Standard Terms & Conditions of Sale
SECTION 1 - GENERAL
All references to Redline herein shall mean Redline Communications Inc., and all references to Customer herein shall mean the customer named in a contract, purchase order, quotation, proposal, or other agreement between the parties. All quotations from Redline shall be considered solicitations of offers. All orders placed by Customer shall be considered offers which shall be deemed accepted upon notice thereof from Redline. Customer will provide Redline with a complete written authorization or purchase order (with frequencies and all other technical specifications required to manufacture the equipment to completion), containing necessary information, such as site name, type and quantity of radios, requested delivery date and delivery instructions. Notwithstanding any terms or conditions which may be included in Customer’s purchase order or other communication, Redline’s acceptance is conditional upon Customer’s assent to the terms and conditions set forth herein or in any other binding contract or agreement between the parties incorporating these terms and conditions. Redline’s failure to object to any term or condition contained in Customer’s purchase order or other communication shall not be deemed to be acceptance of such term or condition. In the absence of Customer’s written acceptance of these terms, acceptance of or payment for purchases hereunder shall constitute an acceptance of these terms and conditions. The terms and conditions set forth herein shall be deemed incorporated (as though set forth in full) into any agreement of sale entered into between Redline and Customer unless otherwise modified in writing. Redline quotations are not firm unless expressly indicated, with a specific period of time during which the quotation will remain firm on the face thereof. Redline reserves the right, without any increase in price, to modify the design and specifications of equipment designed by Redline, provided that the modification does not adversely affect the original performance specifications as specified by Redline or as requested by the Customer. Customer shall not assign any interest in the contents of this quotation without the prior written consent of Redline. All orders are subject to prior credit approval. Typographic and clerical errors are subject to correction. All headings contained in these terms and conditions are for reference purposes only and shall not in any way affect the meaning or interpretation of these terms and conditions.
SECTION 2 - SHIPPING AND HANDLING
All deliveries and risk of loss shall be determined in accordance with the FOB shipping point in accordance with the Uniform Commercial Code for U.S. shipments and EXW (“Ex Works”) for international shipments in accordance with International Commercial Terms (“Incoterms”) 2020, unless otherwise specified by Customer and agreed to by Redline in writing. All shipping and handling charges incurred by Redline and approved by Customer will be included on the applicable invoice as a separately priced item to be paid by the Customer. Freight quotes provided are subject to change without notification, and freight charges will be invoiced based on final carrier freight bills. It is understood that Redline will not provide the Customer with any copies of carrier freight bills. All packaging and packing shall be in accordance with sound commercial practice. Special export packaging, packing or crating, as required, will be quoted separately.
SECTION 3 - CONFIDENTIALITY
To the extent that, in connection with this agreement, each party comes into possession of any proprietary or confidential information of the other party (“Confidential Information”), each party agrees to use the Confidential Information of the other party solely for the purposes of this agreement, and will not disclose such Confidential Information to any third party without the other party’s prior written consent. The terms of this agreement shall also be considered Confidential Information. Each party shall maintain the Confidential Information of the other party in confidence using at least the same degree of care as it employs in maintaining in confidence its own proprietary and confidential information, but in no event less than a reasonable degree of care.
Confidential Information shall not include information which:
Shall have otherwise become publicly available other than as a result of disclosure by the receiving party in breach hereof;
Was disclosed to the receiving party on a non-confidential basis from a source other than the disclosing party, which the receiving party believes is not prohibited from disclosing such information as a result of an obligation in favor of the disclosing party;
Is developed by the receiving party independently of, or was known by the receiving party prior to, any disclosure of such information made by the disclosing party; or
is disclosed with the written consent of the disclosing party.
Should applicable law or any rule or regulation of any governmental entity of competent jurisdiction require disclosure of Confidential Information of the Disclosing Party in the Receiving Party’s possession, custody or control, the Receiving Party shall use commercially reasonable efforts to:
Give at least fifteen (15) days prior written notice of such disclosure to the Disclosing Party;
Limit such disclosure to the extent practicable; and
Make such disclosure only to the extent so required.
Redline may provide its subcontractors hereunder with access to Confidential Information of Customer, provided that each such contracted affiliate and subcontractor has agreed to be bound by similar confidentiality and nondisclosure obligations.
SECTION 4 - DELIVERY AND TITLE
Shipping or delivery dates are best estimates only and subject to change based on Redline commitments at the time Customer’s purchase order is received and accepted. Redline reserves the right to make deliveries in installments, and contracts or other agreements between the parties shall be severable as to such instalments. A delay in delivery or default of any instalment shall not relieve Customer of its obligation to accept and pay for remaining deliveries. Claims for shipment shortage or damage shall be deemed waived unless presented to Redline in writing within ten (10) days of delivery of each shipment, and failure to make any claim within ten (10) days after receipt of each product covered hereunder shall constitute an irrevocable acceptance thereof. Title to the products shall pass to Customer upon receipt of full payment by Redline for such goods, except that in any jurisdiction in which such retention of title is not recognized, Redline shall be deemed to have retained a purchase money security interest and right of possession in the products until Customer makes full payment. Redline’s rights to enforce such purchase money security interest and its right of possession shall be nonexclusive remedies. Customer agrees to cooperate as necessary to assist Redline in perfecting such security interest, upon request.
SECTION 5 - SERVICE COMPLETION
Service completion dates indicated on quotations are subject to review and revision on the basis of Redline commitments at the time Customer’s order is received and accepted. All service completion dates are subject to credit approval, are approximate until confirmed in writing by Redline, and are based upon receipt of timely, accurate, and complete instructions and information from the Customer.
SECTION 6 - ACCESS
Customer hereby grants access to Redline to all equipment, sites, premises, and other areas where work is to be performed under these terms and conditions. Redline will make all reasonable efforts to comply with Customer’s standard rules and regulations for access, a copy of which will be furnished to Redline by Customer upon the submission of any order to be performed under these terms and conditions. Customer acknowledges that Redline may use non-union personnel to perform work. Redline will make all reasonable efforts to observe Customer’s procedures in cooperation with union personnel; however, Customer agrees to indemnify and hold Redline harmless from all costs associated with the compliance of union work rules or union activities which may interfere with Redline’s performance requirements.
SECTION 7 - PRODUCT WARRANTY
Redline manufactured products are warranted to be free from defect in material and workmanship under normal use and service for a period of one (1) year from the date of shipment. In the event of a defect during the warranty period, Customer will return the defective item to the Redline depot repair facility for repair or replacement. Repair at Redline’s option may include the replacement of parts or equipment and all replaced parts or equipment shall be the property of Redline. Parts or equipment replaced during the warranty period are warranted for the remainder of the original applicable warranty period or ninety (90) days, whichever is greater. This express warranty is extended by Redline to the original Customer for commercial, industrial or governmental use. Such action on the part of Redline shall be the full extent of Redline’s liability and Customer’s exclusive remedy for breach of warranty. Expenses of Customer such as travel expenses and shipping costs are not covered by this warranty.
This warranty extends only to products manufactured by Redline, and it is expressly conditioned upon the equipment having been installed in accordance with the standard installation and configuration practices recommended by Redline, and the equipment having been maintained in accordance with Redline recommended standard maintenance practices. Vendor products and other equipment not manufactured by Redline are excluded, but may carry their own separate limited warranties.
This warranty shall automatically terminate if the product is used in other than its normal and customary manner, has been subject to misuse, accident, neglect, or damage, is improperly disassembled or has improper alterations or repairs, or if nonconforming parts are used in the product, unless done by a service facility authorized by Redline to perform warranty service. The warranty for Network Management Systems (“NMS”) shall automatically terminate if software is altered, added, or removed from the platform without prior Redline approval. NMS provided by Redline does not include virus protection software and this warranty does not cover damages caused by computer viruses.
Since each radio system is unique, Redline disclaims liability for range, coverage, or operation of a system as a whole under this warranty, except by a separate written agreement signed by an officer of Redline. This warranty shall not cover any damages caused by Acts of God including, but not limited to, flood, lightning, seismic activity; and events of Force Majeure, such as fire, explosion, war, civil disturbance et al.
THIS REDLINE PRODUCT WARRANTY IS GIVEN IN LIEU OF ALL OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED, WHICH ARE SPECIFICALLY EXCLUDED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
An authorization to return products under this warranty must be obtained from a Redline representative prior to making shipment to Redline’s service location, and all returns shall be shipped freight pre-paid. In the event that Redline provides services only, Redline warrants the performance and specifications of such services but does not warrant that such services performed will fulfill the total system requirement of the Customer.
SECTION 8 - SERVICES WARRANTY
Redline warrants that it will perform the services hereunder in a manner that is consistent with industry practice.
REDLINE DISCLAIMS ALL OTHER SERVICE WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND / OR FITNESS OF THE SERVICES OR THE DELIVERABLES FOR A PARTICULAR PURPOSE.
Customer’s exclusive remedy for any breach of this warranty shall be for Redline, upon receipt of written notice, to use reasonable efforts to cure such breach, or, failing any such cure in a reasonable period of time, to return the professional fees paid to Redline hereunder with respect to the services giving rise to such breach.
SECTION 9 - PAYMENT
For domestic shipments, Redline’s standard terms of sale are net thirty (30) days of invoice date, subject to the approval of Redline. For export shipments, the standard payment terms are irrevocable Letter of Credit (in accordance with Redline Letter of Credit Guidelines) or Cash in Advance (as described below), unless Redline has, prior to its acceptance of Customer’s purchase order, approved in writing other credit arrangements. All payments, whether by Letter of Credit or Cash in Advance, shall be made in U.S. Dollars (US$) by electronic funds transfer. All orders on terms of Cash in Advance require a 25% payment upon placement of the order and the balance shall be paid prior to shipment. Exceptions to the payment terms included herein shall be subject to the prior consideration and written approval of Redline. The Customer shall make payments in full to Redline at the address stated on the Redline invoice or as otherwise specified in writing by Redline. Overdue payments are subject to a service charge of 1½% per month or the maximum legal rate, whichever is lower. Without limiting its rights or remedies, Redline shall have the right to suspend or terminate, in whole or in part, its services or shipments of products and equipment if, at any time, the customer has any invoices outstanding for which payments are past due. To the extent permitted by applicable law, Customer agrees to pay any and all costs and disbursements, including reasonable attorney’s fees, incurred by Redline in legal proceedings to collect overdue invoices or enforce indebtedness. Customer agrees that any and all costs or disbursements may be added to the total invoice amount already due at time of placement with an attorney or collection agency.
SECTION 10 - TERM
Unless terminated sooner in accordance with its terms, this agreement shall terminate at the end of the period of time identified in the Agreement. This agreement may be terminated by either party at any time with or without cause by giving written notice to the other party not less than thirty (30) days before the effective date of termination, provided that in the event of a termination for cause, the breaching party shall have the right to cure the breach within the notice period.
SECTION 11 - LICENSE AND OWNERSHIP
Redline Technology. Redline and its subcontractors have created, acquired or otherwise have rights in, and may, in connection with the performance of services hereunder, employ, provide, modify, create, acquire or otherwise obtain rights in, various intellectual, industrial and other property, including, without limitation, concepts, ideas, methods, methodologies, procedures, processes, know-how, techniques, models, templates, the generalized features of the structure, sequence and organization of software, user interfaces and screen designs, general purpose consulting and software tools, utilities and routines, and logic, coherence and methods of operation of systems (collectively, the “Redline Technology”).
Ownership of Deliverables. For purposes of this Agreement, “Deliverables” shall mean all work product first created by Redline for delivery to Customer in connection with the services provided hereunder, but shall not include any third-party software or related documentation licensed directly to Customer from a third party, or any modifications or enhancements thereto or derivatives thereof. Subject to Customer’s full and final payment to Redline hereunder, Redline shall:
transfer, assign and convey to Customer all right, title and interest in and to the Deliverables (except for any Redline Technology contained therein); and
grant to Customer a non-exclusive, royalty-free, worldwide, perpetual, non-transferable license to use, for Customer’s internal business purposes, any Redline Technology contained in the Deliverables.
Ownership of Redline Property. To the extent that Redline uses any Redline Technology or any other intellectual, industrial or other property in connection with the performance of its services, Redline shall retain all right, title and interest in and to such property, and, except for the license expressly granted in Section 4(b), Customer shall acquire no right, title or interest in or to such property.
SECTION 12 - TAXES
Except for the amount, if any, of tax stated in a Redline contract, quotation, proposal, or customer purchase order, or other agreement between the parties, Redline sale prices and warranty provisions are exclusive of any amount for federal, state, provincial, local, excise, sales, use, property, retailers occupation, in-country, import, VAT, or similar taxes or duties. Such prices are also exclusive of all government permit fees, license fees, customs fees and similar fees levied upon delivery of the Redline products and services. The Customer shall be liable for all such taxes, duties and fees, regardless of whether or not the same are separately stated by Redline, and the Customer shall pay the amount thereof to Redline or, in lieu thereof, the Customer shall provide Redline with a properly executed tax exemption certificate acceptable to the taxing authorities prior to delivery of Redline product. If Redline is required to pay or bear the burden of any excluded tax then the Customer shall reimburse to Redline the full amount of any such tax payment no later than ten (10) days after receipt of an invoice.
SECTION 13 - TERMINATION, CHANGES AND DELAYS
Redline shall not be liable for any delay or failure to perform due to any cause beyond its control, including, but not limited to: events of Acts of God including, but not limited to, flood, lightning, seismic activity; and events of Force Majeure such as fire, explosion, war, civil disturbances, default of any supplier; delays caused by any government or regulatory body, frequency authorization, license grant; government intervention; inability to obtain necessary labour, material, or facilities; interruptions of transportation or utilities and strikes. The delivery schedule shall be considered extended by a period of time reasonably necessary to perform after such event(s). Notwithstanding the preceding sentence, in the event Redline is unable to wholly or partially perform due to any cause beyond its control, Redline may terminate any contract without liability to Customer. Customer may cancel any order due to the default of Redline upon thirty (30) days prior written notice and failure to cure by Redline.
Otherwise orders may be terminated, changed or delayed by Customer only with the specific approval of Redline and shall be subject to termination, change or delay charges which shall include compensation for specific expenses and costs related to commitments already made in connection with the order and a reasonable allowance for the cost of overhead, general and administrative expenses and profit in accordance with Redline’s standard accounting practices. A 50% cancellation fee will be applicable to any order cancelled after fifteen (15) days. Returned product shall be contained in its original packaging and shall be subject to a restocking fee equal to twenty-five percent (25%) of the original purchase price. Change orders may also necessitate a change in the delivery schedule or service completion date. In the event Customer causes a delay in contract completion or delivery, Redline shall have the right to submit invoices, due and payable upon receipt, at sales value for progress to date, and Customer shall pay the invoiced amount and all necessary storage charges and other costs incurred due to such delay.
SECTION 14 - GOVERNMENT OR IN-COUNTRY LICENSING
The Customer is solely responsible for obtaining any licenses or other authorizations required by any applicable government regulatory bodies, and for complying with their rules and with the rules and regulations of any U.S., Canadian or foreign regulatory agency, whether federal, state, provincial, local or otherwise. Neither Redline, nor any of its employees, will be an agent or representative of the Customer in such matters or otherwise. Redline may assist in the preparation of the license application by the Customer; however, Redline’s warranty shall not be modified to the detriment of Redline, and Redline shall have no liability to Customer or any third parties arising out of or relating to Redline rendering technical advice, facilities or service in connection with such assistance.
SECTION 15 - GOVERNING LAW
This document shall be governed by and construed under the laws of the Province of Ontario, Canada, as applied to contracts. The parties hereby agree that this document shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. This document is prepared and executed in the English language only and any translation of this document into any other language shall have no effect on effectiveness of or the interpretation of this document.
SECTION 16 - EXPORT COMPLIANCE
The rights and obligations of the Customer shall be subject to such Canadian laws and regulations as shall from time to time govern the license and delivery of technology abroad by persons subject to the jurisdiction of Canada. Enforced regulations are The Export and Import Permits Act (EIPA), The Customs Act, United Nations Act, Special Economic Measures Act or other relevant Acts of Parliament which prohibit the export of the goods and / or technology.
The Customer shall certify that it will not, directly or indirectly, export, re-export or tranship the Redline Products or any parts or copies thereof in such manner that will violate such laws and regulations in effect from time to time. Customer certifies that all products from Redline including Cryptography will be used solely for purposes such as demonstration or evaluation of products, protection of company proprietary and / or internal communications, secure communication with clients, secure communication with branches, secure communication with supply chain, provision of a network / crypto service for the Customer at the final destination as specified by the Export Permit used to export such products from Redline facilities. Further, the Customer certifies that all products from Redline including cryptography will not be used for military purposes nor will they be used in any nuclear or missile proliferation activity, in the design of chemical or biological weapons nor resold or exported to any entity involved in such activity without the authorization of the appropriate government.
The Customer is not authorized to export goods received from Redline including cryptography to any of the following destinations / entities without appropriate export permit the authorization of Redline Communications and the Government of Canada: Any country on Canada’s Area Control List, Afghanistan, Belarus, Central African Republic, Cote D’Ivoire, Cuba, Democratic Republic of Congo, Democratic People’s Republic of Korea (North Korea), Egypt, Eritrea, Guinea, Guinea – Bissau, Iran, Iraq, Lebanon, Liberia, Libya, Myanmar (Burma), Pakistan, Russia, Rwanda, Sierra Leone, Somalia, Sudan, South Sudan, Syria, Tunisia, Ukraine, Venezuela, Yemen, and Zimbabwe, or any country subject to Canadian Economic Sanctions (including the United Nations Act, the Special Economic Measures Act, or any other relevant Act of Parliament which prohibits the export of the goods and/or technology including Military Use or Terrorist activities).
The Customer is required to complete an End Use Statement for product that is controlled under the EIPA. An export permit may be required upon assessment of the End Use Statement.
SECTION 17 - LIMITATION OF LIABILITY
Redline’s total liability is limited to the net price of the products sold hereunder, excluding any charges stated separately from the product price on the invoice. Customer’s sole remedy for liability of any kind, including negligence, with respect to the equipment and documentation furnished hereunder is to request Redline, at Redline’s option, to refund the purchase price, except that in the case of a breach of product warranty, the buyer’s sole remedy is to return the product to Redline for repair in accordance with section 5 of these standard terms and conditions of sale.
No action shall be brought for any breach of this contract more than one (1) year after the accrual of such cause of action except for money due upon an open account. In no event shall Redline be liable for increased costs, loss of profits, loss of goodwill, or any incidental or consequential damages for any reason.
With respect to services, Redline liability for any path survey, site survey, field measurements, or path engineering is limited to the re-survey, re-measurement, or re-engineering of the path or site. Redline does not warranty propagation or path performance. All surveys are accurate as of the date the survey was conducted. Redline is not responsible for uncontrolled events, such as future building obstructions or microwave paths in or near the surveyed path or controlled site, which could cause blockage or interference.
SECTION 18 - COOPERATION
Customer shall cooperate with Redline in the performance of the services hereunder, including, without limitation, providing Redline with reasonable facilities and timely access to data, information and personnel of Customer. Customer shall be responsible for the performance of its employees and agents and for the accuracy and completeness of all data and information provided to Redline hereunder. Customer acknowledges and agrees that Redline’s performance is dependent upon the timely and effective satisfaction of Customer’s responsibilities hereunder and timely decisions and approvals of Customer in connection with the services. Redline shall be entitled to rely on all decisions and approvals of Customer.
SECTION 19 - NON-EXCLUSIVITY
This agreement shall not preclude or limit in any way:
the right of Redline to provide services of any kind or nature whatsoever to any individual or entity as Redline in its sole discretion deems appropriate; or
developing for itself or for others, materials that are competitive with those produced as a result of the services provided hereunder, irrespective of their similarity to the Deliverables.
SECTION 20 - WAIVER
The failure of Redline to insist, in any one or more instances, upon the performance of any of the terms, covenants or conditions herein or to exercise any right hereunder, shall not be construed as a waiver or relinquishment of the future performance of any such term, covenant or condition, or the future exercise of such right, but the obligation of the Customer with respect to such future performance shall continue in full force and effect.
SECTION 21 - SUBSURFACE OR STRUCTURAL CONDITIONS
The prices for any towers included in a Redline proposal are based upon normal soil conditions of Electronics Industries Association (EIA) standard RS-333-C. Should Redline encounter subsurface, structural and / or latent conditions at the site materially differing from those used in the preparation of the quotation, an equitable adjustment to the price shall be mutually agreed upon prior to installation. The Customer is responsible for specifying tower hardware requirements. If no requirements are provided by the Customer, Redline will provide its standard production climbing devices and no representation is made by Redline that such devices will be in compliance with Occupational Safety and Health Administration (OSHA)’s Tower Climbing Device Specifications.
SECTION 22 - INDEPENDENT CONTRACTOR
Each party is an independent contractor, and neither party is, nor shall represent itself to be, an agent, partner, fiduciary, joint venturer, co-owner or representative of the other.
SECTION 23 - SURVIVAL
All sections herein relating to payment, license and ownership, confidentiality, warranties, limitations of warranties, limitations of liability, non-exclusivity, survival and waiver shall survive the termination of this agreement.
SECTION 24 - NOTICES
All notices hereunder shall be:
delivered to the representatives of the parties at the addresses set forth in the agreement, proposal and / or statement of work to which these terms are attached (unless changed by either party upon notice to the other party); and
effective upon receipt.
SECTION 25 - ASSIGNMENT
Except as provided below, neither party may assign, transfer or delegate any of the rights or obligations hereunder (including, without limitation, interests or claims relating to this agreement) without the prior written consent of the other party. Either party may assign this agreement, without the consent of the other party, to an entity that has acquired all or substantially all of the assigning party’s assets as a successor to the business.
SECTION 26 - COMPLETE AGREEMENT
Customer acknowledges that Customer has read and understands these Standard Terms and Conditions of Sale as stated, and agrees to be bound by them and that these are the complete and exclusive statement of the agreement between the parties and supersede all proposals, oral or written, and all other communications between the parties relating to the subject matter. No modification hereof shall be binding upon either party unless such modification is in writing signed by duly authorized representatives of the parties. If any part of the terms and conditions included herein is deemed contrary to, prohibited by or invalid under applicable laws or regulations, such provision shall be deemed omitted to the extent so contrary, prohibited or invalid, but the remainder shall not be invalidated and shall be given effect as far as possible.
RedCare Support Services General Terms and Conditions
SECTION 1 - DEFINITIONS
“Agreement” shall mean this document, including all the attached Schedules and any amendments.
“Confidential Information” shall mean any business, marketing, sales, financial (including pricing) or technical information, including, without limitation, any information relating to present or future business affairs, operations, methods, techniques, operations, financial condition, reports, research, product plans, products, developments, processes, models, designs, drawings, formulae, markets, software (including source and object code), algorithms, business plans or agreements with third parties and all other information of any kind which may reasonably be deemed confidential or proprietary, disclosed by one party (the “Disclosing Party”) to the other (the “Receiving Party”), whether such information is in written, oral, graphic or machine-readable form and which is designated or identified as “confidential”, “proprietary” or in some other manner prior to the disclosure, to indicate its confidential nature. Oral disclosures will be confirmed in written format 30 days following the disclosure. Notwithstanding the foregoing, “Confidential Information” shall not include information which:
has been or becomes published or is now or is in the future in the public domain through no action of the Receiving Party;
prior to disclosure hereunder, is within the legitimate possession of the Receiving Party as evidenced by competent written proof;
subsequent to disclosure hereunder, is lawfully received from a third-party having rights therein without restriction of the third party’s rights to disseminate the information and without notice of any restriction against its further disclosure; or
is independently developed or acquired by the Receiving Party through persons who have not had, either directly or indirectly, access to or knowledge of such Confidential Information.
“Corrective Maintenance” shall mean:
making adjustments (Upgrades and configuration changes) to Redline Products; and
replacing any parts or components of the Redline Products, required to restore the Redline Products to operate in accordance with Redline specifications.
“Covered Equipment” means the Redline Products listed in Schedule B to this Agreement.
“Disclosing Party” means the Party disclosing Confidential Information.
“Documentation” shall mean user manuals, training materials, product descriptions and specifications, technical manuals and supporting materials and other printed information relating to the Redline Products, in effect and generally available from Redline as of the date the Redline Product is shipped to Customer.
“Effective Date” shall mean the date of Customer’s signed acceptance of this Agreement and the counter signature by an officer of Redline. The agreement becomes active and service will be rendered once the payment has been received from Customer by Redline.
“End-User(s)” shall mean any party that uses Redline Products for its own use and not for redistribution.
“Excluded Causes” shall mean:
Defects or damage resulting from improper / non-standard use of the product;
Defects or damage occurring from improper or unauthorized testing, operation, maintenance, service, repair, installation, alteration, modification or adjustment;
Defects or damage resulting from environmental impact (e.g. lightning, power surge, water ingress, etc.);
Illegal or unauthorized alteration of the products’ software / firmware; and / or
Normal and customary wear and tear.
“Excluded Maintenance” shall mean any Support Services required to restore any defective or damaged Redline Products to operate in accordance with Redline specifications where the defect or damage results from or is caused by any of the Excluded Causes.
“Hardware” shall mean equipment included as part of the Redline Products.
“Intellectual Property Rights” shall mean all forms of intellectual property rights and protections that may be obtained for, or may pertain to, the Redline Products, Confidential Information, Documentation and Marks and may include without limitation:
All right, title and interest in and to all Letters Patent and all filed, pending or potential applications for Letters Patent, including any re-issue, re-examination, division, continuation or continuation in part applications throughout the world now or hereafter filed;
All right, title and interest in and to all trade secrets, and all trade secret rights and equivalent rights arising under common law, provincial law, Federal law and laws of foreign countries;
All right, title and interest in and to all mask works, copyrights other literary property or authors rights, whether or not protected by copyright or as a mask work, under common law, provincial law, Federal law and laws of foreign countries; and
All right, title and interest in and to all proprietary indicia, trademarks, trade names, symbols, logos and / or brand names under common law, provincial law, Federal law and laws of foreign countries.
“List Price” shall mean the price for Redline Products as set forth in Redline’s then-current published price list or manufacturer’s suggested retail price (“MSRP”).
“Marks” shall mean all proprietary indicia, trademarks, trade names, symbols, logos and / or brand names Redline may adopt from time to time to identify Redline, the Redline Products or any related parties or materials.
“Material Defect(s)” shall mean any reported malfunction, error or other defect in a Redline Product that:
can be reproduced by Redline; and
constitutes a substantial non-conformity with the Specifications for such Redline Product.
“Parties” or “Party” shall mean Redline and / or Customer.
“Preventive Maintenance” shall mean:
Testing that the Redline Products are functional; and
Making any adjustments as may be required to ensure the Redline Products remain operating in accordance with Redline specifications.
“Purchase Price" shall mean the amount to be paid by Customer for the Redline Products.
“Receiving Party” means the Party receiving Confidential Information.
“Redline Product(s)” shall mean the products, including Hardware, Software, Documentation and Support Services, or any part thereof, not included in or pertaining to Redline’s legacy products listed as “manufacturing discontinued” or “end of life” as documented on Redline’s website, authorized by Redline for purchase by Customer based on this Agreement and its schedules or Amendments.
“Software” shall mean each software program in machine readable object code form included as part of the Redline Products.
“Specifications” shall mean the published specifications applicable to the Redline Products that are in effect as of the date the Redline Products are shipped to Customer. During the Term, when Redline substantially amends the Specifications, Redline shall inform Customer of the revised Specifications.
“Support Services” shall mean the Preventive and Corrective Maintenance defined above and further described in Schedule A to this Agreement.
“Term” shall mean the period beginning on the Effective Date and terminating on the date this Agreement is terminated under Article 9.
"Work" shall mean the activities, services, goods, equipment, matters and things required to be done, delivered or performed by Redline under the Agreement.
SECTION 2 - SUPPORT SERVICES
Redline will perform Support Services as described in Schedule A for the Redline Products listed in Schedule B to this Agreement.
Redline warrants to the Customer that the Support Services will be performed:
by an appropriate number of suitably qualified and experienced personnel;
using reasonable skill and care; and
in accordance with all applicable laws and regulations in force from time to time.
SECTION 3 - CUSTOMER OBLIGATIONS
3.1. The Customer shall:
The Covered Equipment, any associated software and equipment are installed and operated according to Redline specifications and recommendations;
All upgrades or engineering changes to Covered Equipment, associated software and equipment specified or recommended by Redline have been procured by Customer and properly installed;
A continuous, uninterrupted and suitable power supply and temperature, humidity and other environmental conditions recommended by Redline have been implemented and maintained;
Suitable surge protection devices have been implemented to protect the Covered Equipment from electrical power surges;
No other equipment or software having an adverse impact on the Covered Equipment have been introduced;
No repair attempts or other changes have been made to Covered Equipment, other than by or with the express approval of Redline;
The Covered Equipment has not been mishandled, neglected, abused, vandalized, dropped, jolted, transported to another location, damaged by fire, lightning or water (especially including damage caused by spilled beverages), or otherwise subjected to unusual electrical or physical stress beyond Redline’s specified operating capabilities;
Customer removes or takes other precautions to protect all software, data and removable storage media prior to commencement of the Support Services, and
Customer periodically makes and stores in a safe place archival copies of all valuable data and software residing on or affected by the operation or malfunction of Covered Equipment.
At all reasonable times permit full and free access, either physically when on-site or electronically when remote, to the Redline Products listed in Schedule B to Redline and provide Redline with adequate and safe working space, and any other facilities that are reasonably required to enable Redline to perform the Support Services, including obtaining all necessary permits, authorizations, licenses, and consents for Redline to deliver the Support Services.
Cooperate with Redline and provide Redline with any information that is reasonably requested in the delivery of Support Services and ensure that such information is accurate in all material respects. At a minimum, Customer will provide Redline with sufficient information to establish entitlement, severity and priority for identified problems.
Use commercially reasonable efforts to isolate problems and reproduce any identified errors or malfunctions.
Take any steps reasonably necessary to ensure the safety of Redline’s personnel when working on-site, encompassing reasonable access, working space and facilities that include heat, air conditioning, ventilation, electric current, electric outlets, and access to a working telephone.
Identify to Redline on or before Agreement commencement, any requirement for the use of personal protective equipment (“PPE”) or other measures including, but not limited to, specific site safety training. Customer also agrees to provide such equipment and / or training as needed at no charge prior to the start of on-site Support Services.
3.2. The Customer agrees to act in a timely manner and to provide properly competent and qualified personnel with respect to its obligations under this Agreement and to any tasks to be undertaken by it, whether expressly set out in this Agreement or otherwise reasonably requested of it by Redline. Performance of the Support Services is provided on the assumption that the Customer and its personnel will fulfil their obligations and tasks on time and as stated.
3.3. If, as a result of any act or omission by the Customer or its personnel (howsoever caused) which is not directly and wholly caused by Redline (including the provision of any incorrect or inadequate information or data by the Customer), Redline is prevented or delayed from performing any of its obligations under this Agreement or the cost of such performance increases, then:
the time for performance of Redline’s obligations will be extended for a reasonable period;
the Customer will be responsible at its own cost for storing the Redline Products until the Redline Products are ready for performance of the Support Services; and
the Customer shall pay Redline on demand:
at Redline’s standard time and materials rates for any additional time spent and materials used by Redline with respect to any delays or extra work caused by such act or omission; and
all other reasonable costs, loss or damage which Redline sustains as a direct result of such act or omission.
3.4. The Customer shall neither on its own account nor in partnership or association with any person, firm, company or organization, or otherwise and whether directly during, or for a period of six (6) months after expiry or termination of this Agreement, solicit or entice away or attempt to entice away or authorize the taking of such action by any other person, any of Redline’s personnel who have worked on performance of the Support Services provided under this Agreement at any time during the term of this Agreement.
SECTION 4 - CONFIDENTIALITY
4.1. Non-disclosure. The Confidential Information shall:
be kept confidential by the Receiving Party and not disclosed to any third parties,
not be used by the Receiving Party in any way detrimental to the Disclosing Party, and
not be used other than in connection with the Support Services. The Receiving Party may disclose the Confidential Information to its affiliates and its affiliates’ directors, officers, employees, consultants and agents (collectively, “Representatives”) only if such Representatives need to know the Confidential Information in connection with the Support Services and are bound by confidentiality obligations similar to those contained herein.
The Receiving Party shall:
inform each of its Representatives receiving Confidential Information of the confidential nature of the Confidential Information and of this Agreement,
direct its Representatives to treat the Confidential Information confidentially and not to use it other than in connection with the Support Services, and
be responsible for any improper use of the Confidential Information by the Receiving Party or its Representatives.
Without the prior written consent of the Disclosing Party, the Receiving Party will not, and will direct its Representatives not to, disclose to any person that the Confidential Information has been made available to it or that the Support Services are taking place.
4.2. Care and Return of Confidential Information. The Receiving Party shall provide at least the same care to avoid disclosure or unauthorized use of the Confidential Information as it generally provides to protect its own proprietary information, which shall, in all events, equal or exceed a standard and level of care generally recognized as being reasonable for the protection of highly confidential information. All Confidential Information shall be retained by the Receiving Party in a place with access limited only to the Receiving Party’s Representatives who reasonably need to know the Confidential Information in connection with the Discussions. Upon the request of the Disclosing Party, the Receiving Party shall destroy or return to the Disclosing Party, or in the case of electronic, magnetic or digital media, at the election of the Disclosing Party, erase or render unreadable, all materials furnished which contain Confidential Information of the Disclosing Party, including, without limitation, documents, drawings, models, prototypes, sketches, designs, lists, papers, magnetic media and other tangible media.
4.3. No Licenses. Neither the execution of this Agreement nor the furnishing of any information under this Agreement shall be construed as granting any party or any of its Representatives, either expressly or by implication, any license or right to use any Confidential Information for its own benefit or the benefit of any other person, firm or entity, and each party expressly agrees not to so use any such information. Nothing contained in this Agreement shall be construed as conferring any rights, by license or otherwise, to any invention, discovery, or improvement made, conceived or acquired prior to, during or after the date of this Agreement.
4.4. Remedies. Each party acknowledges that the Disclosing Party would be irreparably harmed by a breach hereof by the Receiving Party or its Representatives and that it is difficult to estimate damages resulting from such a breach and, consequently, the non-breaching party shall be entitled to seek injunctive or other equitable relief to prevent a breach or continued breach of this Agreement, and to secure the enforcement of this Agreement, without foregoing any legal relief to which the non-breaching party may be entitled to recover.
4.5. Term. The restrictions and obligations of this Agreement relative to the use or disclosure of Confidential Information shall survive the termination of this Agreement for a period of five (5) years.
4.6. Disclosure Under Court Order or Subpoena. Should applicable law or any rule or regulation of any governmental entity of competent jurisdiction require disclosure of Confidential Information of the Disclosing Party in the Receiving Party’s possession, custody or control, the Receiving Party shall use commercially reasonable efforts to:
give at least ten (10) days prior written notice of such disclosure to the Disclosing Party;
limit such disclosure to the extent practicable; and
make such disclosure only to the extent so required.
SECTION 5 - PATENT AND COPYRIGHT INDEMNITY
5.1. Indemnification. Redline will defend, at its expense, any action brought against Customer to the extent that it is based on a claim that the use of the Support Services infringes any United States, Canadian and European Union (“EU”) patent or copyright, and Redline will indemnify Customer from any costs, damages and fees finally awarded against Customer in such action which are attributable to such claim, provided Customer notifies Redline promptly in writing of any claim, to permit Redline to solely defend, compromise or settle the claim and to provide all available information and assistance regarding such claim. Redline shall not be liable for any costs, damages, settlement or fees incurred by Customer on such action or claim unless authorized in writing by Redline.
5.2. Remedies. Should any Support Services become, or in Redline’s opinion be likely to become, the subject of a claim for infringement of a United States, Canadian or EU patent or copyright, Redline may
procure for Customer, at no cost to Customer, the right to continue to use the Support Services,
replace or modify the Support Services at no cost to Customer, to make such non-infringing, provided that the replacement or modified Support Services provide substantially similar functionality and performance; or
if neither (a) or (b) are practical, terminate the right to use such Support Services and grant Customer credit for any pre-paid Support Services that have not been rendered at the time of the termination.
5.3. Limitation. Redline shall have no liability for any claim based upon:
Defects or damage resulting from improper and / or non-standard use of the Redline Products;
Defects or damage occurring from improper or unauthorized testing, operation, maintenance, service, repair, installation, alteration, modification or adjustment;
Defects or damage resulting from environmental impact (e.g. lightning, power surge, water ingress, etc.);
Illegal or unauthorized alteration of the products’ software / firmware; and / or
Normal and customary wear and tear.
5.4. Entire Liability. This Article 5 states the entire liability of Redline with respect to infringement of any intellectual property rights by the Support Services and Redline shall have no additional liability with respect to any alleged or proven infringement.
5.5. Notification of Unauthorized Use. Customer shall promptly notify Redline in writing upon its discovery of any unauthorized use or infringement of the Redline Products, Documentation or Confidential Information, or Redline’s Intellectual Property Rights with respect thereto. Redline shall have the sole and exclusive right to bring an infringement action or proceeding against any infringing third party, and, in the event that Redline brings such an action or proceeding, Customer shall cooperate and provide full information and assistance to Redline and its counsel in connection with any such action or proceeding.
5.6. Indemnification by Customer. Except as provided in Articles 6 and 8, Customer will defend, at its expense, any action brought against Redline to the extent that it is based on a claim by a third party based on the actions or omissions of Customer and Customer will indemnify Redline from any costs, damages and fees incurred by Redline from such claim.
SECTION 6 - LIMITATION OF LIABILITY
Redline’s liability arising out of this Agreement shall be limited to the amount paid by Customer to Redline, for the Support Services. In no event shall Redline be liable to Customer or any other entity for any special, consequential, incidental, or indirect damages, including lost profits, lost data, or lost goodwill however caused. These limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.
SECTION 7 - INVOICING AND PAYMENT
Commencing on the Effective Date, the Customer shall pay to Redline the monthly recurring charges and any non-recurring charges incurred.
The monthly recurring charges will be invoiced in advance at the beginning of each month. If the Effective Date occurs on a date other than the first day of a calendar month, the first monthly recurring charges shall be reduced to an amount equal to the remaining days of the month in which the Effective Date falls (including the Effective Date) multiplied by a rate equal to one-thirtieth (1/30th) of the monthly recurring charges. Redline shall invoice any non-recurring charges on and from the Effective Date, but reserves the right to invoice earlier if the Customer cancels a service or Redline terminates or cancels a service for the Customer's breach. Redline shall invoice the non-recurring charges on the basis set out in the corresponding purchase order (“PO”).
The monthly recurring charges for Support Services may be aggregated and invoiced on a periodic basis other than monthly. Apart from the monthly recurring charges, if the PO specifies that additional charges may be incurred due to the actual usage of Support Services by Customer (“Extra Charge”), Redline reserves the right to invoice the Customer an Extra Charge at the end of each calendar month following the relevant Effective Date.
The Customer shall pay each invoice issued pursuant to this Agreement within thirty (30) calendar days of the date of the invoice (“Due Date”).
In addition and without prejudice to any other remedies Redline may have, if the Customer fails to pay any amount when due, Redline may charge interest on the unpaid balance compounded daily from the Due Date until the date paid at 1½% per month or the maximum legal rate, whichever is lower. Redline may also net or set-off amounts payable by Redline to the Customer under this Agreement or otherwise against any unpaid balance if the Customer fails to pay any amount when due.
The charges payable by the Customer under this Agreement are exclusive of, and the Customer shall assume and pay promptly, all applicable taxes, including value added tax and consumption taxes directly comparable therewith such as goods and sales taxes, including any non-deductible taxes and duties on services rendered by subcontractors of Redline, and duties or levies imposed by any authority, government or government agency (except income tax attributable to Redline). The payment of such sums shall be made in full without any set-off, deduction or withholding whatsoever.
If for any reason Redline receives in respect of any obligation of the Customer under this Agreement an amount (the "received amount") in a currency other than United States dollars (“USD”), the received amount shall only constitute a discharge of the Customer’s obligation to the extent the amount (the "converted amount") in USD which Redline is able to purchase with the received amount (at the prevailing market rate in the normal course of Redline’s business as soon as reasonably possible after receipt) is at least the amount of USD due to Redline. If the converted amount is less than the amount in USD expressed to be due to Redline, the Customer shall forthwith on demand pay to Redline an amount in the contractual currency equal to the deficit and reimburse Redline for all costs and expenses incurred in converting the received amount to USD.
Without limiting Redline’s other rights and remedies under this Agreement, Redline may suspend all or part of the applicable Support Services with written notice if any part of an undisputed invoice related to those Support Services remains unpaid for more than fourteen (14) calendar days after the Due Date.
Starting on and from the first anniversary of the Effective Date, Redline may, by providing fourteen (14) calendar days' written notice, increase the monthly recurring charges once annually by the prevailing Consumer Price Index ("CPI") (as determined at the date of the notice).
Redline reserves the right to charge for performance of services, maintenance, support or other activities requested by Customer that are outside of this Agreement.
SECTION 8 - LIMITED WARRANTY
8.1. Support Services Warranty. Unless agreed otherwise in writing by Customer and Redline, Redline warrants that each Redline Product that benefits from Support Services shall have a warranty period that lasts the greater of
the remaining portion of the original warranty period; or
ninety (90) days.
8.2. Services Warranty. Redline warrants that it will perform the Support Services hereunder in a manner that is consistent with industry practice.
Customer’s exclusive remedy for any breach of this warranty shall be for Redline, upon receipt of written notice, to use commercially reasonable efforts to cure such breach, or, failing any such cure in a reasonable period of time, to return the professional fees paid to Redline hereunder with respect to the services giving rise to such breach.
8.3. Limitations. The foregoing warranties apply only to Customer and to its End-Users. Redline shall provide warranty service only for the most-current version of the Redline Products. Redline shall have no obligation to provide warranty services if a Material Defect in the Redline Product is caused by:
a malfunction of non-Redline hardware or software;
modification of the Redline Product not made by Redline;
operator error; or
use of the Redline Product that is not in accordance with the operating instructions for the Redline Products.
Redline will accept warranty returns only from Customer and Customer must arrange all details of such returns with End-Users eligible under the foregoing warranties. Redline has no liability for general, consequential, incidental or special damages. These include lost profits and the cost of the installation or removal of any Redline Products, the installation of repaired or replacement Redline Products, and any inspection, testing, or redesign caused by any defect or by the repair or replacement of Products arising from a defect in any Redline Product.
8.4. Disclaimer. EXCEPT FOR THE WARRANTIES STATED IN THE ABOVE, REDLINE DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES ON REDLINE PRODUCTS OR SERVICES FURNISHED HEREUNDER, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ANY “ACTS OF GOD” INCLUDING, BUT NOT LIMITED TO, LIGHTNING DAMAGE WILL NOT BE COVERED UNDER THIS AGREEMENT AND ANY DAMAGE TO THE EQUIPMENT AS A RESULT OF AN “ACT OF GOD” WILL NOT BE COVERED UNDER THE REDLINE WARRANTY POLICY. THE CUSTOMER WILL BE BILLED FOR THE PRICE OF THE PRODUCT FOR ANY PRODUCT RETURNED TO REDLINE THAT IS DEEMED TO HAVE FAILED AS A RESULT OF AN “ACT OF GOD”.
SECTION 9 - TERM AND TERMINATION
9.1. Term. This Agreement shall continue in force for an initial term described on the front page of the RedCare Support Services Agreement attached hereto. Upon the expiration of this initial term, this Agreement may be extended for an additional one (1) year term (“Renewal Terms”) with written consent or extension by Redline unless the Agreement has previously been terminated under this Article 9. Renewal requests received by Redline more than ninety (90) days following contract expiration may be subject to a reinstatement fee. Redline reserves the right to confirm the health condition of the equipment prior to accepting service reinstatement. Equipment not meeting the minimum health requirement must be repaired at the Customer’s expense prior to service reinstatement. All equipment maintenance must be continuous with no gaps in coverage period. Reinstatement will be retroactive to the day following the last covered date.
9.2. Termination for Default. In the event of any material breach of this Agreement, the non breaching Party may terminate this Agreement by giving thirty (30) days prior written notice to the other Party; provided, however, that this Agreement shall not terminate if the other Party has cured the breach prior to the expiration of such thirty (30) day period, or if such breach cannot be cured within such thirty (30) day period, the other Party has taken steps within such thirty (30) day period to cure the breach and thereafter cured such breach as soon as practicable.
9.3. Termination for Insolvency. This Agreement shall terminate, without notice,
upon the institution by or against either Party of insolvency, receivership or bankruptcy proceedings,
upon either Party’s making an assignment for the benefit of creditors, or
upon either Party’s dissolution or ceasing to do business.
9.4. Order of Precedence. If a conflict occurs between this Agreement and any Appendix, Exhibit or Schedule, unless otherwise specifically stated in the Appendices, Exhibits or Schedules, the order of precedence shall be:
Schedule A – Support Services;
Schedule B – List of Covered Redline Products;
Schedule C – Price; and
The terms and conditions contained in or related to Customer’s purchase orders shall have no bearing on this Agreement or any Work performed by Redline or Customer in association with this Agreement.
9.5. Survival. The provisions of Redline Communications Inc. Standard Terms and Conditions of Sale (https://rdlcom.com/sales-terms/) and Articles 4, 5, 6 and 8 of this Agreement shall survive the termination of this Agreement for any reason.
SECTION 10 - GENERAL TERMS AND CONDITIONS
10.1. Independent Contractors. The relationship of Redline and Customer established by this Agreement is that of independent contractors, operating at arms-length, and nothing contained in this Agreement shall be construed to
give either Party the power to direct and control the day to day activities of the other,
constitute Redline and Customer as partners, joint venturers, co owners or otherwise as participants in a joint or common undertaking, or
allow Customer to create or assume any obligation on behalf of Redline for any purpose whatsoever.
10.2. Governing Law. This Agreement shall be governed by and construed under the laws of the Province of Ontario, Canada, without reference to conflicts of law principles.
10.3. Entire Agreement. This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter herein and merges all prior discussions between them. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by both Parties.
10.4. Force Majeure. Except for the obligation to make payments, non-performance of either Party shall be excused to the extent the performance is rendered impossible by strike, fire, flood, terrorism, disease, epidemic, pandemic, shortage of labour, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of and is not caused by the negligence of the nonperforming Party.
10.5. Non-assignability and Binding Effect. Neither Party shall assign this Agreement to any third party without the prior written consent of the other Party, and attempted assignments shall be void and without effect, provided, however, that the merger or consolidation of one Party into, or the sale of all or substantially all of the assets of such Party to, a third party shall not be deemed to be an assignment. Subject to the foregoing, this Agreement shall be binding upon and enure to the benefit of the Parties hereto and their permitted successors and assigns.
10.6. Legal Expenses. The prevailing Party in any legal action brought by one Party against the other and arising out of this Agreement shall be entitled, in addition to any other rights and remedies it may have, to reimbursement for its expenses, including court costs and reasonable attorneys’ fees.
10.7. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.
10.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.