Terms and conditions of sale
OtoSim Inc. (“Vendor”) accepts order of purchaser (“Purchaser”) on the express condition that Purchaser agrees to and is bound by the terms and conditions set forth below. All orders by Purchaser shall be subject to the following terms and conditions of sale. Such agreement shall be conclusively and irrevocably evidenced by Purchaser accepting delivery of shipment under such order or by Purchaser’s payment of the invoice covering such payment.
1. Effects of terms and conditions
The sale of the goods described herein (the “Goods”) is subject to and governed solely by these terms and conditions and no terms or conditions of Purchaser’s purchase order, any agreement or any other understanding shall be binding on Vendor or apply in any manner to the sale of such Goods. No modification of these terms and conditions shall be of any force or effect unless signed by an authorized officer of Vendor.
2. Terms of payment
Unless otherwise specified, prices are quoted in US dollars, DDP for Goods being shipped to Purchaser in Canada or the USA with a valid Tax ID Number, and DDU for Goods being shipped to Purchaser outside of Canada or the USA. For shipments outside of Canada and the USA, customs duties, taxes and fees are not included in the product price or shipping and handling cost. Duties and taxes are the responsibility of the Customer. The Customer may check with their country’s customs office to determine what associated additional costs will be. Payment terms are 100% prepayment unless credit is established or a purchase order (PO) is issued. Where credit is established or a PO is issued, payment terms are net thirty (30) days for wire transfer, cash or cheque without discount. Interest at the rate of 2% per month will be charged on past due accounts (26.8% per annum). If Purchaser’s account is past due, in addition to other rights and remedies, Vendor may suspend shipments, deliveries or performance hereunder or under any other contract with Purchaser until Purchaser’s account becomes current or until Vendor receives satisfactory security or cash prior to shipment.
Allow for four (4) to eight (8) weeks for delivery. Shipping dates are approximate only and Vendor assumes no responsibility for delays. If Purchaser requires emergency deliveries or outside of normal business hours, any extra costs shall be borne by Purchaser. The time period specified herein within which delivery is to be made shall commence upon receipt by Vendor of Purchaser’s written acceptance of Vendor’s order acknowledgement.
4. Title and risk of loss
All right, title and interest in and to the Goods shall remain with Vendor until such Goods have been paid for in full. However, such Goods shall be entirely at Purchaser’s risk from the time placed on a common carrier and the loss, damage, deterioration or destruction of the Goods thereafter shall not release Purchaser from its obligations hereunder. In the event of any default to make payment by the Purchaser, Vendor shall have the right to take possession of any Goods already delivered and to remove same without notice and without legal proceedings, in which case all payments theretofore made shall be credited to the Purchaser’s account after deduction of a reasonable rental fee and the costs of repossession, if any, including reasonable legal fees. Purchaser hereby agrees to defend, indemnify, and save harmless Vendor from any and all loss arising out of any or all claims, suits and demands by reason of, but not limited to, the retention of title to the Goods by Vendor while same are at the Purchaser’s risk.
Any tax of any nature including, without limitation, any excise, sales, use, Goods and services or other similar taxes which the Vendor may be required to pay, to collect or to reimburse to others, by reason of the manufacture, ownership, use or sale of any product sold or service provided hereunder shall be the sole responsibility of Purchaser and shall be added to the amount to be paid hereunder.
6. Limits of contract
Only the Goods specifically described in the purchase order are subject to the terms and conditions herein. Unless expressly specified, installation, repair or other similar services are not included. Any services so specified shall be governed by the terms and conditions hereof.
7. Resale of Goods
The sale of Goods is intended for the use of the Purchaser only. Resale of Goods is only allowed where a duly executed Distribution Agreement is in place with the vendor (OtoSim Inc.). Resale of Goods, outside of a Distribution Agreement, will void all Warranties and any Licenses to use the software. In addition, the Vendor will not support third parties.
8. Force majeure
For all purposes hereof, force majeure includes any act of God, war, mobilization, governmental regulation, strike, lockout, drought, flood, total or partial fire, obstruction of navigation, loss, damage or detention in transit, defective materials or delays by shippers, or other contingences or causes beyond Vendor’s control which might prevent the manufacture, shipment or delivery of Goods covered hereby. Performance of Vendor’s obligations may be suspended pending force majeure, without Vendor being responsible to Purchaser for any damages or losses resulting from such suspension.
9. Limited Warranty and Returns
i.) One-Year Limited Warranty
Vendor manufactures its hardware products from parts and components that are new or equivalent to new in accordance with industry-standard practices. Vendor warrants that the hardware products it manufactures will be free from defects in materials and workmanship. The limited warranty term is one year beginning on the date of shipping, as further described below.
Damage due to shipping the Goods to Purchaser is covered under this limited warranty. Otherwise, this limited warranty does not cover damage due to external causes, including accident, abuse, misuse, user-induced, problems with electrical power, usage not in accordance with product instructions, failure to perform required preventive maintenance, and problems caused by use of parts and components not supplied by the Vendor.
This limited warranty does not cover any items that are in one or more of the following categories: external devices or accessories or parts added to the Goods after the Goods are shipped from the Vendor. All components included in the Goods description are covered under this limited warranty; all other non-warranty components or parts are not covered.
During the one-year period beginning on the shipping date, Vendor will repair or replace products returned to Vendor’s facility. To request limited warranty service, Purchaser must contact Vendor’s main office within the limited warranty period. If limited warranty service is required, Vendor will issue a Return Material Authorization (RMA) Number. Purchaser must ship the Goods or a part thereof back to Vendor in their original or equivalent packaging, prepay shipping charges, and insure the shipment or accept the risk of loss or damage during shipment. Vendor will ship the repaired or replacement Goods or part thereof to Purchaser freight prepaid to the address of Purchaser. Shipments to other locations will be made freight collect.
Vendor owns all parts removed from repaired products. Vendor uses new and reconditioned parts made by various manufacturers in performing limited warranty repairs and building replacement products. If Vendor repairs or replaces a product, its limited warranty term is not extended.
VENDOR’S RESPONSIBILITY FOR MALFUNCTIONS AND DEFECTS IN HARDWARE IS LIMITED TO REPAIR AND REPLACEMENT AS SET FORTH IN THIS LIMITED WARRANTY STATEMENT. VENDOR DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH IN THIS LIMITED WARRANTY STATEMENT OR LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LIABILITY FOR PRODUCTS NOT BEING AVAILABLE FOR USE OR FOR LOST DATA OR SOFTWARE.
ii.) Extended Warranty Options
Purchaser has the option to purchase extended warranty for either two (2) or three (3) years. The Two-Year Extended Warranty option expends the One-Year Limited Warranty from one (1) consecutive year from the last day of the One-Year Limited Warranty period. The Three-Year Extended Warranty option expends the One-Year Limited Warranty from two (2) consecutive years from the last day of the One-Year Limited Warranty period. Purchaser shall have the right to purchase an extended warranty option up to six (6) months from the date of shipment of the Goods.
iii.) Services Beyond Warranty
Vendor shall provide to the Purchaser continued technical support for all Goods beyond limited and extended warranty. Vendor shall also provide services for any necessary repairs and / or replacements to restore functionality to the Goods beyond limited and extended warranty. In the event that the Goods or a part thereof require repair and / or replacement, Vendor shall assess service needs and provide the Purchaser with a cost estimate for parts, labour, and shipping the Goods to and from the Vendor’s facility for the necessary repair and /or replacement and the estimated time of delivery. Vendor shall invoice the Purchaser for the services provided upon the delivery of the Goods or parts thereof to the Purchaser. In the event that the anticipated service cannot restore functionality, Vendor shall inform the Purchaser of the situation and shall return the Goods to the Purchaser.
All OtoSim product sales are final. No returns for refund or exchange are permitted unless covered under our warranty or by the Ontario Consumer Protection Act.
10. Software License
i.) The Goods. Subject to all terms and conditions in this Agreement, Vendor grants Purchaser a nonexclusive, nontransferable, nonsublicensable right and license to have the Purchaser use the Goods without modification.
ii.) Limitations. Goods may only be used for Purchaser’s educational and training purposes. Unless Vendor expressly permits a greater number, Purchaser may install and use each unit of the purchased Goods on up to 3 computers, provided the same Purchaser is the primary Purchaser of the said computers and does not share the license. Use of any copy of the Goods shall otherwise comply with the terms and conditions in this Agreement. No copies of the Goods may be installed, used or retained on any computer for which Purchaser is not (or is no longer) the primary Purchaser.
iii.) License Control. Purchaser acknowledges that the Goods may contain code or require devices that detect or prevent unauthorized use of, or disable, the Goods, and Purchaser agrees not to circumvent or disable such code or devices.
iv.) Institutional Software License. In the event the Purchaser requires to install one license on to more than 3 Purchaser-owned computers, the Purchaser must purchase an additional Institutional Software License from the Vendor.
11. Limitation of liability
THE LIABILITY OF VENDOR WILL NOT UNDER ANY CIRCUMSTANCES EXCEED THE PURCHASE PRICE OF THE GOODS FURNISHED AND IN NO EVENT SHALL VENDOR BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY OR CONTINGENT DAMAGES OR COMMERCIAL LOSS OF ANY KIND (INCLUDING DAMAGES FOR LOSS OF PROFITS) ALLEGEDLY SUSTAINED BY PURCHASER. ALL DEVICES MANUFACTURED AND SUPPLIED BY OTOSIM INC ARE TO BE USED FOR SIMULATION AND TEACHING PURPOSES ONLY AND ARE NOT INTENDED FOR CLINICAL USE.
Purchaser agrees to indemnify, defend and hold Vendor and its affiliates, and their respective officers, directors, owners, agents, and licensors (collectively, the “Vendor Parties”) harmless from and against any and all claims, liability, losses, costs and expenses, including claims for personal injury (or death), property damage or other loss which claims are based upon defective or allegedly defective design, material or workmanship furnished by Vendor, (including costs and legal fees) incurred by any Vendor Party in connection with any use or alleged use of the equipment whether or not authorized by Purchaser. Vendor reserves the right, at Purchaser’s expense, to assume the exclusive defence and control of any claim or other matter otherwise subject to indemnification by Purchaser, and in such case, Purchaser agrees to cooperate with Vendor’s defence of such claim. All devices manufactured and supplied by OtoSim Inc are to be used for simulation and teaching purposes only and are not intended for clinical use.
Purchaser shall not assign or transfer this agreement or any interest in, or monies under, it without the written consent of Vendor and any assignment made without such consent shall be null and void.
14. Governing law and invalidity
Any provision hereof which is contrary to law will not invalidate any other provision thereof. The foregoing sets forth the sole and entire agreement between the parties with respect to the Goods supplied hereunder. These terms and conditions and the agreement evidenced thereby shall be governed by and interpreted in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this agreement or to any order.
15. Use of Name and Publicity
Purchaser agrees that Vendor may use Purchaser’s name, trade name, logo or trademark in advertising or publicity indicating that Purchaser is a customer of Vendor.
OtoSim Inc. Terms & Conditions – Version : May 2018