Customer orders for Product shall not constitute a binding agreement until accepted by Provider in writing or by electronic confirmation. Provider shall have no obligation to provide a quotation or accept any order. Any terms in any Customer purchase order or other documentation provided by Customer that conflict with or purport to modify or add to the terms of this Agreement are and shall be null and void.
Each Party may share Confidential Information, which must be kept confidential and used only for fulfilling the Agreement. Each Party shall maintain the Confidential Information of the other Party in strict confidence and limit disclosure to its employees, subcontractors, consultants and representatives and those of its affiliates who have a need to know such information to perform its obligations under this Agreement and not for the benefit of any third party. Each Party's obligations to protect the Confidential Information of the other Party will survive for 2 years after the termination or expiry of this Agreement. The foregoing is in addition to, and is not intended to replace or supersede, the terms of any confidentiality or non-disclosure agreement separately entered into between Provider and Customer.
Customer shall pay Provider the applicable purchase price set forth in the Agreement (the "Purchase Price"). Unless otherwise indicated, the Purchase Price is exclusive of taxes, levies, duties, governmental charges and expenses, which amounts (not including Provider's income taxes) will be billed to and paid by Customer. Except as otherwise specified in the Agreement, the Purchase Price (and any additional charges) must be paid in full by Customer prior to shipment. Payments must be made by Automated Clearing House (ACH) transfers, Electronic Funds Transfer (EFT) wires, or cheque. Provider may, in its sole discretion, accept payments by credit card provided Customer pays the applicable transaction fee. Provider reserves the right to modify the payment methods it accepts and may impose additional fees, during the term of this Agreement, upon reasonable notice to Customer in writing. If Customer fails to make a payment to Provider when due, all outstanding amounts owing to Provider will become immediately due and payable without notice or demand. All past due amounts owing shall accrue interest from the date due until paid in full at an annual rate equal to the lesser of (i) eighteen (18%) percent per annum or (ii) the highest rate then permitted by law, in each case compounded on a daily basis. At any time, Provider may require reasonable assurances of Customer's creditworthiness. If such assurances are unsatisfactory, Provider may modify payment terms, withdraw or limit Customer's credit, limit or cease providing Product, notwithstanding any contrary provision in the Agreement. Any remedies set out herein shall be in addition to other remedies available to the Provider under this Agreement or by law. Customer may not set-off any amounts due to Provider against any amount due to Customer by Provider. Customer hereby grants Provider a purchase money security interest in the Products until the Provider is fully paid. Customer will assist Provider in taking actions to perfect and protect Provider's security interest. Customer will reimburse Provider for all costs, expenses and fees, including reasonable legal fees and professional collection services fees, in incurs in connection with the collection of any amounts due under this Agreement.
Provider shall not be liable for loss or damage to Products once shipped, and any claims for damages or loss in transit must be made by Customer to the carrier or other responsible third party. Solely as a convenience to, and at the direction of, Customer, and in Provider's sole discretion, Provider may arrange shipping/freight, insurance, customs, broker, or other services in connection with the shipment of Products, and shall pass those charges through to Customer. Such arrangements by Provider shall in no way affect timing of transfer of title or risk of loss.
Except as expressly permitted in the Agreement, Provider shall not accept or permit cancellation of orders or the return of Product. Notwithstanding the foregoing, Provider will accept a return of Product and will provide the Customer with a replacement, refund or credit, as determined by Provider, if Provider (i) ships to the Customer Product that was not ordered by the Customer under this Agreement, or (ii) inadvertently or erroneously ships a different quantity of Product than the Customer ordered under this Agreement. The sole remedy for Product which does not meet the limited warranty set forth in Section 9 shall be as set forth in Section 9.
Provider warrants that Product delivered to Customer hereunder (i) shall be consistent with the Product description and specifications for such Product that Provider may supply to Customer from time to time, as in effect at the time of shipment, and (ii) shall be free from defects in materials and workmanship for such Product's stated shelf life (the "Warranty Period"). THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR OBLIGATIONS, EXPRESS OR IMPLIED. PROVIDER EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. EXCEPT AS EXPRESSLY SET FORTH IN THIS PARAGRAPH, ALL PRODUCTS PROVIDED BY PROVIDER AND ITS EMPLOYEES AND AGENTS ARE PROVIDED “AS IS" AND “WHERE IS". THE PROVIDER IS NOT RESPONSIBLE FOR THE RESULTS ACHIEVED BY CUSTOMER USING THE PRODUCT. During the Warranty Period, Provider shall replace or, at Provider's option, refund the Price or credit (against the Price of future purchases of Product) the Price of any Product that does not comply with the warranty set forth in this Section 9. At Provider's request and expense, Customer shall return any Product to be replaced under this Section 9 or for which the Price is to be refunded or credited. THE FOREGOING SHALL CONSTITUTE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE FOREGOING WARRANTIES. Provider's obligation to replace defective Product or refund or credit the Price pursuant to this Section 9 shall not apply to any Product that has been subjected to misuse, mishandling, storage in a manner inconsistent with Product labeling, neglect, modification, or unusual physical or chemical stress after delivery to the shipper.
IN NO EVENT SHALL PROVIDER BE LIABLE UNDER THIS AGREEMENT TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, STATUTORY, EXEMPLARY, SPECIAL, CONSEQUENTIAL, OR LIQUIDATED DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOODWILL OR REPUTATION, WHETHER BASED UPON WARRANTY, CONTRACT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER CAUSE OF ACTION ARISING IN CONNECTION WITH THE PRODUCTS OR THIS AGREEMENT, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. PROVIDER’S LIABILITY SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE PRODUCT(S) HAVING GIVEN RISE TO SUCH LIABILITY. THIS SECTION SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THE AGREEMENT.
