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. 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.