commencement of any proceeding, whether voluntarily or involuntarily, relating to Customer under any law relating to insolvency, bankruptcy or the protection of creditors’ rights generally. In the event of default, Norsat may, at Norsat’s sole option and without in any way limiting any other rights and remedies it may have, suspend or terminate Customer’s Service without notice. Norsat will bill Customer and Customer will pay Norsat, for all outstanding charges accrued up to and outstanding on the date of such termination. In all such cases, Norsat will incur no liability whatsoever. Customer will be liable for all costs and expenses incurred by Norsat due to default by a Customer, including but not limited to legal costs. Norsat, may, with no liability whatsoever, suspend or terminate Services and/or Equipment if lawfully ordered to cease operation of such Services and/or Equipment by a provincial or federal court of law, or any other lawful federal, state or local governmental authority. If at any time during the term of these Terms and Conditions any equipment, facilities, or property used by Norsat or its Suppliers to provide the Services and/or Equipment are taken for a public or quasi-public purpose by a lawful power or authority under the exercise of condemnation or eminent domain, Norsat will have the right, upon written notice to Customer, to terminate the Services and/or Equipment affected by the taking.
8. Confidentiality. Except as agreed in writing or subject to an applicable Non-Disclosure Agreement between the parties, Customer shall maintain in strict confidence all information disclosed by Norsat, including without limitation all technical and business data, drawings, software and know-how. Customer shall only use such information for the purposes of using the Product and Services. Information or knowledge disclosed to Norsat shall (i) not be subject to confidentiality obligations unless expressly agreed by Norsat, and (ii) shall be
free from restrictions, other than patent laws, as consideration or the Agreement. These confidentiality obligations shall survive the termination of the Agreement and shall continue for five (5) years thereafter. Customer shall not disclose Norsat’s name or this Agreement without Norsat’s prior written consent.
9. Scope. Norsat is not responsible for (i) any goods or services of any kind not supplied by Norsat, or (ii) any equipment connected to the Product and Services, or (iii) any software not authorized by Norsat which operates or is resident on or with the Products and Services, or (iv) any use or operation of the Products and Services not strictly in conformance with the applicable documentation, or (v) any combination of the foregoing. The specifications for the Products and Services are those established by Norsat. Norsat reserves the right at any time to make minor changes to the Products and Services. Customer part numbers, if any, are not binding to define the Products and Services and are for Customer’s reference only.
10. License. If the Products and Services include any software or other intellectual property (“IP”), then Norsat retains ownership of all IP and grants to Customer a limited, single user, non-transferable and nonexclusive license to use the IP in accordance with the documentation only on or with the one computer or system included in the Products and Services or otherwise owned by Customer at the time of this Agreement. If the IP rights granted are restricted in time or application (such as, but not limited to, use with a security device or key, whether tangible or intangible, then the license granted here is limited to use in strict conformance with any and all such restrictions. Customer is not authorized to make copies of the IP except that one copy may be made for nonoperational backup purposes. IP may not be copied, disclosed, rented, leased, sublicensed, modified, reverse engineered in any manner, made available on any network, or any one or more of the foregoing.
11. Limited Warranty. The Product will be free from defects in workmanship and materials for a period as defined in the table below, from the date that the Product was first purchased by Customer (the “Warranty Period”).
Sinclair branded standard rated antennas: 5 years
Sinclair branded PIM rated antennas: 2 years for PIM rating
All other Sinclair branded products: 2 years
Standard LNBs: 3 years
Standard BUCs: 2 years Custom LNBs, BUCs, and all other Microwave Products: 1 year Norsat
Satellite Terminals: 1 year All other products: 90 days
This Limited Warranty is not transferable except for a one time transfer from an authorized reseller to a single end user. During the Warranty Period, the Product, or if necessary, one or more of the Product components, will be repaired or replaced at Norsat’s option, without charge to Customer for either parts or labour. If the Product (or component thereof) is repaired or replaced during the Warranty Period, the Warranty Period will expire, upon the later of the 91st day after repair or replacement or the end of the original warranty period. Based on an agreement between Norsat and a designated Norsat reseller or distributor (the “Distributor”), this Limited Warranty for the Warranty Period shall be honoured by either Norsat or the Distributor. In order for Norsat or the Distributor to repair or replace the Product or the component(s) thereof in accordance with this Limited Warranty, Customer must ship the Product or component(s) thereof requiring repair or replacement in a properly protected shipping container such as an anti-static bag, surrounded on all sides with solid foam cushioning of a minimum two (2) inches thick, sealed in a sturdy shipping container. The Product or component(s) thereof must be shipped to Norsat or the Distributor, as the case may be, together with a “Return Material Authorization” number which number is issued by Norsat’s Customer Service department, clearly visible on the outside of the shipping container. Customer must ship the Terminal or component(s) thereof via courier or postal service which can provide proof of delivery. All charges for packaging, shipping, insurance, or any taxes or duties levied, assessed, or imposed in connection with the return of the Terminal or component(s) thereof for repair or replacement under this Limited Warranty is Customer’s responsibility.
This Limited Warranty does not apply to normal wear and tear, or if any component of the Product is opened or repaired by someone not authorized to do so by Norsat, and does not cover repair or replacement of any Product damaged by: misuse, moisture or liquids, proximity or exposure to heat, accident, abuse, neglect, misapplication, electrostatic discharge, mishandling, mechanical alteration, or defects due to repairs or modifications made by anyone other than Norsat. This Limited Warranty does not cover physical damage to the surface of the Product, including cracks or scratches on the monitor screen. This Limited Warranty does not apply to any equipment other than the Product as defined in this Limited Warranty.
This Limited Warranty also does not apply if the malfunction results from the use of the Product in conjunction with accessories, products, services or ancillary or peripheral equipment not expressly approved or provided by Norsat specifically for use with Customer’s particular Product, and where it is determined by Norsat that such malfunction is not the fault of the Product itself. Additionally, if malfunction results from the failure of the user to abide by the operating manual, the Limited Warranty may be void, and if it is not void, it shall not apply. Data backup is the responsibility of the user of the Product. Neither Norsat nor the reseller or distributor through whom Customer purchased the Product is responsible for data that may be damaged or lost at any time, including, without limitation data lost or damaged during the use or servicing of the Product. As the Product is designed to operate with satellite communications equipment provided by third party providers, we cannot guarantee or warrant that Customer’s Product access will always be available or that it will always function properly. For this and other reasons, the Product should not be relied upon for the transmission of data relating to emergency or life-threatening or mission critical situations, and Norsat disclaims any liability on its behalf, on behalf of the Distributor for events or damages resulting from such reliance or the failure of any third party satellite communications service to perform or to be available for Customer use through the Product. Norsat will not be responsible for any warranties or guarantees provided by the Distributor or any other party. Any repair or replacement pursuant to this Limited Warranty may be requested by Customer from the Distributor. Norsat does not warrant that any software bundled or included with the Product or sold in connection therewith the “Software”) will be free of defect or error. Updates or patches (“Updates”) for the Software may be made available to Customer from time to time as Norsat deems appropriate, at no further expense to Customers with a valid support contract. The provision of Updates to Customer does not in any way imply or convey to Customer any rights to the Software, or access to feature enhancements, code revisions, or functionality upgrades thereof. Customer shall only have access to Updates during the Warranty Period.
REPAIR OR REPLACEMENT OF THE PRODUCT OR PROVISION OF UPDATES FOR THE SOFTWARE, AS PROVIDED HEREIN, IS THE EXCLUSIVE REMEDY PROVIDED TO THE CUSTOMER. THIS LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED AND EXCEPT AS SET OUT HEREIN ALL REPRESENTATIONS, WARRANTIES, ENDORSEMENTS AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF TITLE OR NON-INFRINGEMENT AND ANY IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS OF FITNESS FOR A PURPOSE, MERCHANTABILITY, SATISFACTORY QUALITY, DURABILITY, OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE HEREBY EXCLUDED, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY AND/OR QUALITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE AND/OR ANY IMPLIED WARRANTY OR CONDITION OF NON-INFRINGEMENT. NEITHER NORSAT NOR ANY DISTRIBUTOR SHALL IN ANY WAY BE LIABLE TO CUSTOMER AND CUSTOMER HEREBY WAIVES ANY INDIRECT, ECONOMIC, SPECIAL, COMMERCIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF BUSINESS REVENUE OR EARNINGS, LOST DATA, DAMAGES CAUSED BY DELAYS OR A FAILURE TO REALIZE EXPECTED SAVINGS AND THE LIKE AND PERSONAL INJURY OR WRONGFUL DEATH DAMAGES) ARISING FROM OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE PRODUCT OR THE SOFTWARE, EVEN IF OR A DISTRIBUTOR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION IS INTENDED TO APPLY AND DOES APPLY WITHOUT REGARD TO WHETHER SUCH DAMAGES ARE CLAIMED, ASSERTED OR BROUGHT IN AN ACTION OR CLAIM SOUNDING IN TORT (INCLUDING NEGLIGENCE) OR CONTRACT, OR UNDER WARRANTY, OR UNDER ANY OTHER LAW OR FORM OF ACTION. ANY EXTERNAL COMPONENTS AND ACCESSORIES PROVIDED WITH THE PRODUCT ARE PROVIDED “AS IS” OR ARE SUBJECT TO THE LIMITED WARRANTY SPECIFICALLY APPLICABLE TO SUCH EXTERNAL COMPONENTS AND ACCESSORIES, IF ANY, AND NEITHER EXTERNAL COMPONENTS NOR ACCESSORIES ARE, FOR PURPOSES OF THIS WARRANTY, PART OF THE PRODUCT. CUSTOMER ASSUMES THE RISK OF USING ANY EXTERNAL COMPONENT OR ACCESSORY NOT PROVIDED AS PART OF THE PRODUCT. IN NO EVENT SHALL NORSAT’S LIABILITY TO CUSTOMER OR TO ANY THIRD PARTY CLAIMING THROUGH CUSTOMER OR ON CUSTOMER’S BEHALF EXCEED THE PURCHASE PRICE OF THE PRODUCT PURCHASED OR THE COST OF REPAIRING OR REPLACING THE PRODUCT, WHICHEVER IS GREATER.
12. Excusable Delay. Norsat is not responsible for any delay caused by any event or contingency which is not within the direct control of Norsat. Norsat shall be entitled to a schedule and price adjustment in the event of such excusable delay.
13. Assignment. This Agreement may not be transferred or assigned by Customer without the express written consent of Norsat, which may be withheld for any or no reason.
14. Waiver. Waiver by Norsat of any right, remedy, or breach of a term or condition of the Quote or Agreement shall not be construed as a waiver of any other right, remedy, or breach of the same or another term or condition.
15. Interpretation. The Quote shall be interpreted with all changes to number and gender as the context requires. INCOTERMS 2000 applies. Headings are for convenience only. The Agreement shall be interpreted with all changes to number and gender as the context requires. The parties hereto confirm that it is their wish that this contract and all related documents hereto shall be in English.
16. Equipment substitution. Over time, components and technology within the equipment proposed and their options will advance with better specifications and performance. Norsat reserves the right to substitute new technology in its products as required by the introduction of new components and technology in the market or due to existing components being withdrawn.
17. Labeling. The Customer shall not in any way alter, deface, remove, cover up or mutilate in any manner whatsoever, any trademark, serial or model number, symbol, brand or trade name which the Company or a manufacturer may attach or fix to or make a part of the Products. The Customer shall not affix to the Products any additional label, symbol, trademark, brand or trade name other than those designated by the Company unless previously approved by the Company.
18. Applicable Law. The laws of British Columbia and the federal laws of Canada applicable therein, without reference to its conflicts of laws jurisprudence, apply to and govern the Quote and the Agreement. The parties expressly disclaim the application of the United Nations Convention on Contracts for the International Sale of Goods to the Quote and the Agreement. Norsat will not be held responsible for any operational restrictions, customs, license or permit fees required for operation of the Network Services in the destination country. In addition, Norsat will have no responsibility for fines associated with Equipment seizure nor for legal ramifications of using Equipment in countries where it is prohibited. Customers are advised to contact the embassy or trade office of the destination country prior to entry into that country.