Terms & Conditions for Sale of Acoustic Components

Terms & Conditions for Sale of Acoustic Components

 Definitions and interpretations

  • ‘Company’- GeoSpectrum Technologies Inc.
  • ‘Customer’-the person, firm or company for whom the Company is providing the product or service and is identified on the Purchase Order
  • ‘Company’s Quotation’ – last quotation provided by the Company for the purchase at subject
  1. Incorporation and precedence

Sale of any goods and or any related services (collectively, “Products”) referenced in a written purchase order issued by Customer to Company (the “Purchase Order”) are expressly conditioned upon the terms and conditions set forth below. Any additional or different terms specified or referenced in Customer’s Purchase Order are hereby rejected and shall not be binding unless expressly agreed to in writing by the Company. No Purchase Order issued by Customer shall be deemed accepted unless and until Company provides a written acknowledgement thereof in the form of a written Order Confirmation.

In the event of any conflict or inconsistency between these Terms, the Purchase Order and the Order Confirmation, the Order Confirmation shall prevail.

  1. Price

The prices of all Products and Services hereunder are exclusive of all taxes (including without limitation purchase taxes and value added taxes, import duties, fees, excises, and/or charges) which are now or may hereafter be directly imposed on Company with respect to sale of the Products and/or the Services. If Company is required by law to directly pay any such taxes, fees, excises, and/or charges, the Customer shall promptly reimburse Company upon Company presentation to the Buyer of a receipt acknowledging such payment.

  1. Payment
    • Customer shall make all payments due to Company in full, without any set-off, counterclaim, deduction, or withholding of any kind, whether arising under the order or otherwise, except as required by applicable law on a NET 30 days of date of invoice, unless otherwise indicated on the Order Confirmation.
    • In the event that the Customer fails to make any payment on the due date to the Company under the order then without prejudice to any other remedy or right available to the Company, the Company shall be entitled to suspend any further deliveries or services to the Customer without liability to the Company.
    • Without prejudice to the Company’s rights under these terms and conditions or at law, any sums not paid on the due date shall be subject to an interest charge at the rate of 12% per annum invoiced monthly on all amounts overdue until payment.
  2. Packing, Delivery and Risk

Products shall be packed in accordance with Company’s standard commercial practices, unless otherwise expressly agreed in writing.

The delivery schedule is as specified in the Order Confirmation. The delivery lead time is dependent on Company’s timely receipt of materials and production schedule backlog. The delivery lead time may also be subject to the timely receipt of any Customer’s information or equipment which may be required in connection with the order and an executed End User Statement (EUS) from the customer as well as the approval of Company’s export permit application by any applicable Government authorities. The Company will endeavor, at all times, to meet any dates or times specified or requested for delivery and/or installation of the Products and for the provision of Services. In case significant unexpected delays are incurred due to Force Majeure or other circumstances, the Company will advise the Customer and strive for an agreed revised delivery schedule. The Company shall not have any liability for delay or for any damages or losses sustained by the Customer as a result of such occurrence.   The Customer shall not be entitled to refuse to accept delivery of the Products or Services or treat the order as terminated as a consequence of the Company’s delay.

The Company reserves the right to make deliveries in installments as the Company may see fit.  Delay or other default in relation to a particular installment shall not relieve the Customer of the obligation to accept delivery of and pay for other installments. Delivery shall be Ex Works GeoSpectrum Technologies Inc., 10 Akerley Boulevard, Unit 19, Dartmouth, Nova Scotia, Canada, B3B 1J4, in accordance with Incoterms 2020, unless agreed otherwise (“Delivery”).

Risk of the goods shall pass to the Customer upon Delivery as defined above.

If the Customer or its carrier does not accept delivery, then without prejudice to any other right or remedy of the Company: (a) The cost of storing and insuring the Products shall be borne by the Customer; and (b) If such failure to accept delivery continues for more than ten (10) days, the Customer shall be deemed wrongly to have repudiated the order and the Company shall have the right to terminate the order for Customer breach.

  1. Acceptance

Unless otherwise agreed, inspection and acceptance of the Products and Services shall be performed by Company at Company’s facility in accordance with the Company’s standard test and acceptance procedure.  Company’s Certificate of Conformance (CofC) confirmed by its quality assurance final inspector shall be final proof that the applicable Products and/or Services are in compliance with their applicable technical specifications, and that the Products passed all relevant acceptance tests.

  1. Title

6.1 Products other than software:

Notwithstanding the passing of risk in any Products, full legal and beneficial ownership shall remain with the Company until the full payment of the respective Product.

6.2 Software:

6.2.1 Subject to the terms and conditions hereof, the Company grants to the Customer a personal, non-transferable, non-exclusive license to use the Software in machine readable form in conjunction with the Products to be supplied to the Customer for their intended purpose.  Where the Customer is not the End User, the Customer shall contact the Company to arrange an appropriate End User license.

  • The Customer shall not make any copies of the Software.
  • The Customer may not modify or merge with other data or software, the Software or any part thereof.
  • The Customer shall not reverse engineer, disassemble, modify or decompile the Software except to the extent permitted by the Company.
  • The Customer shall not acquire any title to ownership of the Software other than ownership of the physical media on which the Software resides.  The Customer acknowledges that the Software may have been developed by a third-party software supplier named in the copyright notice(s) included with the Software and agrees that the third party shall be authorized to hold the Customer responsible for any copyright infringement or breach of the terms of Articles 10 (d), 10 (e), and 10 (f) by the Customer.
  • The Company may revoke the license granted to the Customer under Article 10(c) at any time if the Company terminates the order for Customer breach and/or if the Customer fails to comply with the conditions set out in Articles 10(d), 10(e), and 10(f), whereupon the Customer shall immediately cease all further use of the Software and shall, at its sole cost, immediately return the Software to the Company.
  1. Warranty
    • Any Goods which are found to the Company’s satisfaction to be defective as a result of faulty manufacture or workmanship and/or materially depart from the specification in accordance with Article 11, will, at the sole discretion of the Company, shall either be replaced or repaired free of charge provided that:

(1) the Products (or samples thereof showing the alleged defects) are returned properly packed carriage paid to the Company’s facilities at the Customer’s risk within twelve (12) months from delivery as defined by these terms and conditions; and (2) the Products have not been misused, mishandled, overloaded, amended, modified or repaired in any way by any third party not authorized by Company,  the Customer its employees, agents or sub-contractors, or used for any purpose other than that for which they were designed; and (3) if the Products have been manufactured to the Customer’s drawing, design or specification the defects are not as a result of the faulty drawing, design or specification supplied by the Customer; and (4) if the Products have been installed and/or commissioned by someone other than the Company or its employees, agents or sub-contractors the defects are not as a result of faulty installation and/or commissioning; and (5) the defect is not due to normal wear and tear, willful damage, negligence, abnormal working conditions or failure to follow the Company’s instructions; and (6) the sums due in respect of the subject Product have been paid in their totality.

  • The Company may at its sole discretion and if so requested by the Customer, send the Company’s personnel to repair or replace the Products, provided that if on arrival at the Customer’s site it appears that the alleged defects do not exist or are the result of any of the causes referred to in Sub-Article 12 (a)(ii) to (v) inclusive hereof, then:
    • the Company shall be under no obligation to carry out any repairs or replacement and shall be entitled to recover from the Customer all costs and expenses involved in sending such personnel to the Customer’s site, at the Company’s normal charging rates for such personnel; and
    • if the Company agrees to carry out any repairs to the Products it shall be entitled to charge the Customer for all such costs and expenses referred to in Sub-Article 12 (b)(i) and all repair and replacement works, at the Company’s normal charging rate for such personnel and list price for any of the spare parts used.
  • Repaired or replaced Products will be delivered Ex-Works to the Company’s dock or on such arrangements as are agreed between the parties.
  • In the case of Products not manufactured by the Company, any warranty shall be limited to that given to the Company by the manufacturer.
  • Except as expressly set out in this Article 6, all warranties, representations, conditions and terms, whether express or implied (including any warranty of merchantability, fitness for a particular purpose, satisfactory quality, or conformity to description), are hereby excluded. The foregoing warranty is Customer’s sole and exclusive remedy.
  1. Liability
    • Company shall be liable only for direct damages arising out of bodily injury, death, or physical damage to tangible property, to the extent such damages are directly caused by the negligence of the Company in connection with the performance of this Agreement.
    • Notwithstanding anything to the contrary, Company shall not be liable for any indirect, incidental, consequential, special, or punitive damages, including any loss of profit, revenue, data, use, business, or reputation, regardless of foreseeability.

Except in cases of gross negligence or willful misconduct, Company’s total aggregate liability arising out of or in connection with a Purchase Order shall not exceed the price paid by Customer for the Product giving rise to the claim.

These limitations apply notwithstanding any failure of essential purpose. Any remedies expressly provided herein are exclusive.

  • The Customer acknowledges and agrees that:
    • it is responsible for the operation of the Products and should ensure that they are used safely and that it should use, maintain, store and keep the Products in accordance with any instructions, user handbook or other form of guidance from the Company relating to them; and
    • the price of the Products and/or Services is quoted and agreed commercially
  • warranties or conditions, express or implied and whether arising directly or indirectly as to the description or condition or fitness for any purpose or satisfactory quality of the Products and/or as to the skill or care of the Company, its servants or agents relating to the provision of Services are excluded, and the Company shall not be liable to the Customer for any negligence of itself, its servants and agents, howsoever arising.
  1. Excusable events

The Company shall not be under any obligation and shall have no liability to the Customer if the Company is unable to perform as a result of any cause beyond the control of the Company, including without limitation acts of God, war (whether declared or not), sabotage, riot, explosion, government control, restrictions or prohibitions, or any other Customer or governmental act or omission, whether local or national, fire, accident, earthquake, storm, flood, epidemic, pandemic, drought, or other natural catastrophes, inability to obtain equipment, suitable raw materials, components, fuel, power or transportation, disputes with workmen, strikes or lockouts, or shortage of labour (“Force Majeure Event”).

In addition, any delay or failure in performance that is not solely attributable to the Company, including any delay caused in whole or in part by the Customer (including delay in providing information, approvals, or Buyer Furnished Equipment), shall constitute an excusable delay and shall not be deemed a breach or give rise to liability of the Company, but shall not be considered a Force Majeure event for the purposes of this Article.

If the Company is unable to perform any of its obligations under the order due to Force Majeure, the Company shall promptly notify the Customer of the expected extent and duration of such inability, and any affected delivery schedule shall be extended for a period not less than the duration of such delay. In the event that performance is prevented for a period of six (6) months or more due to a Force Majeure event, the Company may meet with the Customer to discuss future performance. If the parties fail to agree within thirty (30) days, the Company may terminate the order without liability, and the Customer shall promptly pay for all Products delivered and work performed prior to termination.

  1. Proprietary Information
    • “Proprietary Information” as used herein means any and all non-public information disclosed by one Party to the other, in connection with these terms. Such information may include, but is not limited to, technical information, including without limitation inventions, know-how, trade-secrets, operational information, including without limitation manufacturing and logistic methods, techniques, processes, capabilities and capacity; designs, drawings, diagrams, formulaes and analyses; business, financial and market information, including without limitation price lists, financial reports and analyses, customers lists, costs analyses, reports, protocols, minutes, business plans, policies and surveys, whether communicated in tangible or intangible form.
    • Proprietary Information, or any part thereof, whether capable of being copyrighted, patented, or otherwise registered at law or not, are for the purposes of these terms acknowledged by the recipient Party as being the sole property of the disclosing Party.
    • It is clarified that any Proprietary Information relating to the Products and/or Services and any Intellectual Property Rights in the Products and/or Services are the sole property of the Company.
    • The recipient Party shall keep the Proprietary Information in confidence and exercise at least the same degree of care and protection as the recipient Party takes to preserve its own proprietary information. Without the prior written approval of the disclosing Party, recipient Party shall not use, duplicate or permit the use or duplication, in any manner or form whatsoever, of the Proprietary Information, in whole or in part, other than for the sole purpose of the performance of this Agreement. The recipient Party shall not disclose the disclosing Party’s Proprietary Information to any third party and shall not decompile, disassemble, decode, reproduce, redesign, or reverse engineer Proprietary Information and/or any prototypes, products, equipment, software or other tangible objects which embody the disclosing Party’s Proprietary Information, and which are provided to the receiving Party. Notwithstanding the aforementioned, the Company may furnish to its subcontractors and to the certification authorities such documents, data, and other information it receives from the Buyer to the extent required for the performance of these terms.
    • In the event that the receiving Party is required by law, judicial or governmental order to disclose any Proprietary Information of the disclosing Party, the receiving Party shall, to the extent permitted by law, provide the disclosing Party with prompt written notice of such requirement so that the disclosing Party may seek an appropriate protective order or other appropriate remedy.
    • The confidentiality obligations hereunder shall not apply to information the receiving Party can prove: (a) is or becomes publicly available through no wrongful act of the receiving Party; (b) is rightfully known to the receiving Party prior to obtaining the same from the disclosing Party; (c) is obtained by the receiving Party subsequent to disclosure by the disclosing Party from a third-party without any restrictions on such information regarding confidentiality, disclosure and use; or (d) is independently developed by the receiving Party.
    • All Intellectual Property Rights and copyright in any Products and Services, and any assets of any kind conceived during and/or resulting from the performance of these terms, including without limitation all information, drawings, documents, materials, certificates and any materials furnished to the Buyer and/or any authority shall be solely vested in the Company. No license or other rights in the Company’s intellectual property, except for license to use Company’s Product, is granted to the Buyer hereunder.
  2. Export Compliance
    • The Parties’ performance hereunder is subject to applicable governmental laws, regulations and required approvals (including but not limited to import and export licenses), and each Party shall be responsible to apply for all such required approvals from its respective government. Each Party shall assist and support the other Party in obtaining the required approvals and licenses. Neither Party shall use, export, re-export or permit the use or re-export of the Products in violation of any law, regulation and/or license.
    • If applicable, the Company shall endeavor to obtain an export license and all other necessary consents to enable the Products to be exported to the Customer.  A pre-requisite for the issue of an export license is receipt of an End User Statement (EUS) which shall be supplied to the Company, signed and on Customer letterhead, in a timely manner.  It is solely responsibility of the Customer to provide any required End User Statement to the Company when requested to do so by the Company.
    • In the event that the Company is unable to obtain any required license or permit, including export license or visas or consents for personnel required to provide Services outside Canada, the Company shall not be held liable for its failure to perform the order.  The Customer shall be responsible for obtaining all consents necessary for the import of the Products to the country of its destination and, if required, any visas or consents required for the entry of the personnel into the country of destination. Any event of failure to obtain any required license or permit in a timely manner shall be considered an Event of Force Majeure.
    • Customer shall comply with all applicable export control laws and shall not re-export or transfer Products in violation thereof.
  1. Entire Agreement and Amendments

These conditions, and the Order Confirmation acceptance supersede all previous conditions, understandings, commitments, agreements or representations whatsoever whether oral or written relating to the subject matter.  The Customer acknowledges and agrees that save as expressly set out in these conditions, the Company will not have any liability for any untrue statement or representation made by it or on its behalf (whether or not negligently) upon which the Customer relied in entering into the order unless such untrue statement or representation was made fraudulently.  The order shall not be amended except by the written agreement signed by a duly authorized representative of the Company and the Customer.

  1. Assignment

Neither party may assign, transfer, pledge, charge, or otherwise deal with any of its rights or obligations under the order without the prior written consent of the other party, except that either party may assign the order, in whole or in part, without such consent, to an affiliate or in connection with a merger, reorganization, or sale of all or substantially all of its assets or business relating to the order, provided that the assigning party remains responsible for the performance of its obligations unless otherwise agreed.

  1. Waiver

No waiver by either party of any breach of any provision of the order shall be held to be a waiver of any other or subsequent breach and the failure of such party to enforce any provision shall not be deemed a waiver of any right subsequently to enforce any other provision.

  1. Severability

If any of the words or provisions of these conditions shall be deemed to be invalid, illegal or unenforceable for any reason, then the order shall be read as if the invalid, illegal or unenforceable words or provisions had to that extent been deleted and the validity of the remaining provisions shall not be affected.

  1. Publicity

No release shall be made by either Party to the news media or the general public relating to this Agreement or any order and/or the subject matter thereof without prior written approval of the other Party. Notwithstanding the above, Company, with prior written notice to Buyer, may disclose information required by law or regulation, including without limitation under any securities laws.

  1. Governing Law and Dispute Resolution

These Terms and Conditions, and any dispute, controversy, or claim arising out of or in connection with them (including any question regarding their existence, validity, or termination), shall be governed by and construed in accordance with the laws of the Province of Nova Scotia and the federal laws of Canada applicable therein, without regard to conflict of laws principles. The Parties expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods (1980), as amended.

Any such dispute shall be finally resolved by arbitration under the Rules of Arbitration of the International Chamber of Commerce by one arbitrator appointed in accordance with such Rules. The seat of arbitration shall be Toronto, Ontario, Canada or such other location as agreed between the parties. The arbitration shall be conducted in the English language. The arbitral award shall be final and binding upon the Parties, and judgment upon the award may be entered in any court of competent jurisdiction.