Terms and Conditions
SURGE ARREST CANADA INC. Terms and Privacy Policy
By accessing the website site of SURGE ARREST CANADA INC. (collectively “SURGE
ARREST CANADA INC.” or “Seller”) or alternatively indicating acceptance as set forth
below, you are agreeing to the following terms and conditions (as modified from time to
time), and each time that you access SURGE ARREST CANADA INC. you reassert your
agreement. You should not access or use surgearrest.ca or any other SURGE ARREST
CANADA INC. web sites if you do not agree with these terms and conditions.
1. Terms and Conditions of Sale
All sales of products and finished goods offered and supplied by Seller to its customer
(“Buyer”) for resale (“Products”) shall be pursuant to the following standard terms and
conditions. Any conflicting terms in your purchase order or elsewhere are without effect
unless signed by the applicable party(ies). All Buyer purchases from SURGE ARREST
CANADA INC. are deemed to be purchases pursuant to a written agreement.
i. ACCEPTANCE: Buyer’s acceptance of these Terms and Conditions shall be indicated by
any of the following, whichever first occurs: (a) Buyer’s written acknowledgement hereof, (b)
Buyer’s submission of an order to SURGE ARREST CANADA INC., regardless of whether
the Product(s) ordered is ever delivered or if the purchase order is completely or partially
fulfilled, rejected, modified or cancelled; (c) Buyer’s receipt of any part of the items specified
for delivery in any purchase order submitted to SURGE ARREST CANADA INC., (c)
Buyer’s application for credit submitted to SURGE ARREST CANADA INC., (d) accessing
any SURGE ARREST CANADA INC. e-commerce web site, or (e) any other act or
expression of acceptance by Buyer. Buyer’s acceptance is expressly limited to the Terms
and Conditions in their entirety without addition, modification or exception and any term,
condition, or proposal hereafter submitted by Buyer (whether oral or in writing), which is
inconsistent with or in addition to the Terms and Conditions set forth hereon is objected to
and is hereby rejected by Seller. Seller’s silence or failure to respond to any such
subsequent term, condition or proposal shall not be deemed to be Seller’s acceptance or
approval thereof.
ii. ORDERS: SURGE ARREST CANADA INC. reserves the right to schedule and
reschedule any order, with notice to Buyer, at SURGE ARREST CANADA INC.’s
reasonable discretion, and to decline any order for any reason, or no reason, in SURGE
ARREST CANADA INC.’s sole discretion.
iii. DELIVERY: Delivery shall be made in accordance with Seller’s shipping policy in effect
on the date of shipment. Product title and risk of loss will transfer to Buyer upon SURGE
ARREST CANADA INC. tendering the Product for delivery to the carrier (F.O.B. Origin). If
Buyer requests special shipping or handling, including expedited shipment, third-party
billing, or freight collect, Buyer shall be responsible filing claims with the carrier and all
freight and handling costs. Buyer shall pay for any special routing, packing, handling or
insurance requested by Buyer and agreed to by SURGE ARREST CANADA INC. Orders
shipped under special routing instructions must be separately agreed upon and may be
subject to additional charges. SURGE ARREST CANADA INC. will not be subject to
requirements of non-compliance programs of Buyer, including charges for product delays,
missing/inaccurate shipping documents, labeling or product markings.
Buyer shall promptly notify Seller, no later than 30 days from invoice date, of any claimed
shortages or rejection as to any delivery, with the exception of deliveries that reveal external
shipping damage, which, in some instances, must be refused immediately upon delivery by
the carrier. Such notice shall be in writing and shall be reasonably detailed stating the
grounds for any such rejection. Failure to provide any such notice within such time shall be
deemed an acceptance in full of any such delivery. Seller shall not be liable for any
shipment delays that affect Seller or any of Seller’s suppliers, including but not limited to
delays caused by unavailability or shortages of Products from Seller’s suppliers, natural
disasters, acts of war or terrorism, acts or omissions of Buyer, fire, strike, riot, or
governmental interference, unavailability or shortage of materials, labor, fuel or power
through normal commercial channels at customary and reasonable rates, failure or
destruction of plant or equipment arising from any cause whatsoever, or transportation
failures.
iv. PRICES: Prices payable by Buyer for the Products are specified on the invoice. Seller
does not offer price protection. Buyer shall bear all applicable federal, state, provincial,
municipal and other government taxes (such as sales, use and similar taxes), as well as
import or customs duties, license fees and similar charges, however designated, levied on
this sale or the Products (or the delivery thereof) or measured by the purchase price
hereunder. Seller’s prices do not include such taxes, fees and charges. Exemption
certificates must be presented prior to shipment if they are to be honored. To the extent any
sale is made without the prior receipt of a valid exemption certificate, Seller expressly
reserves the right to include on the invoice for such sale, or to separately invoice Buyer for
all applicable taxes, fees and charges and Buyer agrees that these amounts shall be
immediately due and payable.
v. PAYMENT TERMS: Buyer shall provide all financial information reasonably requested by
SURGE ARREST CANADA INC. from time to time for the purpose of establishing or
continuing Buyer’s credit limit. Buyer agrees that SURGE ARREST CANADA INC. shall
have the right to decline or extend credit to Buyer and to require that the applicable
purchase price be paid prior to shipment. SURGE ARREST CANADA INC. shall have the
right from time to time, without notice, to change or revoke Buyer’s credit limit on the basis
of changes in SURGE ARREST CANADA INC.’s credit policies or Buyer’s financial
condition and/or payment record.Buyer shall not deduct any amounts from any SURGE ARREST CANADA INC. invoice
without SURGE ARREST CANADA INC.’s express written approval, which approval shall
be contingent upon Buyer providing all supporting documentation for such deduction as
required by SURGE ARREST CANADA INC. Any authorized deductions for returned
Products must include Buyer’s customer tracking number and SURGE ARREST CANADA
INC.’s Return Credit Note number. Deductions received by SURGE ARREST CANADA
INC. without advance notice will be denied. No Program fees may be deducted from
invoices.
If Buyer fails to make timely payment of any amount invoiced by SURGE ARREST
CANADA INC., SURGE ARREST CANADA INC. shall have the right, in addition to any and
all other rights and remedies available to SURGE ARREST CANADA INC. at law or in
equity, to immediately revoke any or all credit extended, to delay or cancel future deliveries
and/or to reduce or cancel any or all quantity discounts extended to Buyer. Buyer shall pay
all costs of collection including reasonable attorneys’ fees. A service charge of the greater
of one and one-half percent (1 ½%) per month or the maximum amount allowed by law will
be charged on all past due balances commencing on the date payment is due.
vi. PRODUCT RETURNS: Return of Products purchased from SURGE ARREST CANADA
INC. shall be governed by Seller’s product return policies in effect on the date of return.
Seller reserves the right to modify or eliminate such policies at any time. Although Seller’s
policies may permit Buyer to return Products claimed to be defective under certain
circumstances, Seller makes no representations or warranties of any kind with respect to
the Products.
vii. WARRANTIES; INDEMNITY: Buyer acknowledges that SURGE ARREST CANADA
INC. is not the manufacturer of the Products that will be sold to it, and that SURGE
ARREST CANADA INC. therefore will have no responsibility for, among other things,
product warranties. Product warranties, if any, are provided by the manufacturer or
publisher of the Products. SURGE ARREST CANADA INC.’s sole obligation (and Buyer’s
sole remedy) in the event of breach of any warranty shall be to assist the Buyer in its efforts
to have the manufacturer repair or replace defective Product(s).
This warranty is in lieu of all other warranties whether statutory, express or implied,
including but not limited to, implied warranties of merchantability, fitness for particular
purpose and non-infringement and for all other obligations or liabilities on SURGE ARREST
CANADA INC.’s part.
SURGE ARREST CANADA INC. Neither assumes, nor authorizes any other person to
assume for SURGE ARREST CANADA INC., any other liability in connection with the sale
of products to buyer. This warranty shall not apply to any units of products which shall have
been repaired or altered other than by SURGE ARREST CANADA INC. Or which shall have
been subject to misuse, negligence, or accident. SURGE ARREST CANADA INC. Shall not
be liable for personal injury resulting directly or indirectly from the design, material,
operation, or installation of any units of products.
Buyer further acknowledges that SURGE ARREST CANADA INC. will have no
responsibility for any claims for infringement of intellectual property rights pertaining to
distribution, sale or use of the Products. SURGE ARREST CANADA INC. Shall have no
duty to defend, indemnify or hold harmless buyer from and against any or all damages and
costs incurred by buyer arising from the infringement of patents or trademarks or the
violation of copyrights.
viii. Limitation of liability: SURGE ARREST CANADA INC. Shall not be liable to buyer,
buyer’s customers, or any other party for any loss, damage, or injury that results from the
use or application by buyer, buyer’s customer, or any other party, of products delivered to
buyer, unless the loss or damage results directly from the intentionally tortious or fraudulent
acts or omissions of SURGE ARREST CANADA INC. In no event shall SURGE ARREST
CANADA INC. Be liable to buyer or any other party for loss, damage, or injury of any kind or
nature arising out of or in connection with these terms and conditions, or any agreement
into which they are incorporated, or any performance or nonperformance under these terms
and conditions by SURGE ARREST CANADA INC., its employees, agents or
subcontractors, in excess of the net purchase price of the products or services actually
delivered to and paid for by buyer hereunder. In no event shall SURGE ARREST CANADA
INC. Be liable to buyer or any other party for indirect, special or consequential damages,
including, but not limited to loss of good will, loss of anticipated profits, or other economic
loss arising out of or in connection with SURGE ARREST CANADA INC.’s breach of, or
failure to perform in accordance with any of these terms and conditions, or the furnishing,
installation, servicing, use of performance of any products or information SURGE ARREST
CANADA INC. Shall provide hereunder, even if notification has been given as to the
possibility of such damages.
ix. CONFIDENTIALITY: The receiving party shall protect the confidentiality and secrecy of
the disclosing party’s Confidential Information and shall prevent any improper disclosure or
use thereof by its employees, agents, contractors or consultants, in the same manner and
with the same degree of care (but in no event less than a reasonable degree of care) as it
uses in protecting its own information of a confidential nature for a period of three (3) years
from the date of such disclosure. Each party must inform its employees having access to
the other’s Confidential Information of restrictions required to comply with this Section 1(ix).
Each party agrees to provide notice to the other immediately after learning of or having
reason to suspect a breach of any of the restrictions of this Section 1(ix). Notwithstanding
the foregoing, each party may disclose the other party’s Confidential Information if and to
the extent that such disclosure is required by applicable law, provided that the receiving
party uses reasonable efforts to limit the disclosure and provides the disclosing party a
reasonable opportunity to review the disclosure before it is made and to interpose its own
objection to the disclosure.
Each party retains for itself all proprietary rights it possesses in and to all its own
Confidential Information. Accordingly, Confidential Information which the disclosing party
may furnish to the receiving party shall be in the receiving party’s possession pursuant only
to a restrictive, nontransferable, nonexclusive license under which the receiving party may
use such Confidential Information under the terms of this Agreement, solely for the
purposes of satisfying its obligations hereunder. Each party understands that the party
receiving Confidential Information may now or in the future be developing proprietary
information internally or receiving proprietary information from third parties in confidence
that may be similar to disclosed Confidential Information. Nothing in this Agreement shall be
construed as a representation or inference that the receiving party will not develop products,
for itself or others, that compete with the products, processes, systems or methods
contemplated by disclosed Confidential Information.
Each party acknowledges that any material violation of the rights and obligations provided in
this Section 1(ix) may result in immediate and irreparable injury to the other party, and
hereby agrees that the aggrieved party shall be entitled to immediate temporary,
preliminary, and permanent injunctive relief against any such continued violations upon
adequate proof, as required by applicable law. Notwithstanding Section 1(m), each party
hereby submits itself to the personal jurisdiction of the courts of competent subject matter
jurisdiction for purposes of entry of such injunctive relief.
x. Electronic Data Interchange/ELECTRONIC COMMUNICATIONS DISCLAIMER: Seller is
not liable for any failure of the EDI service, or any other form of electronic communication
(collectively, “Electronic Communication”) to transmit, receive, store or handle documents or
perform related activities. SURGE ARREST CANADA INC. does not represent or warrant
that the information accessible via the SURGE ARREST CANADA INC. web site is
accurate, complete or current. Price and availability information is subject to change without
notice.
Buyers must properly use security procedures, which are reasonably sufficient to ensure
that all electronic transmissions of documents to Seller are authorized and shall be
responsible for any such unauthorized transmissions. Buyer’s receipt email
acknowledgement is confirmation that Buyer originated an order, when purchasing via
website/e-commerce store.
Any order properly transmitted in accordance with these terms and conditions is considered
to be “in writing”; and any order containing a code is deemed (a) to have been “signed” and
(b) to constitute an “original” when printed from electronic files or records established and
maintained in the normal course of business. Buyer and Seller agree not to contest the
validity or enforceability of orders as to whether certain agreements are to be in writing or
signed.You agree and acknowledge that SURGE ARREST CANADA INC. may suspend or
terminate your account if it is used for any purpose that is unlawful or prohibited by law or
these terms and conditions or that SURGE ARREST CANADA INC. in its sole discretion
determines is abusive.
xi. Force Majeure: Neither party shall be liable to the other for any delay in performance or
failure to perform, in whole or in part, due to labor dispute, strike, war or act of war (whether
an actual declaration is made or not), insurrection, riot, civil commotion, act of public enemy,
accident, fire, flood, earthquake, or other act of God, act of any governmental authority,
judicial action, computer virus or worm, or similar causes beyond the reasonable control of
such party. If any event of force majeure occurs, the party affected by such event shall
promptly notify the other party of such event and take all reasonable actions to avoid the
effect of such event.
xii. Notice: All written notices required by this Agreement must be delivered in person or by
means evidenced by a delivery receipt and will be effective upon receipt.
xiii. CREDIT CARD SENSITIVE INFORMATION
2. Disclaimer
Use of SURGE ARREST CANADA INC.’s e-commerce web site is on an “as is” basis and
SURGE ARREST CANADA INC. Makes no representations or warranties of any kind with
respect to the web site or related products. SURGE ARREST CANADA INC. Disclaims all
representations and warranties, including without limitation warranties of merchantability
and fitness for a particular purpose. In addition, SURGE ARREST CANADA INC. Does not
represent or warrant that the information accessible via the SURGE ARREST CANADA
INC. Web site is accurate, complete or current. Price and availability information is subject
to change without notice.
3. Limitation on Use
Buyer hereby acknowledges that Products are not intended for use in life support systems,
critical care applications, human implantation, commercial aviation, nuclear facilities or
systems or any other applications where product failure could lead to injury to persons or
loss of life or catastrophic property damage. SURGE ARREST CANADA INC. hereby
disclaims any liability or responsibility for risk of loss, expenses, cost, liability, litigation
and/or potential adverse verdict or judgment in relation to any such use of the products.
4. Limited License
The information and databases provided to you via certain SURGE ARREST CANADA INC.
e-commerce web sites is licensed to you by SURGE ARREST CANADA INC. for your use
only in the ordinary course of your business for your review, selection and purchase of
products from SURGE ARREST CANADA INC. This license is non-exclusive, non-
transferable, and may be terminated by SURGE ARREST CANADA INC. with or without
cause at any time.
5. Limitation of Liability
Except as specifically stated herein, neither SURGE ARREST CANADA INC. nor any of its
directors, employees or other representatives will be liable for damages arising out of or in
connection with your use of any SURGE ARREST CANADA INC. web site. This is a
comprehensive limitation of liability that applies to all damages of any kind, including
(without limitation) compensatory, direct, indirect or consequential damages, loss of data,
income or profit, loss of or damage to property and claims of third parties.In no event shall
SURGE ARREST CANADA INC. Be liable for any consequential,
incidental, indirect, exemplary, punitive, special or other damages whatsoever resulting from
or related to buyer’s use of any SURGE ARREST CANADA INC. Web site or SURGE
ARREST CANADA INC.’s performance or failure to perform under this agreement or the
furnishing, performance or use of any product(s) sold pursuant hereto, whether due to
breach of contract, breach of warranty, strict liability, product liability, personal injury, the
negligence of SURGE ARREST CANADA INC. Or otherwise. SURGE ARREST CANADA
INC.’s liability shall be limited solely to the repair, replacement, or credit of the product(s), at
SURGE ARREST CANADA INC.’s option.
6. Indemnity
You agree to defend, indemnify and hold SURGE ARREST CANADA INC. and its affiliates,
and their respective directors, officers, employees and agents, harmless from and against
any and all liabilities, costs and expenses, including reasonable attorneys’ fees, arising from
or in any way relating to your use of any SURGE ARREST CANADA INC. web site or any
Product acquired from SURGE ARREST CANADA INC.
7. Modification
These Terms and Conditions, along with (a) the terms and conditions on any SURGE
ARREST CANADA INC. invoice, (b) the terms and conditions of the SURGE ARREST
CANADA INC. credit application, and (c) the terms and conditions of any other agreement
signed by authorized representatives of both Buyer and Seller, sets forth the entire
agreement and understanding of the parties relating to the subject matter herein. In the
event of a conflict between these various terms and conditions, they will take effect in the
following order of precedence: (1) any signed agreement between the parties; (2) the terms
and conditions on any SURGE ARREST CANADA INC. Invoice, (3) these Terms and
Conditions, and (4) the terms and conditions in Buyer’s credit application to SURGE
ARREST CANADA INC. Any terms and conditions on Buyer’s purchase order or any other
document not signed by SURGE ARREST CANADA INC. shall have no force and effect.
Notwithstanding the foregoing, if Buyer and Seller have executed an agreement that
specifically supersedes and replaces or modifies any or all of the Terms and Conditions, the
terms of such Agreement shall control. No additional or different terms of conditions,
whether material or immaterial, shall become a part of these Terms and Conditions unless
expressly accepted in writing by an authorized officer of Seller. Any waiver by Seller of one
or more of these Terms and Conditions or any defaults hereunder shall not constitute a
waiver of the remaining Terms and Conditions or any future defaults hereunder. It is the
intention of the parties that these Terms and Conditions shall be enforceable to the fullest
possible extent, regardless of any partial invalidity or unenforceability, and that no failure or
delay by either party in exercising or enforcing any right hereunder shall operate as a waiver
thereof or preclude any other exercise or enforcement of rights hereunder. The rights and
obligations of Buyer under the Terms and Conditions may not be assigned by Buyer without
the prior written consent of Seller (which shall not be unreasonably withheld).
SURGE ARREST CANADA INC. may modify the information and functionality of any
SURGE ARREST CANADA INC. web site at any time. SURGE ARREST CANADA INC.
reserves the right, in its sole discretion, to modify, alter or otherwise update these Terms
and Conditions at any time, and you agree to be bound by such modifications, alterations or
updates. Any modifications, alterations or updates to these Terms and Conditions will be
available to you on SURGE ARREST CANADA INC.’s website, and you agree to regularly
check SURGE ARREST CANADA INC.’s website for new versions of these Terms and
Conditions.
8. Waiver of Jury Trial
Each of the parties hereto irrevocably waives any and all right to trial by jury in any legal
proceeding arising out of or relating to this agreement or the transactions contemplated
hereby.
9. Governing Law/Venue
This Agreement shall be governed by and construed under the laws of the Province of
Ontario, without regard to its principles regarding conflicts of law. The parties will attempt in
good faith to promptly resolve any controversy, dispute or claim arising out of or relating to
this Agreement through negotiations between the parties before resorting to other remedies
available to them. If attempts to resolve the dispute amicably have failed or if negotiation to
resolve the dispute is impossible (notably in case of urgent procedure to obtain a protective
order), any action or proceeding between the parties relating to this Agreement shall take
place in Toronto, Ontario and the parties hereby waive any objection to that forum. If any
part of this Agreement is found void and unenforceable, it will not affect the validity of the
balance of the Agreement, which shall remain valid and enforceable according to its terms.
Buyer agrees to pay court costs and reasonable legal fees incurred in the collection of any
unpaid balances whether or not suit is filed. In the event of any litigation arising out of this
Agreement or its enforcement by either party, the prevailing party shall be entitled to
recover as part of any judgement, reasonable attorneys’ fees and court costs.
BY ACCESSING ANY SURGE ARREST CANADA INC. WEB SITE OR PLACING
ORDERS VIA ANY SURGE ARREST CANADA INC.-AUTHORIZED THIRD-PARTY
WEBSITE, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
By accessing the website site of SURGE ARREST CANADA INC. (collectively “SURGE
ARREST CANADA INC.” or “Seller”) or alternatively indicating acceptance as set forth
below, you are agreeing to the following terms and conditions (as modified from time to
time), and each time that you access SURGE ARREST CANADA INC. you reassert your
agreement. You should not access or use surgearrest.ca or any other SURGE ARREST
CANADA INC. web sites if you do not agree with these terms and conditions.
1. Terms and Conditions of Sale
All sales of products and finished goods offered and supplied by Seller to its customer
(“Buyer”) for resale (“Products”) shall be pursuant to the following standard terms and
conditions. Any conflicting terms in your purchase order or elsewhere are without effect
unless signed by the applicable party(ies). All Buyer purchases from SURGE ARREST
CANADA INC. are deemed to be purchases pursuant to a written agreement.
i. ACCEPTANCE: Buyer’s acceptance of these Terms and Conditions shall be indicated by
any of the following, whichever first occurs: (a) Buyer’s written acknowledgement hereof, (b)
Buyer’s submission of an order to SURGE ARREST CANADA INC., regardless of whether
the Product(s) ordered is ever delivered or if the purchase order is completely or partially
fulfilled, rejected, modified or cancelled; (c) Buyer’s receipt of any part of the items specified
for delivery in any purchase order submitted to SURGE ARREST CANADA INC., (c)
Buyer’s application for credit submitted to SURGE ARREST CANADA INC., (d) accessing
any SURGE ARREST CANADA INC. e-commerce web site, or (e) any other act or
expression of acceptance by Buyer. Buyer’s acceptance is expressly limited to the Terms
and Conditions in their entirety without addition, modification or exception and any term,
condition, or proposal hereafter submitted by Buyer (whether oral or in writing), which is
inconsistent with or in addition to the Terms and Conditions set forth hereon is objected to
and is hereby rejected by Seller. Seller’s silence or failure to respond to any such
subsequent term, condition or proposal shall not be deemed to be Seller’s acceptance or
approval thereof.
ii. ORDERS: SURGE ARREST CANADA INC. reserves the right to schedule and
reschedule any order, with notice to Buyer, at SURGE ARREST CANADA INC.’s
reasonable discretion, and to decline any order for any reason, or no reason, in SURGE
ARREST CANADA INC.’s sole discretion.
iii. DELIVERY: Delivery shall be made in accordance with Seller’s shipping policy in effect
on the date of shipment. Product title and risk of loss will transfer to Buyer upon SURGE
ARREST CANADA INC. tendering the Product for delivery to the carrier (F.O.B. Origin). If
Buyer requests special shipping or handling, including expedited shipment, third-party
billing, or freight collect, Buyer shall be responsible filing claims with the carrier and all
freight and handling costs. Buyer shall pay for any special routing, packing, handling or
insurance requested by Buyer and agreed to by SURGE ARREST CANADA INC. Orders
shipped under special routing instructions must be separately agreed upon and may be
subject to additional charges. SURGE ARREST CANADA INC. will not be subject to
requirements of non-compliance programs of Buyer, including charges for product delays,
missing/inaccurate shipping documents, labeling or product markings.
Buyer shall promptly notify Seller, no later than 30 days from invoice date, of any claimed
shortages or rejection as to any delivery, with the exception of deliveries that reveal external
shipping damage, which, in some instances, must be refused immediately upon delivery by
the carrier. Such notice shall be in writing and shall be reasonably detailed stating the
grounds for any such rejection. Failure to provide any such notice within such time shall be
deemed an acceptance in full of any such delivery. Seller shall not be liable for any
shipment delays that affect Seller or any of Seller’s suppliers, including but not limited to
delays caused by unavailability or shortages of Products from Seller’s suppliers, natural
disasters, acts of war or terrorism, acts or omissions of Buyer, fire, strike, riot, or
governmental interference, unavailability or shortage of materials, labor, fuel or power
through normal commercial channels at customary and reasonable rates, failure or
destruction of plant or equipment arising from any cause whatsoever, or transportation
failures.
iv. PRICES: Prices payable by Buyer for the Products are specified on the invoice. Seller
does not offer price protection. Buyer shall bear all applicable federal, state, provincial,
municipal and other government taxes (such as sales, use and similar taxes), as well as
import or customs duties, license fees and similar charges, however designated, levied on
this sale or the Products (or the delivery thereof) or measured by the purchase price
hereunder. Seller’s prices do not include such taxes, fees and charges. Exemption
certificates must be presented prior to shipment if they are to be honored. To the extent any
sale is made without the prior receipt of a valid exemption certificate, Seller expressly
reserves the right to include on the invoice for such sale, or to separately invoice Buyer for
all applicable taxes, fees and charges and Buyer agrees that these amounts shall be
immediately due and payable.
v. PAYMENT TERMS: Buyer shall provide all financial information reasonably requested by
SURGE ARREST CANADA INC. from time to time for the purpose of establishing or
continuing Buyer’s credit limit. Buyer agrees that SURGE ARREST CANADA INC. shall
have the right to decline or extend credit to Buyer and to require that the applicable
purchase price be paid prior to shipment. SURGE ARREST CANADA INC. shall have the
right from time to time, without notice, to change or revoke Buyer’s credit limit on the basis
of changes in SURGE ARREST CANADA INC.’s credit policies or Buyer’s financial
condition and/or payment record.Buyer shall not deduct any amounts from any SURGE ARREST CANADA INC. invoice
without SURGE ARREST CANADA INC.’s express written approval, which approval shall
be contingent upon Buyer providing all supporting documentation for such deduction as
required by SURGE ARREST CANADA INC. Any authorized deductions for returned
Products must include Buyer’s customer tracking number and SURGE ARREST CANADA
INC.’s Return Credit Note number. Deductions received by SURGE ARREST CANADA
INC. without advance notice will be denied. No Program fees may be deducted from
invoices.
If Buyer fails to make timely payment of any amount invoiced by SURGE ARREST
CANADA INC., SURGE ARREST CANADA INC. shall have the right, in addition to any and
all other rights and remedies available to SURGE ARREST CANADA INC. at law or in
equity, to immediately revoke any or all credit extended, to delay or cancel future deliveries
and/or to reduce or cancel any or all quantity discounts extended to Buyer. Buyer shall pay
all costs of collection including reasonable attorneys’ fees. A service charge of the greater
of one and one-half percent (1 ½%) per month or the maximum amount allowed by law will
be charged on all past due balances commencing on the date payment is due.
vi. PRODUCT RETURNS: Return of Products purchased from SURGE ARREST CANADA
INC. shall be governed by Seller’s product return policies in effect on the date of return.
Seller reserves the right to modify or eliminate such policies at any time. Although Seller’s
policies may permit Buyer to return Products claimed to be defective under certain
circumstances, Seller makes no representations or warranties of any kind with respect to
the Products.
vii. WARRANTIES; INDEMNITY: Buyer acknowledges that SURGE ARREST CANADA
INC. is not the manufacturer of the Products that will be sold to it, and that SURGE
ARREST CANADA INC. therefore will have no responsibility for, among other things,
product warranties. Product warranties, if any, are provided by the manufacturer or
publisher of the Products. SURGE ARREST CANADA INC.’s sole obligation (and Buyer’s
sole remedy) in the event of breach of any warranty shall be to assist the Buyer in its efforts
to have the manufacturer repair or replace defective Product(s).
This warranty is in lieu of all other warranties whether statutory, express or implied,
including but not limited to, implied warranties of merchantability, fitness for particular
purpose and non-infringement and for all other obligations or liabilities on SURGE ARREST
CANADA INC.’s part.
SURGE ARREST CANADA INC. Neither assumes, nor authorizes any other person to
assume for SURGE ARREST CANADA INC., any other liability in connection with the sale
of products to buyer. This warranty shall not apply to any units of products which shall have
been repaired or altered other than by SURGE ARREST CANADA INC. Or which shall have
been subject to misuse, negligence, or accident. SURGE ARREST CANADA INC. Shall not
be liable for personal injury resulting directly or indirectly from the design, material,
operation, or installation of any units of products.
Buyer further acknowledges that SURGE ARREST CANADA INC. will have no
responsibility for any claims for infringement of intellectual property rights pertaining to
distribution, sale or use of the Products. SURGE ARREST CANADA INC. Shall have no
duty to defend, indemnify or hold harmless buyer from and against any or all damages and
costs incurred by buyer arising from the infringement of patents or trademarks or the
violation of copyrights.
viii. Limitation of liability: SURGE ARREST CANADA INC. Shall not be liable to buyer,
buyer’s customers, or any other party for any loss, damage, or injury that results from the
use or application by buyer, buyer’s customer, or any other party, of products delivered to
buyer, unless the loss or damage results directly from the intentionally tortious or fraudulent
acts or omissions of SURGE ARREST CANADA INC. In no event shall SURGE ARREST
CANADA INC. Be liable to buyer or any other party for loss, damage, or injury of any kind or
nature arising out of or in connection with these terms and conditions, or any agreement
into which they are incorporated, or any performance or nonperformance under these terms
and conditions by SURGE ARREST CANADA INC., its employees, agents or
subcontractors, in excess of the net purchase price of the products or services actually
delivered to and paid for by buyer hereunder. In no event shall SURGE ARREST CANADA
INC. Be liable to buyer or any other party for indirect, special or consequential damages,
including, but not limited to loss of good will, loss of anticipated profits, or other economic
loss arising out of or in connection with SURGE ARREST CANADA INC.’s breach of, or
failure to perform in accordance with any of these terms and conditions, or the furnishing,
installation, servicing, use of performance of any products or information SURGE ARREST
CANADA INC. Shall provide hereunder, even if notification has been given as to the
possibility of such damages.
ix. CONFIDENTIALITY: The receiving party shall protect the confidentiality and secrecy of
the disclosing party’s Confidential Information and shall prevent any improper disclosure or
use thereof by its employees, agents, contractors or consultants, in the same manner and
with the same degree of care (but in no event less than a reasonable degree of care) as it
uses in protecting its own information of a confidential nature for a period of three (3) years
from the date of such disclosure. Each party must inform its employees having access to
the other’s Confidential Information of restrictions required to comply with this Section 1(ix).
Each party agrees to provide notice to the other immediately after learning of or having
reason to suspect a breach of any of the restrictions of this Section 1(ix). Notwithstanding
the foregoing, each party may disclose the other party’s Confidential Information if and to
the extent that such disclosure is required by applicable law, provided that the receiving
party uses reasonable efforts to limit the disclosure and provides the disclosing party a
reasonable opportunity to review the disclosure before it is made and to interpose its own
objection to the disclosure.
Each party retains for itself all proprietary rights it possesses in and to all its own
Confidential Information. Accordingly, Confidential Information which the disclosing party
may furnish to the receiving party shall be in the receiving party’s possession pursuant only
to a restrictive, nontransferable, nonexclusive license under which the receiving party may
use such Confidential Information under the terms of this Agreement, solely for the
purposes of satisfying its obligations hereunder. Each party understands that the party
receiving Confidential Information may now or in the future be developing proprietary
information internally or receiving proprietary information from third parties in confidence
that may be similar to disclosed Confidential Information. Nothing in this Agreement shall be
construed as a representation or inference that the receiving party will not develop products,
for itself or others, that compete with the products, processes, systems or methods
contemplated by disclosed Confidential Information.
Each party acknowledges that any material violation of the rights and obligations provided in
this Section 1(ix) may result in immediate and irreparable injury to the other party, and
hereby agrees that the aggrieved party shall be entitled to immediate temporary,
preliminary, and permanent injunctive relief against any such continued violations upon
adequate proof, as required by applicable law. Notwithstanding Section 1(m), each party
hereby submits itself to the personal jurisdiction of the courts of competent subject matter
jurisdiction for purposes of entry of such injunctive relief.
x. Electronic Data Interchange/ELECTRONIC COMMUNICATIONS DISCLAIMER: Seller is
not liable for any failure of the EDI service, or any other form of electronic communication
(collectively, “Electronic Communication”) to transmit, receive, store or handle documents or
perform related activities. SURGE ARREST CANADA INC. does not represent or warrant
that the information accessible via the SURGE ARREST CANADA INC. web site is
accurate, complete or current. Price and availability information is subject to change without
notice.
Buyers must properly use security procedures, which are reasonably sufficient to ensure
that all electronic transmissions of documents to Seller are authorized and shall be
responsible for any such unauthorized transmissions. Buyer’s receipt email
acknowledgement is confirmation that Buyer originated an order, when purchasing via
website/e-commerce store.
Any order properly transmitted in accordance with these terms and conditions is considered
to be “in writing”; and any order containing a code is deemed (a) to have been “signed” and
(b) to constitute an “original” when printed from electronic files or records established and
maintained in the normal course of business. Buyer and Seller agree not to contest the
validity or enforceability of orders as to whether certain agreements are to be in writing or
signed.You agree and acknowledge that SURGE ARREST CANADA INC. may suspend or
terminate your account if it is used for any purpose that is unlawful or prohibited by law or
these terms and conditions or that SURGE ARREST CANADA INC. in its sole discretion
determines is abusive.
xi. Force Majeure: Neither party shall be liable to the other for any delay in performance or
failure to perform, in whole or in part, due to labor dispute, strike, war or act of war (whether
an actual declaration is made or not), insurrection, riot, civil commotion, act of public enemy,
accident, fire, flood, earthquake, or other act of God, act of any governmental authority,
judicial action, computer virus or worm, or similar causes beyond the reasonable control of
such party. If any event of force majeure occurs, the party affected by such event shall
promptly notify the other party of such event and take all reasonable actions to avoid the
effect of such event.
xii. Notice: All written notices required by this Agreement must be delivered in person or by
means evidenced by a delivery receipt and will be effective upon receipt.
xiii. CREDIT CARD SENSITIVE INFORMATION
2. Disclaimer
Use of SURGE ARREST CANADA INC.’s e-commerce web site is on an “as is” basis and
SURGE ARREST CANADA INC. Makes no representations or warranties of any kind with
respect to the web site or related products. SURGE ARREST CANADA INC. Disclaims all
representations and warranties, including without limitation warranties of merchantability
and fitness for a particular purpose. In addition, SURGE ARREST CANADA INC. Does not
represent or warrant that the information accessible via the SURGE ARREST CANADA
INC. Web site is accurate, complete or current. Price and availability information is subject
to change without notice.
3. Limitation on Use
Buyer hereby acknowledges that Products are not intended for use in life support systems,
critical care applications, human implantation, commercial aviation, nuclear facilities or
systems or any other applications where product failure could lead to injury to persons or
loss of life or catastrophic property damage. SURGE ARREST CANADA INC. hereby
disclaims any liability or responsibility for risk of loss, expenses, cost, liability, litigation
and/or potential adverse verdict or judgment in relation to any such use of the products.
4. Limited License
The information and databases provided to you via certain SURGE ARREST CANADA INC.
e-commerce web sites is licensed to you by SURGE ARREST CANADA INC. for your use
only in the ordinary course of your business for your review, selection and purchase of
products from SURGE ARREST CANADA INC. This license is non-exclusive, non-
transferable, and may be terminated by SURGE ARREST CANADA INC. with or without
cause at any time.
5. Limitation of Liability
Except as specifically stated herein, neither SURGE ARREST CANADA INC. nor any of its
directors, employees or other representatives will be liable for damages arising out of or in
connection with your use of any SURGE ARREST CANADA INC. web site. This is a
comprehensive limitation of liability that applies to all damages of any kind, including
(without limitation) compensatory, direct, indirect or consequential damages, loss of data,
income or profit, loss of or damage to property and claims of third parties.In no event shall
SURGE ARREST CANADA INC. Be liable for any consequential,
incidental, indirect, exemplary, punitive, special or other damages whatsoever resulting from
or related to buyer’s use of any SURGE ARREST CANADA INC. Web site or SURGE
ARREST CANADA INC.’s performance or failure to perform under this agreement or the
furnishing, performance or use of any product(s) sold pursuant hereto, whether due to
breach of contract, breach of warranty, strict liability, product liability, personal injury, the
negligence of SURGE ARREST CANADA INC. Or otherwise. SURGE ARREST CANADA
INC.’s liability shall be limited solely to the repair, replacement, or credit of the product(s), at
SURGE ARREST CANADA INC.’s option.
6. Indemnity
You agree to defend, indemnify and hold SURGE ARREST CANADA INC. and its affiliates,
and their respective directors, officers, employees and agents, harmless from and against
any and all liabilities, costs and expenses, including reasonable attorneys’ fees, arising from
or in any way relating to your use of any SURGE ARREST CANADA INC. web site or any
Product acquired from SURGE ARREST CANADA INC.
7. Modification
These Terms and Conditions, along with (a) the terms and conditions on any SURGE
ARREST CANADA INC. invoice, (b) the terms and conditions of the SURGE ARREST
CANADA INC. credit application, and (c) the terms and conditions of any other agreement
signed by authorized representatives of both Buyer and Seller, sets forth the entire
agreement and understanding of the parties relating to the subject matter herein. In the
event of a conflict between these various terms and conditions, they will take effect in the
following order of precedence: (1) any signed agreement between the parties; (2) the terms
and conditions on any SURGE ARREST CANADA INC. Invoice, (3) these Terms and
Conditions, and (4) the terms and conditions in Buyer’s credit application to SURGE
ARREST CANADA INC. Any terms and conditions on Buyer’s purchase order or any other
document not signed by SURGE ARREST CANADA INC. shall have no force and effect.
Notwithstanding the foregoing, if Buyer and Seller have executed an agreement that
specifically supersedes and replaces or modifies any or all of the Terms and Conditions, the
terms of such Agreement shall control. No additional or different terms of conditions,
whether material or immaterial, shall become a part of these Terms and Conditions unless
expressly accepted in writing by an authorized officer of Seller. Any waiver by Seller of one
or more of these Terms and Conditions or any defaults hereunder shall not constitute a
waiver of the remaining Terms and Conditions or any future defaults hereunder. It is the
intention of the parties that these Terms and Conditions shall be enforceable to the fullest
possible extent, regardless of any partial invalidity or unenforceability, and that no failure or
delay by either party in exercising or enforcing any right hereunder shall operate as a waiver
thereof or preclude any other exercise or enforcement of rights hereunder. The rights and
obligations of Buyer under the Terms and Conditions may not be assigned by Buyer without
the prior written consent of Seller (which shall not be unreasonably withheld).
SURGE ARREST CANADA INC. may modify the information and functionality of any
SURGE ARREST CANADA INC. web site at any time. SURGE ARREST CANADA INC.
reserves the right, in its sole discretion, to modify, alter or otherwise update these Terms
and Conditions at any time, and you agree to be bound by such modifications, alterations or
updates. Any modifications, alterations or updates to these Terms and Conditions will be
available to you on SURGE ARREST CANADA INC.’s website, and you agree to regularly
check SURGE ARREST CANADA INC.’s website for new versions of these Terms and
Conditions.
8. Waiver of Jury Trial
Each of the parties hereto irrevocably waives any and all right to trial by jury in any legal
proceeding arising out of or relating to this agreement or the transactions contemplated
hereby.
9. Governing Law/Venue
This Agreement shall be governed by and construed under the laws of the Province of
Ontario, without regard to its principles regarding conflicts of law. The parties will attempt in
good faith to promptly resolve any controversy, dispute or claim arising out of or relating to
this Agreement through negotiations between the parties before resorting to other remedies
available to them. If attempts to resolve the dispute amicably have failed or if negotiation to
resolve the dispute is impossible (notably in case of urgent procedure to obtain a protective
order), any action or proceeding between the parties relating to this Agreement shall take
place in Toronto, Ontario and the parties hereby waive any objection to that forum. If any
part of this Agreement is found void and unenforceable, it will not affect the validity of the
balance of the Agreement, which shall remain valid and enforceable according to its terms.
Buyer agrees to pay court costs and reasonable legal fees incurred in the collection of any
unpaid balances whether or not suit is filed. In the event of any litigation arising out of this
Agreement or its enforcement by either party, the prevailing party shall be entitled to
recover as part of any judgement, reasonable attorneys’ fees and court costs.
BY ACCESSING ANY SURGE ARREST CANADA INC. WEB SITE OR PLACING
ORDERS VIA ANY SURGE ARREST CANADA INC.-AUTHORIZED THIRD-PARTY
WEBSITE, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
(C) 2022 Surge Arrest Canada Inc.