TERMS AND CONDITIONS OF SALES
Controlling Terms and Conditions:
All purchases and sales of products, including all parts, spare parts and components thereof (the “Products”) or services (the “Services”) between Buyer and Mightex Systems, and/or its direct and indirect subsidiaries (collectively,”Mightex”), shall be made pursuant to Mightex’s quote and/or order acknowledgement and shall be governed by these Terms and Conditions. These Terms and Conditions and Mightex’s quote and/or order acknowledgement shall constitute the entire agreement between the parties pertaining to the subject matter hereof, and shall supersede all prior or contemporaneous oral or written negotiations, agreements, understanding or representations with respect thereto. These Terms and Conditions shall supersede any conflicting provision contained in any purchase order of Buyer. Unless otherwise agreed in writing, nothing contained in any purchase order of Buyer shall in any way modify or add any provision to these Terms and Conditions. These Terms and Conditions may not be amended or any provision hereof waived in any way except by an instrument in writing signed by both parties. IN THE EVENT THAT MIGHTEX’S QUOTE IS DEEMED AN OFFER, ACCEPTANCE BY BUYER OF SUCH OFFER IS EXPRESSLY LIMITED TO THE TERMS CONTAINED HEREIN. ISSUANCE BY BUYER’S OF A PURCHASE ORDER SHALL BE DEEMED AN ACCEPTANCE OF THESE TERMS AND CONDITIONS. IN THE EVENT THAT MIGHTEX’S ORDER ACKNOWLEDGMENT IS DEEMED AN ACCEPTANCE OF BUYER’S PURCHASE ORDER, SUCH ACCEPTANCE BY MIGHTEX OF BUYER’S PURCHASE ORDER IS EXPRESSLY MADE CONDITIONAL ON ASSENT TO ANY ADDITIONAL AND DIFFERENT TERMS CONTAINED HEREIN.
License to Use Software:
Buyer acknowledges that the software or firmware components and applications, if any, accompanying the Products sold hereunder (the “Software”) are licensed and not sold to Buyer. Upon receipt of full payment therefore, Mightex grants to Buyer a nonexclusive, personal, nontransferable, limited and royalty-free license to use and execute such Software in object code form only and only in conjunction with the operation of the associated Product. Buyer shall receive no rights to the Software except as expressly provided herein. No license to use the source code of the Software is provided hereunder. Buyer agrees that it shall not use, distribute, license, sublicense, resell or otherwise transfer all or any part of the Software or supporting documentation other than as expressly permitted hereunder without the prior written consent of Mightex. Buyer agrees that it shall not, nor shall it permit any employee or agent of Buyer to, adapt, modify, copy, reproduce, reverse engineer, decompile, or disassemble the Software in any way without the prior written consent of Mightex. Except as expressly set forth herein, Mightex shall have no obligations to Buyer whatsoever with regard to the Software. Without limiting the generality of foregoing, Mightex has no obligation to develop updates or modifications to the Software or develop or provide Software development tools to Buyer, unless otherwise specified.
The prices for all Products and Services shall be as set forth in Mightex’s quote and/or order acknowledgement and such prices shall be exclusive of all taxes and other charges referenced hereafter, all of which shall be paid by Buyer. A handling fee will apply for using customer’s own shipping account. Buyer shall pay all transportation, handling, insurance, applicable taxes, license fees, import, export and customs fees and duties, tariffs and other charges related to the Products or Services purchased hereunder. If claiming tax exemption, Buyer must provide Mightex with valid tax exemption certificates. For Buyer having existing credit terms with Mightex, each invoice shall be due and payable in U.S. Dollars net thirty (30) days from the date of shipment. Such payment terms are subject to credit approval. Mightex reserves the right, at its sole discretion, to limit, cancel or modify Buyer’s credit terms as to time or amount from time to time and without prior notice. Mightex reserves the right to require alternative payment terms, including but not limited to sight draft, letter of credit or payment in advance. For credit card orders, and for all international orders, Buyer’s account will be charged upon purchase of the Products.
If Buyer fails to pay any invoice when due, Mightex may charge Buyer interest in an amount equal to one and one-quarter percent (1.25%) per month on any past due balance. Mightex may withhold delivery of any Products or Services at any time in which Buyer’s account is past due or exceeds its approved credit limit. If Mightex employs any legal process to recover any amount due and payable from Buyer hereunder, Buyer shall pay all costs of collection and reasonable attorney’s fees.
Delivery, Title and Risk of Loss:
Unless otherwise agreed to in writing, all Products will be delivered FOB, California. Delivery shall occur, title to the Products (except for title to any Software which shall at all times remain with Mightex) shall pass from Mightex to Buyer, and Buyer shall assume all risk of loss or damage, upon delivery of the Products to the carrier, unless otherwise agreed by both parties in writing. In no event shall Mightex be liable for any delay in delivery, or assume any liability in connection with shipment, nor shall the carrier be deemed an agent of Mightex.
Acceptance of Products:
Buyer shall inspect all Products promptly upon receipt. Delivery by Mightex of Product to Buyer shall constitute acceptance unless Mightex receives a written notice of missing part, defect or nonconformity within ten (10) business days, after receipt by Buyer, provided, that such acceptance shall not relieve Mightex of its warranty obligations hereunder.
Changes, Cancellation and Returns:
Mightex’s Cancellation and Return Policy.
Proprietary Rights and Confidentiality:
Mightex Rights. Unless otherwise specifically agreed in writing by Buyer and Mightex, as between Buyer and Mightex, Mightex retains all right, title and interest in and to the Software, all inventions, ideas, processes, methods, know-how, skills and techniques developed, discovered or conceived by Mightex or its employees, including without limitation those developed and/or used in connection with the manufacture of the Products or performing Services hereunder (collectively, “Mightex Rights”). Such rights include, but are not limited to, patent rights, copyrights, trade secret rights, trademark rights, mask work rights and other proprietary rights throughout the world. Mightex hereby grants to Buyer a nonexclusive, nontransferable, worldwide, limited license to use Mightex’s Rights solely to the extent required for Buyer to use the Products or Software sold or licensed hereunder. Mightex shall retain all right, title and interest in and to all materials, fixtures or tools designed, developed or manufactured by Mightex in connection with the manufacture of the Products.
Buyer Rights. Unless otherwise specifically agreed in writing by Buyer and Mightex, as between Buyer and Mightex, Buyer retains all right, title and interest in and to all specifications and materials provided by Buyer to Mightex, and all inventions, ideas, processes, methods, know-how, skills and techniques developed, discovered or conceived by Buyer or its employees (the “Buyer Rights”). Such rights include, but are not limited to, patent rights, copyrights, trade secret rights, trademark rights, mask work rights and other proprietary rights throughout the world. Buyer hereby grants to Mightex a nonexclusive, worldwide, limited license to use and exploit the Buyer Rights solely to the extent required for Mightex to perform its obligations and exercise its rights hereunder.
Confidentiality. Each of Buyer and Mightex acknowledges that in connection with the purchase and sale of Products or Services, each party may make available to the other party certain confidential and proprietary business and technical information and materials, including the Software (the “Confidential Information”). Confidential Information shall be clearly marked with proprietary legends of the disclosing party at the time of disclosure. If Confidential Information is orally or visually disclosed, it shall be reduced to writing and clearly marked with proprietary legends by disclosing party within 30 days of disclosure. All of the protections and restrictions in these Terms and Conditions as to the use and disclosure of Confidential Information shall apply during such 30-day period. Notwithstanding the foregoing, any information or material which by its nature and under the circumstances surrounding its disclosure is generally considered proprietary and confidential shall be deemed Confidential Information regardless of whether it is properly marked with legends or properly reduced to writing. Each party agrees that it (a) will hold the Confidential Information in strict confidence and use its reasonable efforts to prevent the unauthorized disclosure of the Confidential Information; (b) will not disclose the Confidential Information in any manner whatsoever, except as required by applicable law; (c) will use the Confidential Information only for the purpose of performing its obligations hereunder or in conjunction with the operation of the Products or Software and for no other purpose; and (d) will provide access to the Confidential Information to only those of its employees or representatives who need to know the Confidential Information for the purpose of performing their duties in connection with the Products or Services. These obligations shall not apply to information that: (i) was independently developed by or for the receiving party without use of the disclosing party’s Confidential Information, in whole or in part, as demonstrated by written evidence; (ii) is or becomes generally available to the public without breach of confidentiality obligations by the receiving party; (iii) was in the receiving party’s possession or was known by the receiving party without restriction at the time of disclosure by disclosing party, as demonstrated by written evidence; or (iv) is lawfully received by the receiving party on a nonconfidential basis from a third party without breach by such third party of any legal, contractual, or fiduciary obligation to the disclosing party.
Mightex’s Warranty Terms and Conditions.
Limitation of Liability:
Mightex shall not be liable for any commercial losses, loss of revenues or profits, loss of goodwill, inconvenience, or exemplary, special, incidental, indirect, consequential or punitive damages whatsoever, or claims of third parties, regardless of the form of any claim, whether in contract or tort, whether from breach of this agreement, or defective products, or loss of data or from any other use, even if Mightex has been advised or should be aware of the possibility of such damage. Mightex’s liability for loss or damages shall not exceed the purchase price paid for the particular product.
If any provision of these Terms and Conditions is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall remain, nevertheless, in full force and effect. The parties agree to renegotiate in good faith any term held invalid and to be bound by the mutually agreed substitute provision in order to give the most approximate effect intended by the parties.
No waiver of any provision of these Terms and Conditions shall be valid or binding on any party unless agreed to in writing by the party to be charged. The failure of either party to enforce at any time any of the provisions of these Terms and Conditions, or the failure to require at any time performance by the other party of any of the provisions of these Terms and Conditions, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the validity of either party to enforce each and every such provision thereafter.
Mightex hall have the right to terminate any order, or to delay the shipment thereof, by reason of (a) Buyer’s bankruptcy or insolvency, or the pendency of any proceedings against Buyer under any statute for the relief of debtors; (b) Buyer’s breach of these Terms and Conditions; (c) Mightex’s learning that the ultimate destination of the Products is other than that set forth in the Mightex quote; or (d) failure of Buyer to meet any other reasonable requirements established by Mightex or to provide timely responses to requests from Mightex (including acts or omissions of Buyer which may delay production).
These Terms and Conditions shall be construed under and according to the laws of the Province of Ontario, Canada, without regard to its conflict of law provisions.
In the event of any action, suit or proceeding relating to the subject matter hereof, the prevailing party shall be entitled, in addition to any other rights and remedies it may have, to recover its reasonable attorneys’ fees and related costs from the non-prevailing party.
CANCELLATION AND RETURN POLICY
After acceptance by the Seller, the Buyer’s order is not subject to cancellation, change, reduction in amounts, or suspension or delay of shipment, except with the Seller’s written consent. Canceled orders consented to by the Seller are subject to a minimum 15% cancellation charge, based upon all expenses incurred by the Seller up to the time of cancellation, including a reasonable profit on such expenses. This includes excess inventory of stock items that have been specifically allocated to the Buyer and exceed normal Seller inventory levels for a period. Seller may cancel the order in the following cases: the seller’s costs have exceeded selling price to Buyer; the Seller is unable to provide product due to factors beyond the Seller’s control.
If shipments are delayed by Buyer, payment shall become due on the date when Seller is prepared to make shipment unless otherwise agreed to in writing by Seller at time of incident. Products held for the Buyer shall be at the risk and expense of the Buyer.
After acceptance by the Seller, the Buyer’s order for Non-Catalog (or custom) products is not subject to cancellation, change, reduction in amounts, or suspension or delay of shipment. Nor can the custom products be returned to Mightex for any reason, as they cannot be restocked or resold to other customers. To return Catalog Products, Buyer must contact Seller within 14 days of receipt to attain a Return Merchandise Authorization (RMA) Number. A 15% or a minimum of US$50 order cancellation fee will be charged, and the Buyer is responsible for the shipping cost. After 14 days, the RMA number is still required; however, unless otherwise provided in a specific warranty, only products found to be defective are accepted for repair or replacement within the Warranty Period (as stated in Mightex’s “Warranty Terms and Conditions”) from invoice date. Return authorizations are valid 14 days from issue. All returned Products are subject to inspection and approval by Seller before issuing credit or replacement. Products displaying use, misuse, or other damage will not be accepted. Products must be in original manufacturer’s packaging. Products should be packaged in a separate carton with the return authorization number clearly marked on this shipping carton. Refunds are issued by check for pre-paid merchandise. Credit order refunds are issued to the credit card or Seller’s open account to which the Product was charged.
Other than as expressly set forth above or as contained in any express warranties provided with products and the extent permitted by law, the seller makes no warranties, express or implied, including warranties of merchantability or fitness of the merchandise for any particular purpose. The seller shall not be liable for loss or damage resulting from the use or performance of the products. In no event shall the seller be liable to the buyer or its customers for any special, indirect, incidental, exemplary or punitive damages resulting from loss of use, interruption of business, or lost profits, even if the seller has been advised of the possibility of such damages. Notwithstanding the foregoing, in no event shall the seller’s aggregate liability to the buyer and its customers exceed the amount paid for products purchased under this agreement in the prior 6 months.
Sales transactions are governed by the internal law of the Province of Ontario, Canada. and you agree to the exclusive jurisdiction of the Ontario courts in the event of any dispute.
We collect sales tax on shipments to: (a) all Canadian provinces and territories, and (b) CA addresses, unless the purchaser supplies us with a signed official state resale certificate or sales tax exemption certificate with the order. Purchasers outside the aforementioned states/provinces are responsible for their state or local sales/use tax, if any, and any other taxes payable by reason of this transaction.
Warranty and Safety Information:
Please refer to Mightex’s Warranty Terms and Conditions.
If your unit is out of warranty but needs repairs, please write to us for repair information.
(Mightex Systems, January 2008)
WARRANTY TERMS AND CONDITIONS
MIGHTEX’s products are warranted to be free from defects in materials and workmanship for a period of 12 months (“Warranty Period”) from the date of initial shipment. MIGHTEX’S liability under this warranty is limited to replacing any defective parts at its expense. MIGHTEX shall warrant the replacement products for the remainder of the original warranty period.
This warranty will not apply to those products: (i) repaired or altered other than in accordance with MIGHTEX’s product specifications or written approval by MIGHTEX’s duly authorized officer, or (ii) abused, misused, improperly handled in use or storage, or used in an unauthorized or improper manner or without following written procedures supplied by MIGHTEX, or (iii) original identification markings or labels have been removed, defaced or altered, or (iv) any other claims not arising directly from material defects in material or workmanship.
For board-level products (e.g. board-level cameras etc.) on which electronics components are exposed, one should be properly grounded when handling the products, in order to avoid Electro-Static Discharge (ESD) related damages. ESD related damages (which are considered as mis-handling) are not covered by product warranty.
Special contracts or contracts for nonstandard products may have modified terms of warranty and, in such cases, the terms as stated in the individual contract must be signed by the duly authorized officer of MIGHTEX and will supersede the standard terms.
MIGHTEX will make final determination as to cause or existence of defect and, at its option repair or replace the products, which prove to be defective during the warranty period. Products replaced under warranty will be warranted only for the balance of the warranty period from the original supplied equipment.
This warranty extends only to the original purchaser of the equipment from MIGHTEX. The purchaser must notify MIGHTEX within 15 days of first noticing any defect and promptly return the defective product upon receipt of RMA number(s) before expiration of the warranty period.
Products believed by purchaser to be defective shall be returned to MIGHTEX, with transportation and insurance prepaid by purchaser. Repaired or replaced products will be returned to purchaser by MIGHTEX, FOB city destination within the Continental United States and Canada, Transportation beyond these limits will be charged to purchaser.
Out-of-warranty repairs. A minimum charge of $85 (or equivalent) will apply for inspection of each out-of-warranty item. Additional charge may apply depending on the time required for each specific inspection. Repair charge will be quoted separately if the issue is deemed repairable by Mightex.
The warranty set out in above paragraph is the exclusive warranty made by MIGHTEX and is in lieu of all other warranties (except for specific product performance warranties), whether written, oral, or implied, including any warranty of merchantability or fitness for a particular purpose, and shall be CUSTOMER’S sole remedy and MIGHTEX’S sole liability on contract or warranty of otherwise for the products. This warranty shall not be modified or amended without the written approval of an officer of MIGHTEX.
IN NO EVENT SHALL MIGHTEX BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM THE FAILURE TO PERFORM UNDER THIS AGREEMENT OR THE FURNISHING, PERFORMANCE OR USE OF ANY GOODS OR SERVICES SOLD PURSUANT HERETO, WHETHER DUE TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR OTHERWISE.
(Mightex Systems, January 2008)
Your knowledge and consent are required for the collection use or disclosure of your personally identifiable information except where required or permitted by law.
Such personally identifiable information may include your name postal address e-mail address company name and/or telephone numbers et cetera (collectively referred to herein as “Personal Information”).
We will never sell transfer or disclose any Personal Information we gather at our web site to any third parties without your prior consent except in cases when we believe in good faith that we have a legal obligation to disclose such Personal Information.
We collect Personal Information from visitors to our site solely on a voluntary basis and we never require that this Personal Information be provided in order to gain access to our site.
The Personal Information we collect is limited to those details necessary for the purposes identified. We only collect information by fair and lawful means.
Limiting Use Disclosure and Retention:
We will use your Personal Information only for the purpose for which it was collected unless you have otherwise consented or when it is required or permitted by law.
Your information will be retained only for the period of time required to fulfill the purpose for which it was collected.
We always identify before or at the time personal information is collected the purposes for which the information is required.
We collect Personal Information primarily for the following reasons: 1) to respond to client inquiries 2) in connection with considering and evaluating applications for employment e-mailed to us 3) to e-mail clients with updates and news 4) to send out brochures etc. via regular mail to subscribers and 5) for use in our online and off-line marketing and advertising campaigns.
We will maintain your personal information in as accurate complete and up-to-date form as is necessary to fulfill the purposes for which it is to be used.
Safeguarding Customer Information:
We will protect your personal information by security safeguards that are appropriate to the sensitivity level of the information.
We will make information available to you concerning the policies and practices that apply to the management of your information.
Upon request you shall be informed of the existence use and disclosure of your personal information and you will be given access to it. You may verify the accuracy and completeness of the information and may request that it be amended if appropriate.
Handling Customer Complaints and Suggestions:
You may direct any questions or inquires with respect to our privacy principles outlined above or about our practices by contacting the designated person(s) accountable for privacy.
We will maintain and protect your personal information under our control. In fulfilling this mandate we have designated an individual who is accountable for our compliance with these Privacy Principles (see ‘How to Contact Us’ below).
Like many companies we may use “cookie” technology to track customer visits through our sites. Cookies are pieces of information that a web site transfers to an individual’s hard drive for record-keeping purposes. They enhance the on-line experience by saving your preferences while you are visiting a particular site.
The cookies we use do not contain any personally identifying information and cannot profile your system or collect information from your hard drive. And although you may receive cookies from many different sites each cookie can only be read by the Web server that originally issued it. You are not even identified by name or e-mail address just by a unique string of numbers that we assign the first time you come to our site.
We use your IP address in two ways: to help diagnose problems with our server and to administer our web sites and also to gather broad demographic information.
Polls & Surveys:
From time to time we may gather information from polls and surveys. The information we collect is for our internal use only. If sample answers to polls or surveys are posted on the web site then no identifiable Personal Information is ever included.
Our site provides users the opportunity to opt out of receiving communications from us at the point where we request information about the visitor. Simply follow the procedure outlined in our respective communications. Likewise we will provide users with the opportunity to change any personal information previously provided or to opt out of receiving future email communication from us.
How To Contact Us:
As the new technology of the Internet evolves and the Personal Information Protection and Electronic Documents Act (“PIPEDA”) and the Canadian provincial privacy laws in respect of the collection use or disclosure of personal information requirements evolve we intend to comply with these requirements and guidelines in a manner and in as timely a fashion as is technologically feasible in order to protect your privacy.