Terms & Conditions - Canada

THESE TERMS OF SALE ARE BETWEEN YOU (“PURCHASER” OR “YOU”) AND THE TRUFFIERE ENTITY IDENTIFIED IN OUR OFFER TO SELL (“QUOTE” or “Quotation”), AN ORDER, INVOICE OR STATEMENT OF WORK (COLLECTIVELY, THE "AGREEMENT" OR “TERMS OF SALE”), AND WILL APPLY TO YOUR ORDER AND PURCHASE OF THIRD PARTY HARDWARE, SOFTWARE AND RELATED THIRD PARTY SERVICES (COLLECTIVELY, "PRODUCT"), AND ANY SERVICES PERFORMED BY TRUFFIERE AS DESCRIBED IN A QUOTE, ORDER OR STATEMENT OF WORK (“SERVICES”).
UPON PLACING AN ORDER FOR PRODUCTS AND SERVICES, YOU AGREE TO BE BOUND BY AND ACCEPT THE TERMS OF THIS AGREEMENT UNLESS AND TO THE EXTENT THERE IS A SEPARATE WRITTEN AGREEMENT EXECUTED BETWEEN THE PARTIES THAT GOVERNS. ANY ADDITIONAL OR DIFFERING TERMS OR CONDITIONS PROPOSED OR INCLUDED IN YOUR PURCHASE ORDER DOCUMENT OR ORDER ACCEPTANCE WILL BE FOR YOUR INTERNAL ADMINISTRATIVE PURPOSES ONLY AND NOT BECOME PART OF THE AGREEMENT AND ARE HEREBY EXPRESSLY REJECTED. NO COURSE OF PRIOR DEALINGS BETWEEN THE PARTIES AND NO USAGE OF TRADE WILL BE RELEVANT TO DETERMINE THE MEANING OF THIS AGREEMENT, TRUFFIERE’S QUOTE OR ANY ORDER OR INVOICE, REGARDLESS OF FORM.
  1. Acceptance; Cancellation
    Purchaser agrees that Truffiere’s quotation is an offer to sell and Purchaser’s order is acceptance of such offer with respect to any Products or, with respect to Services, listed in Purchaser’s order or as set forth in a written Statement of Work (“SOW”). Orders and SOWs may be cancelled or terminated under the following conditions:
    1. Product: Purchaser may cancel any order for Product at no charge up to five (5) business days prior to scheduled shipment upon written notice to Truffiere, unless such Product has been modified or otherwise reconfigured in accordance with Purchaser’s specifications. If an order is cancelled prior to shipment, Purchaser’s sole remedy and Truffiere's sole obligation will be a refund of the purchase price paid for the applicable Product. Cancellation of orders following shipment must be made in accordance with the return policies of the manufacturer, publisher or supplier of the Product.
    2. Services: Either party may terminate the performance of a Service, SOW or order for Services for cause if the other party fails to remedy a material breach within thirty (30) days after receipt of written notice of such breach, except that it will only have ten (10) days to remedy any payment default. After Truffiere performs a Service or delivers a Deliverable to Client, if the Service or Deliverable does not meet the material requirements described in the SOW, then Client will provide Truffiere with a written explanation describing how the requirements were not met within 5 days following the date the Service or Deliverable was delivered to Client. If Client fails to provide the written explanation within this 5-day period, the Service and Deliverable will be deemed accepted by Client.  For the purpose of this Agreement, “Deliverables” means the items created by Truffiere in connection with the Services, as specifically described in the relevant SOW.
    3. Effect: Cancellation or termination shall not relieve Purchaser of Purchaser’s duty to pay for Products shipped, Services performed, or fees and expenses incurred by Truffiere prior to receiving required written notice.
  2. Accuracy of Data/Corrections
    Truffiere obtains certain data directly from the manufacturer, publisher or supplier of Products and is not responsible for pricing, typographical or other errors in any such data. Truffiere reserves the right to cancel orders related to such errors or Product discontinuation or unavailability, and to correct at any time, including pricing errors not detected until after Truffiere's confirmation or e-mail response.

  3. Pricing/Availability
    Prices are subject to change at any time prior to Truffiere's acceptance of Purchaser’s order. Prices are exclusive of all taxes, duties, shipping and handling charges. Availability of third party Product is subject to change without notice.

  4. Payment
    Payment terms are at Truffiere's sole discretion and all orders are subject to Truffiere's credit approval. Purchaser agrees to pay the total purchase price for Products, plus tax and shipping (to the extent shipping is not prepaid by Purchaser, including shipping charges billed to Truffiere as a result of using Purchaser’s carrier account number or a carrier selected by Purchaser).
    1. Invoicing/Payment: Product will be invoiced on the date of shipment. Services will be invoiced on the date performance is completed or as otherwise specified in any mutually agreed upon SOW. Purchaser must pay all undisputed invoices in full within 30 days of the invoice date. All payments must reference the invoice number. Unless otherwise specified, all invoices shall be paid in the currency of the invoice.
    2. Credit/Late Payment: Purchaser must provide appropriate credit references upon request and authorize us to obtain credit history from such references. Truffiere retains the right to decline to extend credit and to require that the applicable purchase price be paid prior to provision of Product or performance of Services based on changes in Truffiere's credit policies or Purchaser’s financial condition and/or payment record. Truffiere reserves the right to charge interest of 1.5% per month or the maximum allowable by applicable law, whichever is less, for any undisputed past due invoices. Purchaser is responsible for all costs of collection, including reasonable attorneys' fees, for any payment default on undisputed invoices. Truffiere may terminate or suspend deliveries or all further work if payment is not received in a timely manner.
    3. Taxes: Federal, state and local sales, use and excise taxes and all similar taxes and duties (excluding taxes based on Truffiere's income, assets or net worth) are solely Purchaser’s responsibility. Purchaser may provide Truffiere a tax exemption certificate, which will be subject to review and acceptance by Truffiere.

  5. Delivery/Title/Risk of Loss
    Truffiere will use commercially reasonable efforts to meet requested delivery times but does not guarantee delivery by a stated time and is not responsible for any damages due to delays or the failure to meet a stated delivery schedule.  Truffiere reserves the right to make deliveries in installments. Delay in delivery of one installment will not entitle Purchaser to cancel other installments. Product will be delivered to you FOB Destination (your designated facility), freight prepaid and added. Title and risk of loss shall pass to you when Product is delivered to your designated facility. Notwithstanding anything to the contrary in this paragraph, title to software Product remains with the applicable licensor(s), and software delivery occurs when it is first made available by the licensor or Truffiere for your use. Purchaser grants a security interest in all Products purchased under this Agreement to secure payment in full. Additionally, Purchaser authorizes Truffiere to execute and file a financing statement or other documents that are necessary to perfect Truffiere's security interest. Truffiere's security interest shall terminate when Truffiere has received all amounts due for the Product(s).

  6. Warranty Disclaimer
    TO THE EXTENT PERMITTED BY LAW, THE EXPRESS WARRANTIES IN SECTION 7 (LIMITED WARRANTIES) ARE IN LIEU OF, AND TRUFFIERE EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES IN RELATION TO THE PRODUCTS AND SERVICES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, SATISFACTORY QUALITY, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE WARRANTY PERIOD. You also waive any claims that you may have against Truffiere based on any product liability or infringement or alleged infringement of any patent, copyright, trade secret or other intellectual property rights ("Claims") with respect to any Product and also waive any right to indemnification from Truffiere against any such Claims made against you by a third party. You acknowledge that no employee of Truffiere is authorized to make any representation or warranty on behalf of Truffiere that is not in this Agreement.

  7. Limited Warranties
    1. Product: Products manufactured, published or provided by third parties, including third-party performed services, are provided by Truffiere on an "as is" basis without warranty by Truffiere of any kind, either express or implied. Products coded as “IVC” (Truffiere Value Center), “-REF” (refurbished) or “-Open” (previously opened and/or the box has been damaged) in the Product description are offered “AS IS” and are not being sold as “new”. The manufacturer's or publisher's warranty, if any, will apply and provide the sole coverage for all Products. Truffiere shall pass through to Purchaser, to the extent available, any manufacturer's/publisher's/supplier's written warranties associated with Products purchased from Truffiere.
    2. Services: Services performed by Truffiere will: (i) be performed in a professional and workmanlike manner; (ii) substantially conform to the written specifications under the service description for thirty (30) days from completion, or for such other warranty period as may be indicated under the relevant sow or order; (iii) be in compliance with all laws, rules and regulations applicable to Truffiere's performance of the Services under the sow or order. The following are Purchaser’s sole and exclusive remedies and entire liability with respect to this warranty: (i) upon written notice from Purchaser, Truffiere will use commercially reasonable efforts to reperform Services not in substantial compliance with this warranty; or (ii) if Truffiere cannot repair the non-conforming Services within thirty (30) days of receiving written notice from Purchaser, or such additional time as may be agreed upon by the parties, Truffiere will, at its option, provide a credit or refund of any fees paid by Purchaser for the portion of the Services not in substantial compliance with this warranty. Re-performance will not extend the warranty period. All credits issued to Purchaser by Truffiere must be used within two years from the date of issue. Unused credits will automatically expire.

  8. Client Work Product
    All results of the Services described in and delivered pursuant to this Agreement, including Deliverables, and Client’s proprietary information contained therein, authored or created by Truffiere specifically for Client as a Work Made for Hire, excluding any Truffiere IP incorporated therein ("Work Product"), will be and remain the property of Client. Truffiere retains all right, title and interest in, without limitation, any intellectual property rights in works of authorship, know-how, or any invention, device, process, method, development, design, specifications, technique, apparatus, reports, schematic or technical information (whether patentable or not), documentation, software or enhancements, improvements, alterations, interfaces, workflows, and best practices developed, invented, created or reduced to practice by Truffiere and used for the Services, including any derivatives or modifications (“Truffiere IP”). To the extent Work Product includes any works of authorship that are Truffiere IP, Truffiere grants Client a nonexclusive and non-transferable license to use each such portion of the Work Product for its internal business purposes, provided that no Truffiere IP may be unbundled or separated from the Work Product or used on a stand-alone basis.

  9. Limitations on Use
    You agree and represent that you are buying Product for your own internal use and not for resale. If Product purchased under this Agreement is intended for export, it may be subject to export regulations. You accept full responsibility for and agree to comply fully with all export regulations, including obtaining export licenses. The export of Products may also alter or void the manufacturer's or publisher's warranty.  PRODUCTS OFFERED BY TRUFFIERE ARE NOT DESIGNED FOR USE IN LIFE SUPPORT, LIFE SUSTAINING, NUCLEAR SYSTEMS OR OTHER APPLICATIONS IN WHICH FAILURE OF SUCH PRODUCTS COULD REASONABLY BE EXPECTED TO RESULT IN PERSONAL INJURY, LOSS OF LIFE OR CATASTROPHIC PROPERTY DAMAGE. USE IN ANY SUCH APPLICATIONS IS AT YOUR SOLE RISK.

  10. Limitation of Liability
    TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH HEREIN, IN NO EVENT WILL TRUFFIERE BE LIABLE TO PURCHASER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF INCOME, PROFITS, DATA, OPERATIONAL EFFICIENCY, USE OR INFORMATION) ARISING UNDER THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION OR THEORY OF RELIEF, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

    THE TOTAL AMOUNT OF DIRECT DAMAGES RECOVERABLE FROM A PARTY UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR THEORY OF RELIEF, IS LIMITED TO THE TOTAL AMOUNT PAID OR TO BE PAID BY PURCHASER FOR THE PRODUCT PURCHASED UNDER THIS AGREEMENT GIVING RISE TO THE CLAIM, OR THE TOTAL AMOUNT PAID OR TO BE PAID BY PURCHASER FOR SERVICES PERFORMED UNDER THIS AGREEMENT GIVING RISE TO THE CLAIM, WHICHEVER THE CASE MAY BE.

    NO ACTION ARISING OUT OF THE TRANSACTIONS UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE YEA AFTER THE DAMAGE, LOSS OR EXPENSE OCCURRED.

  11. Notices
    Any notice provided under this Agreement must be in writing and is considered received: (a) when personally delivered; (b) 1 business day after having been sent by overnight courier; or (c) after 5 business days if mailed first class postage prepaid. All business communication will be sent to the addresses indicated on Purchaser’s order or as either party designates in writing to the other. Legal notices must be sent with a copy for Truffiere addressed to: Truffiere LLC, 16192 Coastal Highway, Lewes, DE 19958, Attn: Legal Department.

  12. Governing Law
    THIS AGREEMENT AND ALL ORDERS SHALL BE GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW RULES. ANY ARBITRATION, ENFORCEMENT OF AN ARBITRATION OR LITIGATION WILL BE BROUGHT EXCLUSIVELY IN SUSSEX COUNTY, DELAWARE, AND PURCHASER CONSENTS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION THEREOF AND WAIVES THE RIGHT TO CHANGE VENUE. PURCHASER FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the order. Both parties are solely obligated to address and resolve all disputes associated with this Agreement or any order, including any damages or injuries to Purchaser’s affiliates, and all claims related to this Agreement or any order will be brought by purchaser in Sussex County, Delaware as provided in this Agreement.

  13. Arbitration
    Any claim, dispute, or controversy (whether in contract, tort or otherwise, whether preexisting, present or future, and including, but not limited to, statutory, common law, intentional tort and equitable claims capable in law of being submitted to binding arbitration) arising from or relating to the Products or Services, the interpretation or application of this Agreement or any order or the breach, termination or validity thereof, the relationships which result from this Agreement or any order (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories hereto), or Truffiere’s or any of its affiliates' advertising or marketing WILL BE RESOLVED BY FINAL CONFIDENTIAL AND BINDING ARBITRATION IN MARICOPA COUNTY, ARIZONA, INSTEAD OF IN COURT, except that (a) Purchaser may take claims to small claims court, if Purchaser qualifies for hearing by such court, and (b) if Purchaser fails to timely pay amounts due, Truffiere may assign Purchaser’s account for collection and the collection agency may pursue such claims in court limited strictly to the collection of the past due debt and any interest or cost of collection permissible under applicable law or this Agreement. Arbitration under this Agreement shall be conducted under the rules then prevailing of the American Arbitration Association.  The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. THE RULES GOVERNING ARBITRATION ARE DIFFERENT THAN THOSE IN COURT. ARBITRATION DOES NOT INVOLVE A JUDGE OR JURY AND REVIEW IS LIMITED, BUT AN ARBITRATOR CAN AWARD THE SAME DAMAGES AS A COURT. EXCEPT AS MAY OTHERWISE BE PROVIDED IN THE AMERICAN ARBITRATION ASSOCIATION RULES OR AS OTHERWISE REQUIRED UNDER APPLICABLE LAW, PURCHASER UNDERSTANDS THAT BY INITIATING THIS ARBITRATION PARAGRAPH PURCHASER IS GIVING UP PURCHASER’S RIGHT TO A TRIAL IN COURT OR ADMINISTRATIVE PROCEEDING, EITHER WITH OR WITHOUT A JURY, AS A MEANS BY WHICH TO SETTLE PURCHASER’S DISPUTE. Notwithstanding any choice of law provision included in this Agreement, this arbitration agreement is subject to the Federal Arbitration Act (9 U.S.C. §§ 1-16).
  14. Assignment
    Purchaser may not assign any of Purchaser’s rights or delegate any of Purchaser’s obligations under the Agreement without our prior written consent. Truffiere may assign or subcontract any or all of its rights or obligations and/or assign the right to receive payments hereunder to one or more qualified parties without Purchaser’s prior consent, unless otherwise agreed to by the parties in writing. Subject to the restrictions in assignment contained in this provision, the Agreement, including any SOW, will be binding on and inure to the benefit of the parties and their successors and assigns.

  15. Force Majeure
    Truffiere shall not be liable to Purchaser for any delay or failure by Truffiere to fulfill its obligations under this Agreement or otherwise if such delay or failure arises from any cause or causes beyond the reasonable control of Truffiere, including, but not limited to labor disputes, strikes or other labor disturbances, acts of nature, foods, lightning, shortages of materials, rationing, utility or communication failures, earthquakes, terrorism, casualty war, embargoes, blockages, actions, restrictions, or regulations or orders of any government agency or subdivision thereof.

  16. Non-Solicitation
    Both parties agree, that during the term of this Agreement and for a one-year period after the termination or expiration of this Agreement, neither party will, directly or indirectly, solicit, offer employment or hire any current or former employee, contractor or consultant of the other party who has directly involved in the performance of this Agreement or any related SOW. This provision does not restrict the right of either party to solicit or recruit generally in the media and does not prohibit either party from hiring an employee of the other who answers any advertisement or who voluntarily applies for hire without having been initially personally solicited or recruited by the hiring party.
  17. General
    If any provision of this Agreement is invalid, illegal or unenforceable, it will be regarded as severed from this Agreement and not affect the validity or enforceability of the remaining provisions of this Agreement. A delay or failure to exercise or partially exercise any right under the Agreement does not operate as a waiver, nor will it preclude future exercise of that right or permit, or sanction any subsequent breach of any term or condition. The provisions of this Agreement, which by sense and content are intended to survive, will survive the expiration or termination of the Agreement. The relationship between the parties is that of independent contractors and not that of employer/employee, partnership or joint venture. Electronic signatures (or copies of signatures sent via electronic means) are the equivalent of written and signed documents.

  18. Entire Agreement
    This Agreement supersedes any prior representations or agreements, oral or written, and all other communications between the parties relating to Purchaser’s order. Any conflicting additional or different Agreement contained in any other agreement, invoice or SOW, as the case may be, are expressly rejected. In the event of a conflict between this Agreement and a SOW, the SOW will govern with respect to such conflicting, additional or different terms.

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