1. PRODUCT AND SALE TERMS.
The buyer (“Buyer”) agrees to purchase, and JDRF Electromag Engineering Inc. (“JDRF”) agree to sell products ("Product(s)") under the terms and conditions contained in this Standard Terms and Conditions of Sale (these “Terms and Conditions”). Buyer acknowledges to have read and understood these Terms and Conditions, which shall prevail over and apply to the exclusion of any terms and conditions contained or referred to in Buyer’s purchase order or in correspondence or elsewhere or implied by trade custom, practice or course of dealing. Unless there is a separate executed written agreement for the Products between Buyer and JDRF in effect at the time of the order, all purchase orders received by JDRF from Buyer shall be governed only by these Terms and Conditions notwithstanding any preprinted terms and conditions on Buyer's purchase order or any other communication or document of Buyer. Any additional or different terms in Buyer’s documents are hereby deemed to be material alterations and notice of objection to and rejection of them is hereby given. Buyer accepts these Terms and Conditions by accepting delivery of the Product(s) whether or not these Terms and Conditions are provided with each sales transaction.
2. DELIVERY, TITLE, AND RISK OF LOSS.
Unless otherwise agreed to in writing by JDRF, Product(s) shall be delivered FCA, Mackie Markham, 4175 14th Avenue, UNIT 3, Dock # 8, Markham, ON L3R 5R5 Canada, in accordance with INCOTERMS 2022. Title to and risk of loss of the Products shall pass to Buyer when made available to Buyer for transport at Mackie Markham, 4175 14th Avenue, UNIT 3, Dock # 8, Markham, ON L3R 5R5 Canada. JDRF will use commercially reasonable efforts to fill all orders according to the schedule mutually agreed to by the Buyer and JDRF. However, delivery dates are approximate only and Buyer shall have no remedy, and JDRF shall not be liable, for delays in delivery for any reason. Deliveries may be made in installments and a delay or default in delivery of any installment shall not relieve Buyer of the obligation to accept and pay for other deliveries. Delays or changes in schedules due to Buyer directed actions are subject to price adjustments. Claims for shipment shortage shall be deemed waived unless presented to JDRF in writing within five (5) days of delivery. In the event Buyer contests that the Product(s) were delivered, Buyer must request a proof of delivery from JDRF within thirty (30) days of the date of JDRF’s invoice, otherwise delivery shall be deemed completed. Buyer shall give JDRF written notice of failure to deliver and thirty (30) days within which to cure. If JDRF does not cure within thirty (30) days, Buyer’s sole and exclusive remedy is to cancel the affected and undelivered portions of the order. Notwithstanding anything in these Terms and Conditions to the contrary, JDRF may not have sufficient supplies of one or more Product(s) from its then-contemplated sources of supply to meet the full requirements of its customers. If that situation exists from time to time, JDRF may, at is option, allocate shipments of such Product(s) among JDRF’s customers on any basis which in JDRF’s sole opinion is equitable and to adjust delivery schedules accordingly. JDRF is not required to increase future shipments or compensate Buyer for any such reduction. Product(s) must be scheduled for delivery within twelve (12) months of date of Buyer’s purchase order. If the customer has not provided an order delivery date and the order has exceeded twelve (12) months from order acceptance date, the order will be considered cancelled and follow the CANCELLATION terms as stated in Paragraph 7.
3. PRICES, QUOTATIONS AND TAXES.
Except as otherwise agreed by the parties in a written pricing agreement, prices quoted by JDRF are those prices current at the date of quotation and may be changed in JDRF’s sole discretion prior to the acceptance of a purchase order. Any purchase order that can be cancelled or rescheduled by either party under Paragraphs 7 or 8 below, is subject to an immediate price change, unless otherwise agreed in separate, written agreement at JDRF’s sole discretion. Prices are in Canadian dollars and the Buyer agrees to pay all applicable taxes and duties. Pricing valid for 60 days from the date of quotation for quoted part numbers and quantities. Any changes in quantity or part numbers will null and void this quotation. JDRF may change pricing at its sole discretion, on order placed.
4. PAYMENT TERMS.
All payments are net Canadian Dollars exclusive of sales tax; pro rata payment shall become due as each shipment is made. Except as otherwise agreed to between the parties in writing, payment will be due thirty (30) days from the date of invoice. All invoices will be sent at time of shipment and shall be paid without retention or set-off by Buyer. If Buyer does not make payment on time, JDRF may charge Buyer interest on the unpaid amount at the rate of five percent (5%) until payment is made. JDRF reserves the right at any time to revoke any credit extended to Buyer because of Buyer’s failure to pay an invoice when due or for any other similar reason and to suspend any subsequent shipments until Buyer’s account is current.
a. JDRF warrants that its Product(s) will, for the time period set forth below, be free from defects in material and workmanship and will conform to JDRF’s approved specifications.
b. Except as provided below, Product(s) are warranted for a period of five (5) years from the date of delivery.
c. If any Product fails to conform to the applicable warranty, JDRF will, at JDRF’s option, replace or repair such Product or credit Buyer’s account with an amount equal to and only the price paid for any such Product returned by Buyer, provided that:
i. Buyer promptly notifies JDRF in writing, during the warranty period, that such Product failed to conform and furnishes a detailed explanation of any alleged deficiency.
ii. Buyer promptly obtains a return material authorization number and promptly returns the Product to the location designated by JDRF at Buyer’s expense (provided, however, that if upon examination by JDRF, JDRF determines that the Product is entitled to this warranty, then JDRF shall be responsible for reasonable transportation costs to and from JDRF’s facility). iii. JDRF is reasonably satisfied that claimed non-conformities exist and such claim complies with the terms of this warranty. JDRF shall have a reasonable time period to replace or repair Products or to credit Buyer’s account. These constitute Buyer’s sole remedies in the event of a breach of warranty. Replaced Product(s) are subject to the applicable warranty for the longer of the period remaining (if any) in the warranty period of the original Product or thirty (30) days. The non-conforming Product(s) shall become JDRF’s property as soon as they have been replaced or when a credit is issued. In no event, however, shall JDRF be responsible for any non-conformance in the Product(s) to the extent such non-conformance is caused by incompatibility with other components used by Buyer, improper handling, or storage during or after shipment, Product misuse, neglect, improper installation or operation, repair, alteration, accident, or for any other cause not attributable to defective workmanship or failure to meet said specification. This warranty shall not be expanded, and no obligation or liability will arise, due to technical advice or assistance, computerized data, facilities, or services JDRF may provide in connection with Buyer's purchase. JDRF provides no warranty for JDRF Product(s) purchased through unauthorized sales channels. If any one or more of the foregoing conditions is not satisfied, JDRF shall have no liability under this warranty whatsoever.
d. THIS WARRANTY EXTENDS TO BUYER ONLY AND MAY BE INVOKED ONLY BY BUYER FOR ITS CUSTOMERS. JDRF WILL NOT ACCEPT WARRANTY RETURNS FROM BUYER’S CUSTOMERS OR USERS OF BUYER’S PRODUCT(S). THIS WARRANTY DOES NOT APPLY TO DEFECTS ARISING AS A RESULT OF BUYER’S DESIGNS OR FORMULAS.
e. THE WARRANTY AND REMEDIES SET FORTH ABOVE CONSTITUTE JDRF’S EXCLUSIVE LIABILITY, AND BUYER’S EXCLUSIVE REMEDIES, FOR ANY BREACH OF WARRANTY OR NON-CONFORMITY OF THE PRODUCT(S). THE WARRANTY SET FORTH ABOVE IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, WHICH ARE HEREBY EXPRESSLY DISCLAIMED. JDRF SHALL MAKE THE FINAL DETERMINATION AS TO ANY BREACH OF WARRANTY OR NON-CONFORMITY OF THE PRODUCT(S).
6. CONFIDENTIAL INFORMATION.
All materials and Product(s) furnished by JDRF and identified as containing confidential information must be held in confidence by the recipient using at least the degree of care the recipient uses for its own confidential information, but no less than reasonable care. Except as required by law, the recipient may not disclose such materials or confidential information except to its own employees who require use of the materials in the performance of their duties and who are bound by a duty of confidentiality under terms no less restrictive than contained herein concerning the use of confidential information. Any non-public samples or prototypes, or any source code provided by JDRF shall constitute confidential information, whether so identified.
Buyer may cancel purchase orders for standard JDRF products by providing written notice to JDRF at least ten (10) days prior to JDRF’s shipment date. All order cancellations by the Buyer will be subject to a cancellation fee of 25% of the order price. JDRF reserves the right to cancel all or any part of a purchase order without any liability to Buyer if Buyer supplies inaccurate information or if Buyer is in default under any of these Terms and Conditions. JDRF may also cancel any purchase order without any liability to Buyer that can be cancelled by Buyer under this Paragraph upon written notice to Buyer. Custom JDRF products are non-cancellable and non-returnable.
8. PRODUCT RETURNS.
If Buyer returns a product within 90 days of receipt that was ordered in error, but is still in resalable condition, JDRF will charge a 25% restocking fee by issuing a revised invoice to the Buyer. Restocking fees will be applied by occurrence.
Buyer may reschedule Product shipments for purchase orders placed in accordance with these Terms and Conditions subject to the following restrictions: (i) for each shipment, only one (1) reschedule is allowed; and (ii) the rescheduled ship date must fall within 30 days of the original ship date. Buyer must provide written notice to JDRF at least thirty (30) days prior to the scheduled ship date. At JDRF’s sole discretion, JDRF may reschedule any shipment that can be rescheduled by Buyer under this Paragraph 9 upon written notice to Buyer. If purchaser delays shipment, date of notice of readiness for shipment shall be deemed to be date of shipment for payment purposes.
10. LIMITATION OF LIABILITY.
SUBJECT TO THE REMEDIES IN PARAGRAPH 5(C), TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF THE NUMBER OF CLAIMS IN ANY CALENDAR YEAR, IN NO EVENT SHALL JDRF BE LIABLE TO BUYER OR ANY THIRD PARTY FOR AN AMOUNT EXCEEDING THE LESSER OF:
a. THIRTY PERCENT (30%) OF THE TOTAL AMOUNTS PAID BY BUYER TO JDRF FOR THE SPECIFIC PRODUCT(S) GIVING RISE TO THE LIABILITY
b. THIRTY PERCENT (30%) OF THE TOTAL AMOUNTS PAID BY BUYER TO JDRF FOR ALL PRODUCT(S) AND SERVICES PROVIDED BY JDRF IN THE CALENDAR YEAR THAT THE EVENT GIVING RISE TO THE LIABILITY OCCURRED. BUYER MAY NOT BRING AN ACTION IN CONNECTION WITH THESE TERMS AND CONDITIONS UNLESS SUCH ACTION IS COMMENCED WITHIN ONE (1) YEAR AFTER THE EVENT GIVING RISE TO THE LIABILITY. IN NO EVENT SHALL JDRF BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING BUT NOT LIMITED TO, THE LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE, LOSS OF GOODWILL, DATA LOSS, REWORK, REPAIR, MANUFACTURING EXPENSES, COSTS OF PRODUCT RECALL, LOSS OF REPUTATION OR LOSS OF CUSTOMERS, REGARDLESS OF WHETHER JDRF HAS BEEN GIVEN NOTICE OF SUCH DAMAGES AND REGARDLESS OF WHETHER THOSE DAMAGES ARE SOUGHT UNDER CONTRACT, TORT OR ANY OTHER THEORIES OF LAW.
11. BUYER’S APPLICATIONS.
Buyer is solely responsible for the design, validation and testing of its applications and for complying with all legal and regulatory requirements related to its applications. Industry best practice generally requires that Buyer conduct qualification and other tests on its applications taking into account environmental and other conditions that the application may encounter. Buyer understands and represents that, with respect to its applications, it has the necessary expertise to create and implement safeguards that: (i) anticipate consequences of failures; (ii) monitor failures and their consequences; and (iii) lessen the likelihood that failures create harm and to take appropriate remedial steps. Buyer agrees that prior to using or distributing any applications using JDRF Products, Buyer will thoroughly test such systems and the functionality of such Products as used in such systems. Where JDRF promotes certain Products as facilitating functional safety or complying with industry functional safety standards or requirements, such products are intended to assist buyers in designing and creating their own applications meeting designated function safety standards and requirements. Using one or more JDRF Products in an application does not itself establish any safety features in the application. Buyer is solely responsible for and must ensure compliance with any safety requirements and standards applicable to its applications. Buyer will indemnify, defend, and hold JDRF harmless from and against any and all damages, costs (including attorneys' fees and costs), fees and liabilities arising out of or resulting from Buyer’s noncompliance with this Subparagraph. JDRF Products are to be used with D4i compliant LED drivers in accordance with specifications described in the product datasheet, application guide and technical instructions provided on www.jdrfelectromag.com
12. COUNTRY OF ORIGIN.
Vietnam unless otherwise stated.
Buyer agrees to indemnify, defend and hold harmless JDRF, its directors, officers, employees, representatives, agents, subsidiaries, affiliates, distributors and assigns, against any and all liabilities, losses, costs (including attorneys' fees and costs), damages, judgments and expenses, arising out of or resulting from any claim, demand, investigation, lawsuit, regulatory action or cause of action arising out of or associated with any unauthorized use, even if such claim alleges that JDRF was negligent in the design or manufacture of the Product(s).
14. FORCE MAJEURE. In no event shall JDRF be liable for any failure in performance of its obligations arising out of or caused by, directly or indirectly, forces beyond its control.