1. Sale. Rainforest Automation Inc., a Canadian federal corporation (“Rainforest”), hereby agrees to sell to the party described as the buyer (the “Buyer”) in these General Terms and Conditions and the shipping documents, order form or invoice to which it is attached (collectively, this “Agreement”), and the Buyer hereby agrees to purchase from Rainforest, the products (the “Products”) described in this Agreement on the terms and conditions set forth below. Acceptance of the Products sold hereunder constitutes the Buyer’s agreement to be bound by the terms and conditions of this Agreement.
2. License to Software. Notwithstanding anything else in this Agreement, Rainforest only grants to the Buyer a limited license to use any software installed on the Products (the “Software”) in connection with the operation of the Products and as specified by Rainforest in its Products or user manuals (collectively, “Products Manuals”) and the Buyer acknowledges that its rights to the Software is limited to such limited license. Rainforest retains all other rights in and to the Software.
3. Purchase Price and Payments. When the order is place via Rainforest’s Web Store or any other associated Web Store (“Online Orders”), the Buyer will pay Rainforest the amount specified in this Agreement (the “Purchase Price”) via credit card. All payments under this Agreement will be made to Rainforest in United States dollars. For credit card payments, your credit card will be charged when the Product order is placed.
4. Past Due Amounts. If the Buyer fails to pay the Purchase Price or other amounts owing under this Agreement on the due date, the Buyer will pay interest on the amount due at the rate of 18% per annum, compounded on the last day of each and every month, provided that, notwithstanding the foregoing, the rate of interest payable under this Agreement will not exceed the highest rate of interest permitted by applicable law.
5. Taxes. The Buyer will be liable for, and will indemnify and hold harmless Rainforest from and against, all duties, tariffs, levies, taxes (including without limitation sales, use, goods and services, harmonized, value-added and withholding taxes), and other public charges arising in relation to the sale or delivery of the Products.
6. Delivery. Unless otherwise agreed in writing, Rainforest will deliver the Products using the delivery method and shipping address specified on the Online Order order form at time of purchase. Any time or date for delivery specified in this Agreement or provided to the customer online is an estimate only, and Rainforest will not be liable for the consequences of any delay.
7. Inspection and Acceptance. The Buyer will, not later than 5 business days following receipt of any of the Products, notify Rainforest of any discrepancies in the quantity or quality of those Products. If the Buyer fails to provide such notice to Rainforest within such time period, without prejudice to §11, those Products will be conclusively deemed to have been received and accepted by the Buyer without defects.
8. Restrictions Export, Resale and Use. The Buyer acknowledges that the Software may include encryption technology that may be subject to export, import and/or use controls by the Governmental Authorities (as defined below) by way of statute or regulation. The Buyer agrees that it will not, and will not permit any end-user or ultimate consumer of the Products to, export, import, use, transfer or re-export the Products except in compliance with all applicable laws and regulations of the governmental authorities with jurisdiction over the any country or other jurisdiction from which the Products are being exported or to which the Products are being imported (collectively, the “Governmental Authorities”). The Buyer represents to Rainforest that: (1) to the best of the Buyer’s knowledge it is eligible to receive the Products under applicable law; (2) it will not use the Products in any manner that would violate applicable laws; and (3) it will ensure that any end-users or ultimate consumers of the product are subject to all of the restrictions contained in this §8. Further, the Buyer covenants and agrees that it will not, and it will not permit any end-user or ultimate consumer of the Products to:
(a) sell the Products to any person of which it is reasonably apparent is a competitor of Rainforest or offers for license or sale any products similar to the Products; and
(b) reverse engineer, decompile, or disassemble the Software or the Products, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
9. Suspension of Delivery and Force Majeure. Rainforest will not be in breach of any of its obligations under this Agreement where the failure to perform or delay in performance is due, wholly or in part, directly or indirectly, upon the occurrence of any Act of God, acts of governmental bodies or agencies foreign or domestic, sabotage, fire, floods, earthquakes, explosions or other catastrophes, accidents, freight embargoes, delays occasioned by carriers, delays of a supplier of Rainforest, strikes, lockouts, labour unrest, labour shortages, manufacturing breakdowns or any other event beyond the control of Rainforest.
10. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED BY RAINFOREST IN THESE GENERAL TERMS AND CONDITIONS, RAINFOREST DOES NOT MAKE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY AS TO QUALITY, MERCHANTABILITY OR FITNESS FOR PURPOSE, CONCERNING ANY OF THE PRODUCTS, OR THEIR DESIGN, MATERIALS, WORKMANSHIP, LIFE, PERFORMANCE OR SUITABILITY, OR THE INFORMATION, SPECIFICATIONS OR MANUALS PROVIDED WITH THEM.
11. Warranty and Exclusion. Rainforest warrants that the Products will be free from defects in material and workmanship for a period of 1 year from the date the Products are delivered (the “Warranty Period”). If the Buyer discovers and notifies Rainforest in writing of any defect in material or workmanship before the expiry of the Warranty Period, then Rainforest may, at its option: issue a credit note for the defective Product; or repair or replace the Product; or provide the Buyer with replacement parts for the Product. The Buyer will, at its expense, return the defective Product or parts thereof to Rainforest. Rainforest will, at its expense, deliver the repaired or replaced Product or parts to the Buyer. The warranty provided for in this §11 will not apply if the Buyer is in default under this Agreement or if the Product or any part thereof (a) is damaged by misuse, accident, negligence or failure to maintain the same as specified or required by Rainforest in its Products Manuals, (b) is damaged by modifications, alterations or attachments thereto which are not authorized by Rainforest, (c) is installed or operated contrary to the instructions of Rainforest or any specification in the Products Manuals, (d) is opened, modified or disassembled in any way without Rainforest’s consent, or (e) is used in combination with items, articles or materials not authorized by Rainforest. The Buyer may not assert any claim that the Products are not in conformity with the warranty provided in this §11 until the Buyer has made all payments to Rainforest provided for in this Agreement.
12. Support. Rainforest will provide the Buyer with reasonable support and technical assistance with troubleshooting, installation, and diagnosing Products not performing in accordance with such Product’s specifications (“Support”). Rainforest will provide Support in English only, between the hours of 10:00 am and 5:00 pm Pacific Time, Monday to Friday (excluding any statutory holidays in British Columbia). During the period ending 90 days after the date the Buyer received the Products (the “Support Period”) Rainforest will provide the Support at no charge. Thereafter, Rainforest may, in its sole discretion, continue to provide Support to the Buyer at an additional Support charge per month. Buyer may arrange for a Rainforest representative to provide on-site Support (“On-Site Support”). Rainforest will provide On-Site Support on an as-available basis at the per-diem rate in effect per Rainforest Representative. Buyer will be responsible for the travel, accommodation, meal and living expenses of any Rainforest representative’s providing On-Site Support. For greater certainty, On-Site Support is not included in the Support Period. Rainforest will only provide the Support to the Buyer and is not obligated to provide support to any other party or end-user. Rainforest’s obligation to provide the Support ends at the end of the Support Period. The Buyer understands and agrees that it is the Buyer’s responsibility to:
(a) provide complete information and cooperate with Rainforest’s representatives when seeking Support. The Buyer understands and agrees that the completeness and accuracy of the information provided to Rainforest may affect Rainforests ability to assist the Buyer and to resolve any problems the Buyer is experiencing with the Products;
(b) cooperate with and provide all reasonable assistance to Rainforest’s representative providing the Support or the On-Site Support to resolve any problems it is experiencing with the Products; and
(c) use and maintain the products in accordance with Rainforest’s specifications and any Product Manuals.
13. Refunds and Exchanges. Products that are defective may be repaired or replaced in accordance with Rainforest’s standard warranty, the terms and conditions of which accompany your Product. Products may be returned for refund or exchange to Rainforest Automation within 30 days from date of purchase, by contacting Rainforest’s support team and requesting a Return Material Authorization at https://rainforestautomation.com/support/. Except for the foregoing, all sales are final and the Products may not be returned or exchanged for any other reasons.
14. Limitation and Release. IN CONNECTION WITH THIS AGREEMENT AND THE PRODUCTS, RAINFOREST WILL BE LIABLE TO THE BUYER ONLY FOR DIRECT DAMAGES SUFFERED BY THE BUYER AND ONLY UP TO A MAXIMUM AMOUNT EQUAL TO THE PURCHASE PRICE, AND THE BUYER HEREBY RELEASES RAINFOREST FROM ALL OTHER CLAIMS, LIABILITIES AND GREATER AMOUNTS INCLUDING WITHOUT LIMITATION, (a) ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST REVENUES, FAILURE TO REALIZE EXPECTED SAVINGS, OR OTHER COMMERCIAL OR ECONOMIC LOSSES OF ANY KIND, EVEN IF RAINFOREST HAS BEEN ADVISED, OR HAD REASON TO KNOW, OF THE POSSIBILITY OF SUCH DAMAGE, (b) ANY LIABILITY ARISING IN TORT, WHETHER OR NOT ARISING OUT OF RAINFOREST’S NEGLIGENCE, AND ALL LOSSES OR DAMAGES TO ANY PROPERTY OR FOR ANY PERSONAL INJURY OR ECONOMIC LOSS OR DAMAGE CAUSED BY THE CONNECTION OF A PRODUCT TO ANY OTHER DEVICE OR SYSTEM, AND (c) ANY DAMAGE OR INJURY ARISING FROM, OR AS A RESULT OF, MISUSE, ABUSE OR INCORRECT INSTALLATION, INTEGRATION OR OPERATION OF THE PRODUCTS BY PERSONS NOT AUTHORIZED BY RAINFOREST.
15. No Variations; Buyer Forms. If the Buyer issues any purchase order or similar instrument in respect of the Products containing terms and conditions, and Rainforest does not specifically acknowledge its acceptance of such terms and conditions in writing, such terms and conditions of the Buyer will be deemed to be of no force and effect and the Buyer will be deemed to have accepted the terms and conditions of this Agreement.
16. Termination. If: (a) the Buyer breaches this Agreement or any other of its obligations to Rainforest; or (b) any bankruptcy, insolvency, liquidation or reorganization proceedings are commenced with respect to the Buyer, or the Buyer is adjudged a bankrupt or becomes insolvent; or (c) the Buyer makes an assignment for the benefit of, or proposes an arrangement with, its creditors, or a receiver, a receiver and a manger or a like person is appointed in respect of all or any part of its assets; Rainforest will have the right to terminate (without prejudice to any accrued claims or rights) this Agreement upon giving written notice to the Buyer at its last known address or facsimile number.
17. Amendment and Waiver. No amendment, supplement, consent or waiver, express or implied, to or of any provision of this Agreement will be effective unless in writing signed by the parties hereto and then only in the specific instance and for the specific purpose given.
18. Assignment. The Buyer will not assign or transfer this Agreement or any of its rights hereunder without Rainforest’s prior written consent, which consent may be withheld at Rainforest’s sole discretion.
19. Law. This Agreement will be governed by and interpreted exclusively in accordance with the laws of the Province of British Columbia, without reference to provisions concerning conflicts of laws. Exclusive jurisdiction and venue for all actions arising out of this Agreement or the breach thereof (except for temporary equitable relief) will lie exclusively in the courts of British Columbia, subject to §20. The provisions of the United Nations Convention on Contracts for the Sale of Goods are hereby excluded.
20. Arbitration. If the Buyer is a foreign national and resides outside of Canada, then any controversy or claim arising out of or relating to this Agreement, or the breach thereof, will be settled by arbitration in accordance with the Commercial Arbitration Rules of the British Columbia International Arbitration Centre, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. The place of arbitration will be Vancouver, British Columbia, Canada. There will be one arbitrator.
21. Severability. If any provision of this Agreement is found by any court or arbitrator to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected thereby.
22. Entire Agreement. This Agreement constitutes the entire contract between the parties concerning the subject matter of this Agreement and supersedes all marketing brochures and other expectations, understandings, communications, representations and agreements, whether verbal or written, between the parties.
23. Precedence. If there arises any conflict or inconsistency between the provisions of the Agreement or its constituent parts or materials referred to herein, such conflict or inconsistency shall be resolved by reference to the following materials, in descending order of precedence: (1) these General Terms and Conditions, (2) any shipping documents or invoices to which they are attached, and (3) any Product Manuals.
24. Language of Agreement. It is the express wish of the parties that this contract and all documents in connection with this contract be drawn up in English. Il est la volonté expresse des parties que le présent contrat et tous les documents qui s’y rattachent soient rédigés enlangue anglaise.