These terms and conditions (“Agreement”) relate to the buyer (“Purchaser”) placing a purchase order for: (a) the purchase of product(s) (“Products”); (b) the purchase of the associated parts and components (“Accessories”); (c) the license of software (“Software”); and (d) the license of signal services (“Signal Services”), which may be provided by NovAtel Inc. (“NovAtel”) or any of its affiliates under a quotation, either electronic or written, to which this Agreement is attached.
1. GENERAL: Following receipt of NovAtel’s manual or electronic quotation, Purchaser shall place a purchase order to purchase the Products, Accessories, Software or Signal Services from NovAtel (“Purchase Order”). Purchase Orders may be submitted manually in writing or via NovAtel’s e-commerce system as described in Section 2. All Purchase Orders placed by Purchaser are subject to NovAtel’s written acceptance. Where Purchaser wishes to purchase Products, Accessories, Software or Signal Services from NovAtel, then this Agreement shall be deemed to form an integral part of all acceptances by NovAtel, relating to the provision of the Products, Accessories, Software or Signal Services so purchased.
2. ELECTRONIC ORDERING: With the exception of receipt of Purchase Orders for the purchase of Signal Services specified in Section 10.3 (which are required to be submitted manually), NovAtel may provide an e-commerce system to facilitate receipt of electronic Purchase Orders for the purchase of Products, Accessories, Software or Signal Services via its web UI/ Business to Business store (“B2B”) facilitated by NovAtel’s salesforce application (herein referred to collectively as “Salesforce System”) or its machine to machine interface (“M2M”). NovAtel shall provide access to its Salesforce System/M2M on the following basis:
2.1 NovAtel shall use reasonable endeavors to make available for use the Salesforce System/M2M twenty-four (24) hours per day (00:00 hours MST to 23:35 hours MST), although NovAtel makes no representations as to its ability to maintain continuous uptime of the Salesforce System/M2M;
2.2 NovAtel shall use reasonable endeavors to provide the Purchaser twenty-four (24) hours’ notice via email of any scheduled downtime of the Salesforce System/M2M;
2.3 In accordance with security mechanisms, NovAtel shall place a twenty-four (24) hour transaction limit on the value of cumulative transactions which will be unique to Purchaser and which shall be agreed at the registration process to utilize the Salesforce System/M2M.
Where NovAtel accepts a Purchase Order made through its Salesforce System/M2M it shall provide confirmation (“Order Confirmation Email”)and shall: (a) provide access credentials (username and password) to Purchaser; (b) provide a Product serial number and/or authorization code for access to the Signal Services for Purchaser’s use; (c) assist the Purchaser via telephone support during the hours of 08:00 hours – 17:00 hours MST; (d) facilitate payment via: (i) credit card payments for B2B purchases (NovAtel reserves the right to put limits on credit card transactions in addition to any limits the credit card provider may impose) or (ii) invoices on a daily basis relating to authorization codes and Signal Services subscriptions using the traditional NovAtel accounts receivable process; and (e) provide access to the Signal Services together with access instructions.
3. PRICES: All prices provided in any quotation are firm fixed price. Where Products and Accessories are being supplied, shipping terms are FCA (INCOTERMS 2010) NovAtel’s facility in Calgary, Alberta, Canada. All prices include standard commercial packing for domestic shipment. All transportation, insurance, custom packing costs and expenses, and all Federal, Provincial and local excise, duties, sales, and other similar taxes are the sole responsibility of the Purchaser.
Pricing for Software or Signal Services (“Subscription Services”) shall become effective on the commencement date of the Subscription Services and shall remain effective during the term specified in a Purchase Order. Pricing for any renewal of Subscription Services shall be subject to NovAtel’s then current pricing, and pursuant to any new Purchase Order placed by the Buyer and accepted by NovAtel upon renewal.
4. PAYMENT TERMS: Payment terms for the Products, Accessories, Software or Signal Services are pre-payment unless otherwise agreed in writing. If payment terms are extended by NovAtel, invoices are due net thirty (30) calendar days from the invoice date. Purchaser shall remit payments in United States Dollars (“USD”) to: 1120 – 68th Avenue N.E., Calgary, Alberta, T2E 8S5, Canada. Interest shall be charged on any overdue amount at the rate of 18% per annum (1.5% per month), or the maximum amount permitted by law, from the date upon which any overdue amount became payable. NovAtel shall retain a security interest in any Products and/or Accessories sold to the Purchaser until the purchase price for the Products and/or Accessories has been fully paid by the Purchaser. Upon request, the Purchaser shall take all steps necessary to perfect NovAtel’s security interest in the Products and/or Accessories. Title to and in the Products and/or Accessories shall pass to the Purchaser upon receipt by NovAtel of full payment of the purchase price for the Products and/or Accessories. Payment for the Products, Accessories, Software or Signal Services may also be made by credit card via NovAtel’s Salesforce System/M2M as described in Section 2 above. NovAtel reserves the right to set or vary credit limits from time to time and withhold all further delivery of Products, Accessories, Software or Signal Services if Buyer exceeds such credit limit.
5. DELIVERY AND RISK: Purchaser shall supply shipping instructions with each Purchase Order which it issues to NovAtel which shall include: (a) “ship to” and “bill to” addresses; (b) NovAtel quotation number; (c) details of the preferred carrier and account number; and (d) details of custom broker/freight forwarder including name and contact number. In the absence of specific instructions, or as may be required by Applicable Export Laws, NovAtel may select a carrier and insure the Products, Accessories or Software in transit and shall charge Purchaser accordingly. NovAtel shall not be responsible for any failure to perform any Purchase Order due to unforeseen circumstances or causes beyond its ability to reasonably control. Risk of loss, damage or destruction of the Products, Accessories or Software shall pass to Purchaser upon delivery of same to the carrier.
6. INTELLECTUAL PROPERTY, COPYRIGHT AND CONFIDENTIALITY: Copyright in any Software, specifications, manual, training documents, sales documentation, drawing, technical description and other documents that may be supplied by NovAtel under or in connection with the purchase order and any and all intellectual property rights, title and interest in the design of any part of the Products and/or any part of the Accessories, whether such design be registered or not, shall vest in NovAtel absolutely. Any data, patent, copyright, proprietary right or confidentiality, know how, trademark or process with respect to the Signal Services, is the confidential proprietary information of NovAtel and all intellectual property rights, title and interest in same shall remain solely with NovAtel and its third-party vendors (as the case may be). The Purchaser shall keep confidential any information expressed or confirmed by NovAtel in writing to be confidential (“Confidential Information”). Purchaser shall not disclose the Confidential Information to any third-party without NovAtel's prior written consent or use the Confidential Information other than for the operation and maintenance of any Products and/or Accessories. Purchaser shall not reverse engineer, decompile nor disassemble the Products, Accessories, licensed Software or any portion thereof, nor otherwise attempt to create or derive any NovAtel or third-party intellectual property. “NovAtel” and the “NovAtel” logo are registered trademarks of NovAtel Inc.
7. WARRANTY: The term of warranty (“Warranty Period”) is for: (a) Products (other than Accessories) – twelve (12) months from the date of shipment, (b) Accessories – ninety (90) calendar days from the date of shipment; (c) Signal Services – no warranty term for Signal Services (see below). NovAtel warrants that during the Warranty Period that: (a) the Products and Accessories will be free from material defects in material and workmanship and conform to NovAtel’s specifications; (b) any Software will be materially free of defects which affect performance based on NovAtel’s specifications; and (c) for Products and Accessories that are manufactured by a third-party, NovAtel will extend the warranty coverage provided by the third-party, but NovAtel does not independently warrant any third-party Products or Accessories and the third-party’s warranty term may not coincide with the Warranty Period. Purchaser’s exclusive remedy for a claim under this warranty shall be limited to the repair or replacement, at NovAtel’s option, at NovAtel’s facility, of defective or nonconforming Products or Accessories, or in the case of Software, provision of a Software revision for implementation by the Purchaser. All Products returned under warranty shall be returned to NovAtel prepaid by the Purchaser. In the event that the returned Products are confirmed by NovAtel to be a warranted failure, Products shall be returned to the Purchaser prepaid by NovAtel. NovAtel’s return process may be accessed and initiated at: https://www.novatel.com/support/repair.
Signal Services are provided “AS IS”, without warranty of any kind, express or implied, and availability and/or accuracy of the Signal Services are not guaranteed. Signal Services are provided at the sole risk of the Purchaser. All published data relating to the coverage of the Signal Services is approximated. Reception and/or accuracy of the Signal Services is dependent on, but not limited to: (a) the Purchaser’s receiver and location; (b) interference to transmission of Signal Services from atmospheric or other sources; (c) obstruction of access to, or reflection of Signal Services due to the proximity of structures at the work location; (d) interruption to or non-performance of any of the GNSS constellations; and/or (e) Purchaser using any Signal Services in conjunction with any free to air signal such as IALA marine radio beacons.
The foregoing warranties do not extend to (a) nonconformities, defects or errors in the Products and/or Accessories due to accident, abuse, misuse or negligent use of the Products and/or Accessories; use of same in other than a normal and customary manner; environmental conditions not conforming to NovAtel’s specifications; or failure to follow prescribed installation, operating and maintenance procedures; (b) defects, errors or nonconformities in the Products and/or Accessories due to modifications, alterations, additions or changes not made in accordance with NovAtel’s specifications or as authorized in writing by NovAtel; (c) normal wear and tear; (d) damage caused by force of nature or act of any third person; (e) shipping damage; (f) service or repair of the Products and/or Accessories by the Purchaser without the prior written consent of NovAtel; (g) Products and/or Accessories designated by NovAtel as beta site test samples, experimental, developmental, pre-production, sample, incomplete or out of specification Products and/or Accessories; (h) returned Products and/or Accessories if the original identification marks have been removed or altered; or (i) services or research activities.
TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, THE AFOREMENTIONED WARRANTIES ARE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. UNDER NO CIRCUMSTANCES DOES NovAtel WARRANT THAT ANY SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR FREE.
8. EXPORT CONTROL: Purchaser acknowledges that provision of Products, Accessories, Software and Signal Services hereunder are subject to applicable export laws, rules and regulations (“Applicable Export Laws”), and as such the Products, Accessories, Software and Signal Services may be restricted or prohibited with respect to the Purchaser, or the country or nature of end-use. Purchaser understands and accepts that such Applicable Export Laws shall include, but shall not be limited to, those of Canada, the United States of America (USA), the United Kingdom (UK) and the European Union (EU) and the laws of the jurisdiction in which the Products, Accessories, Software and Signal Services are utilized. Purchaser understands and accepts that NovAtel shall not enable Signal Services for use, or dispatch any Products, Accessories, Software and NovAtel personnel to the Purchaser for use, diversion, export, re-export or import of Products, Accessories, Software and Signal Services or any portion thereof: (a) to or in a restricted country; (b) by any entity or person on any denial/debarment list; or (c) for any prohibited use, as designated by Applicable Export Laws. Applicable Export Laws are subject to change and the onus is upon the Purchaser to ensure that it familiarises itself with Applicable Export Laws which specify: (a) restricted countries; (b) denial/debarment lists; and (c) prohibited uses. The Purchaser hereby gives warranty to NovAtel that the Purchaser shall not utilise, divert, export, re-export or import, and shall not permit any third-party to utilise, divert, export, re-export or import, any Products, Accessories, Software and Signal Services: (a) to or in a restricted destination; (b) to any entity or person listed on any denial/debarment list; or (c) for any prohibited use, as designated by Applicable Export Laws.
9. SOFTWARE LICENSE: Any Software delivered with the Products shall at all times remain the property of NovAtel or any respective third-party (if applicable). Waypoint Software is licensed in accordance with the terms of the End User License Agreement provided with the Software. Any third-party Software is licensed in accordance with the license provided with the third-party Software. All other NovAtel Software is provided under a limited, non-exclusive, revocable, non-transferrable license to copy and use the Software, in object code form only, strictly for the Purchaser’s internal purposes in connection with the use of NovAtel’s Products. No other use is licensed. Purchaser agrees not to modify, adapt, translate, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Software.
10. SIGNAL SERVICES LICENSE: Signal Services are defined as correction signal subscriptions which are available in two solutions: (a) TerraStar Signal Services; or (b) Oceanix Signal Services (as further defined in Sections 10.1 and 10.2 below respectively).
10.1 TerraStar Signal Services: The TerraStar Signal Services are not intended for primary navigation purposes and shall not be used in or on any offshore application or used in or on any offshore dynamic positioning application. The TerraStar Signal Services are supplied wholly for use within the following market sectors: (a) the agricultural market; (b) all other markets where Products are utilized on land; (c) UAV market where Products are airborne and utilized over or above land only; (d) all other markets where Products are airborne and are utilized over or above land and over or above territorial waters adjacent to land; or (e) the government and military market. Except as otherwise expressly agreed in writing by NovAtel, TerraStar Signal Services shall not be used in conjunction with any receiver hardware incorporated within any autonomous road motor vehicle.
10.1.1 TerraStar Signal Services purchased for use in connection with the markets sectors identified in Sections 10.1(a) and 10.1(b) are for use on land only. TerraStar Signal Services purchased for use in connection with the markets sector identified in Section 10.1(c) are for use over or above land only. TerraStar Signal Services purchased for use in connection with the markets sectors identified in Sections 10.1(d) and 10.1(e) are for global use.
10.1.2 Where TerraStar Signal Services are purchased for use in connection with the markets sectors identified in Sections 10.1(a) and 10.1(b) above, then TerraStar Signal Services shall be: (a) geo-gated and shall not be available where the position determined on the receiver hardware is computed as being offshore; and (b) speed-gated and shall not be available where the speed measured by the receiver hardware exceeds 36ms-1.
10.1.3 Where TerraStar Signal Services are purchased for use in connection with the market sectors identified in Section 10.1(c), then TerraStar Signal Services shall be for use over or above land only.
10.1.4 NovAtel shall have no liability to Purchaser or to any third-party in connection with the de-activation of the TerraStar Signal Services as a result of the concepts of geo-gating or speed-gating being applicable. Purchaser shall be responsible for and shall save, indemnify, defend and hold harmless NovAtel and its affiliates on demand, from and against any and all claims, losses, damages, costs (including legal costs) expenses and liabilities which NovAtel may suffer in connection with the de-activation of the TerraStar Signal Services as a result of the concepts of geo-gating or speed-gating being applied.
10.1.5 Where the TerraStar Signal Services are used in connection with the market sector identified in Sections 10.2(c) and 10.2(d), same shall be used in accordance with the provisions of any relevant international laws, regulations, local laws, by-laws, Civil Aviation Conventions and other pertinent conventions (“Laws”) which are applicable to the use of airspace and which determines the rules with respect to air traffic control or any other air traffic services which relate to such airspace. The onus is upon Purchaser to fully familiarize itself with the aforementioned Laws. NovAtel shall have no liability to Purchaser or to any third-party in connection with the use of the TerraStar Signal Services with airborne applications and Purchaser shall be responsible for and shall save, indemnify, defend and hold harmless NovAtel and its affiliates on demand, from and against any and all claims, losses, damages, costs (including legal costs) expenses and liabilities which NovAtel may suffer in connection with the use of the TerraStar Signal Services with airborne applications.
10.2 Oceanix Signal Services: The Oceanix Signal Services are not intended for primary navigation purposes and shall not be used in or on any oil and gas application or used in or on any oil and gas dynamic positioning application. The Oceanix Signal Services comprise of the: (a) Oceanix Nearshore Signal Service; and (b) the Oceanix Offshore Signal Service. The Oceanix Signal Services are supplied wholly for use within the following markets: (a) navigation related to near shore survey; (b) use in inland waterways and offshore dredging; (c) uses connected with wind farms; (d) for use by cable lay vessels; (e) pilotage for tug boats; (f) coastal patrolling purposes; (g) search and rescue purposes; (h) use by science and research vessels; (i) government operations; (j) hydrography/bathymetry surveys; (k) military operations; (l) commercial shipping; or (m) passenger vessels. Where Oceanix Nearshore Signal Services are purchased for use in connection with any of the market sectors identified in Section 10.2, then Oceanix Nearshore Signal Services shall be geo-gated and shall not be available where the position determined on the receiver hardware is computed as exceeding sixty (60) kilometres offshore.
10.3 Manual Purchase Orders: In the event that the Purchaser wishes to purchase thoseSignal Services identified in Section 10.1(d) (Airborne TerraStar Signal Services); Section 10.1(e) (Government and Military TerraStar Signal Services); or Section 10.2 sub-letter (b) of the second sentence (Oceanix Offshore Signal Services), then Purchaser shall be required to submit a manual Purchase Order for review by NovAtel prior to acceptance. The purchase of the aforementioned Signal Services cannot be facilitated via any NovAtel e-commerce system.
10.4 Deactivation/Termination of Signal Services: NovAtel shall be entitled to de-activate and/or terminate the Signal Services with immediate notice in the following circumstances:
10.4.1 where the Signal Services are utilized outwith the market sector subscribed to;
10.4.2 where the Signal Services are supplied in circumstances which are contrary to applicable laws controlling export, imports, and re-sale in terms of restricted countries, restricted individuals or entities and/or restrictions on end use;
10.4.3 where the Signal Services are used in connection with the design, production, operation or storage of chemical, biological or nuclear weapons of any kind;
10.4.4 where the Signal Services are used by any third-party which has not subscribed to their use;
10.4.5 where the Signal Services are used in or on any offshore application or are used in or on any offshore dynamic positioning application (TerraStar Signal Services only);
10.4.6 where the Signal Services are copied, sold, transferred, re-broadcast, sub-licensed, rented or leased to third-parties by Purchaser; or
10.4.7 where the Signal Services are used by Purchaser and/or any third-party in any connection with the oil and gas industry.
Where de-activation or termination is applicable under Section 10.4, NovAtel shall have no liability to Purchaser or to any third-party and Purchaser shall be responsible for and shall save, indemnify, defend and hold harmless NovAtel and its affiliates on demand, from and against any and all claims, losses, damages costs (including legal costs) expenses and liabilities which NovAtel may suffer in connection with the de-activation and/or termination of the Signal Services under any of the circumstances listed in Section 10.4.
11. EXCLUSION OF LIABILITY: NOTWITHSTANDING ANYTHING TO THE CONTRARY, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL NovAtel NOR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF USE, LOSS OF REVENUE OR LOSS OF PROFIT EVEN IF NovAtel HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES. NovAtel's TOTAL LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT THAT NovAtel HAS BEEN PAID BY PURCHASER UNDER THIS AGREEMENT AT THE TIME THE CLAIM IS MADE. ALL EXCLUSIONS AND INDEMNITIES GIVEN UNDER SECTIONS 7, 10 AND 11 SHALL APPLY IRRESPECTIVE OF CAUSE AND NOTHWITHSTANDING THE NEGLIGENCE OR BREACH OF DUTY (WHETHER STATUTORY OR OTHERWISE) OF THE INDEMNIFIED PARTY OR ANY OTHER ENTITY OR PARTY, AND SHALL APPLY IRRESPECTIVE OF ANY CLAIM IN TORT, UNDER CONTRACT OR OTHER WISE AT LAW. EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW, NO CLAIM, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT MAY BE BROUGHT BY THE PURCHASER MORE THAN ONE (1) CALENDAR YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
13. GOVERNING LAW AND VENUE: This Agreement shall be interpreted under the laws of the Province of Alberta, Canada. This Agreement shall not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. In the event of a dispute arising out of or relating to this Agreement, the parties agree that they will submit to the exclusive jurisdiction of the courts of Calgary, Alberta, Canada.
14. ASSIGNMENT: Neither party shall assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other party, provided that such consent shall not be unreasonably withheld or delayed, except that NovAtel may assign its rights and obligations under this Agreement without the prior written consent of Purchaser to an affiliate, or where an entity acquires all or part of the assets of NovAtel or all or part of the assets of any subsidiary or successor of NovAtel in a merger or acquisition of NovAtel.
15. U.S. GOVERNMENT: NovAtel is a Canadian corporation and is an actively registered U.S. Government contractor in the System for Award Management (SAM) under DUNS# 240662007 and NCAGE Code# 38757. NovAtel certifies that: (a) all NovAtel Products, Software, Signal Services and Accessories offered under this Agreement are “Commercial Items” as defined under FAR §2.101 developed at private expense; and (b) NovAtel Products are manufactured in Canada and NovAtel’s work under any resulting award/contract will be performed in Canada using employees recruited in Canada. Notwithstanding the foregoing, for the avoidance of doubt, the preceding certification does not apply to subcontractor or any third-party Products.
16. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the parties hereto with regard to the subject matter hereof. This Agreement supersedes any and all prior discussions and/or representations, whether written or oral, and no reference to prior dealings may be used in any way to modify the expressed understandings of this Agreement. Any future representations, promises and verbal agreements related to the Products, Accessories, Software or Signal Services including but not limited to features, future enhancements, functionality, or services covered by this Agreement will be of no force or effect unless reduced in writing and made a part of this Agreement. In the event of a conflict between this Agreement and any Purchase Order, the terms and conditions of this Agreement shall prevail.
This Agreement shall not be amended or modified unless so done in writing and signed by an authorized representative of NovAtel. The pre-printed terms and conditions of any purchase order issued by PURCHASER or any other terms and conditions of a purchase order issued by PURCHASER which may conflict in any way with the terms and conditions of this Agreement shall be regarded by the parties as void, even if issued subsequent to the effective date of this Agreement, and shall not be deemed to constitute a change to this Agreement under any circumstances whatsoever.