This Agreement (“Agreement”) constitutes the terms and conditions of sale for NovAtel Inc. (“NovAtel”) products identified in a NovAtel quotation (“Product(s)”) to the buyer (“Purchaser”).
1. GENERAL: This Agreement shall be deemed to be an integral part of all acceptances by Novatel and shall supersede any conflicting provisions of any purchase order or other communication of the Purchaser. All Purchase Orders are subject to approval and acceptance by NovAtel.
2. PRICES: All prices are Firm Fixed Price, FCA (INCOTERMS 2010) NovAtel’s plant 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 responsibility of the Purchaser.
3. PAYMENT: Terms are prepayment 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 overdue accounts at the rate of 18% per annum (1.5% per month) from due date. NovAtel shall retain a security interest in any Product sold to the Purchaser until the purchase price is paid in full. Upon request, the Purchaser shall take all steps necessary to perfect NovAtel’s security interest. Title to Product shall pass to the Purchaser upon payment of the purchase price in full.
4. DELIVERY: Purchaser shall supply shipping instructions with each order. (Ship to and bill to address, NovAtel Quotation #, Preferred carrier and account #, Custom broker/freight forwarder including name and contact #). In the absence of specific instructions, NovAtel may select a carrier and insure the Product in transit and charge Purchaser accordingly. NovAtel shall not be responsible for any failure to perform due to unforeseen circumstances or causes beyond its ability to reasonably control. Risk of loss, damage or destruction shall pass to Purchaser upon delivery to carrier. Goods are provided solely for incorporation into the Purchaser’s end product and shall not be onward delivered except as incorporated in the Purchaser’s end product.
5. COPYRIGHT AND CONFIDENTIALITY: Copyright in any specification, drawing, computer software, technical description and other document supplied by NovAtel under or in connection with the Order and all intellectual property rights in the design of any part of the Product or provision of services, whether such design be registered or not, shall vest in NovAtel absolutely. The Purchaser shall keep confidential any information expressed or confirmed by NovAtel in writing to be confidential and shall not disclose it without NovAtel's prior consent in writing to any third party or use it other than for the operation and maintenance of any Product provided.
6. LIMITED WARRANTY: Warranty Period: Products are subdivided into (i) product – one (1) year; and (ii) accessories – ninety (90) calendar days (in each case from the date of invoice) (hereafter “Warranty Period” as the case may be). NovAtel warrants that during the Warranty Period that (a) the Product will be free from defects in material and workmanship and conform to NovAtel specifications; (b) the software will be free from error which materially affect performance; and (c) if applicable as defined in the User’s Manual, be eligible for access to post contract support and software updates when available. 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 Product, parts or components or in the case of software, provision of a software revision for implementation by the Purchaser. All Product returned under warranty shall be returned to NovAtel prepaid by the Purchaser. In the event that the returned Product is confirmed by NovAtel to be a warranted failure, the Product shall be returned to the Purchaser prepaid by NovAtel.
The foregoing warranties do not extend to (i) nonconformities, defects or errors in the Product due to accident, abuse, misuse or negligent use of the Product or use 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, (ii) defects, errors or nonconformities in the Product due to modifications, alterations, additions or changes not made in accordance with NovAtel’s specifications or authorized by NovAtel, (iii) normal wear and tear, (iv) damage caused by force of nature or act of any third person, (v) shipping damage, (vi) service or repair of Product by the Purchaser without prior written consent from NovAtel, (vii) Product designated by NovAtel as beta site test samples, experimental, developmental, preproduction, sample, incomplete or out of specification Product, (viii) returned Product if the original identification marks have been removed or altered or (ix) services or research activities.
TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, THESE 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.
7. EXPORT CONTROL: Purchaser shall not use, export or re-export any portion of the Product except as authorized by United States law, Canadian law and the laws of the jurisdiction in which the Product are purchased (as applicable). In particular, the Product may not be exported or re-exported, transferred or re-transferred into any restricted destination (including countries or regions that the U.S.A., Canada, United Nations or European Union embargoes or sanctions) or (ii) to any person on any denial/debarment list. Customer represents and warrants that it is not located in, under control of, or a national or resident of any such country or on any such list.
8. SOFTWARE LICENSE: Any software delivered with the Product shall at all times remain the property of NovAtel or any respective third party (if applicable). NovAtel software is provided under a limited, non-exclusive, 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 Product. 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. Any third party software will be licensed in accordance with the license provided with the third party software.
9. EXCLUSION OF LIABILITY: NOT WITHSTANDING ANYTHING TO THE CONTRARY, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL NOVATEL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF USE, REVENUE OR 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. 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 PURCHASER MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
10. GOVERNING LAW AND VENUE: This Agreement shall be interpreted under the laws of the Province of Alberta. 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 venue is proper in and that they will submit to the exclusive jurisdiction of the courts of relevant jurisdiction in Calgary, Alberta, Canada.
11. 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, except that NovAtel may assign its rights and obligations under this Agreement without the approval of Purchaser to an entity which acquires all or substantially all of the assets of NovAtel Inc. or to any subsidiary, affiliate or successor in a merger or acquisition of NovAtel Inc.
12. 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 to in any way modify the expressed understandings of this Agreement. Any future representations, promises and verbal agreements related to the Product, 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.
THIS AGREEMENT MAY NOT BE AMENDED OR MODIFIED UNLESS SO DONE IN WRITING SIGNED BY AUTHORIZED REPRESENTATIVE OF NOVATEL. THE PRE-PRINTED TERMS AND CONDITIONS OF ANY PURCHASER PURCHASE ORDER OR ANY OTHER TERMS AND CONDITIONS OF A PURCHASER PURCHASE ORDER WHICH MAY CONFLICT IN ANY WAY WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT SHALL BE VOID, EVEN IF ISSUED SUBSEQUENT TO THE EFFECTIVE DATE OF THIS AGREEMENT, AND SHALL NOT BE DEEMED TO CONSTITUTE A CHANGE TO THIS AGREEMENT.