Terms & Conditions
1. CONTRACT – These terms and conditions, together with any other supplemental written terms we give you pertaining to your order or service agreement, form a contract between you, the buyer of certain equipment (including parts and other merchandise), software license, and/or services (the "Buyer"), and us, Tricolops Technology Inc on the quote, order acknowledgement, service agreement, invoice, or other order document we give you ("Tricolops"). The rights and obligations identified in this contract apply to Buyer's purchase of the equipment, software license, and services identified in the Tricolops order documents. If Buyer's order includes software subject to an end user license agreement ("EULA"), the terms of the EULA also apply and have priority over these terms. Terms and conditions that are different or changed from these only apply if both parties agree to them in writing. Buyer's receipt of equipment, software license, and/or services establishes its unqualified acceptance of these terms and conditions and any applicable EULA.
2. GRANT OF LICENSE – If there is no EULA, Tricolops grants Buyer a non-exclusive, non-sublicensable, and non-transferable right to use the software ordered for Buyer's internal purposes only. Buyer may not reverse engineer, decompile, or disassemble any software it licenses from Tricolops.
3. SHIPPING, HANDLING, AND DELIVERY – Shipping terms are stated on the Tricolops order documents. If no shipping terms are stated, shipping is Ex Works. Delivery and service dates are estimates unless Tricolops expressly agrees in writing to a fixed date or schedule. Tricolops will use commercially reasonable efforts to meet delivery and service date estimates.
4. RETURNS – Equipment, or licenses on software, that is engineered, modified, customized, or configured especially for Buyer cannot be returned unless there is a valid warranty claim and the equipment or software cannot be repaired. Buyer cannot return equipment that is altered, damaged, used, or previously installed. Unless Tricolops makes a shipping error or Buyer makes a valid warranty claim, unused off the shelf equipment may be returned only if Buyer contacts Tricolops for approval and return instructions prior to returning anything. At its discretion, Tricolops may charge Buyer a restocking fee for any return.
5. CANCELLATION – With Tricolops’ written approval, Buyer may cancel its order prior to the shipment of equipment or software, or prior to the beginning of a service contract. Tricolops may cancel Buyer's order or require payment in advance if Buyer transfers assets for the benefit of its creditors, or if Tricolops has reason to believe Buyer is unwilling or unable to perform its commitments. If Buyer cancels its order other than as permitted by this section, Buyer must pay Tricolops all amounts due pursuant to the order. If Buyer's order is cancelled for any reason Buyer will pay Tricolops for reasonable costs and expenses (including engineering expenses and all commitments to Tricolops' suppliers and subcontractors) incurred prior to Tricolops receiving notice of cancellation, plus Tricolops' usual rate of profit for similar work. The minimum cancellation charge is 15% of the price.
6. WARRANTIES: ABSENT A SEPARATE WRITTEN WARRANTY TRICOLOPS ISSUES BUYER, TRICOLOPS EXPRESSLY WARRANTS ITS EQUIPMENT, SOFTWARE, AND SERVICES SOLELY AS SET FORTH IN THIS SECTION. TO THE FULLEST EXTENT ALLOWED BY LAW, TRICOLOPS DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE). THESE WARRANTIES MAY BE TRANSFERRED TO A SUBSEQUENT PURCHASER OF EQUIPMENT OR A SUBSEQUENT LICENSEEE OF SOFTWARE ONLY WITH TRICOLOPS’ PRIOR WRITTEN CONSENT. IN ADDITION, THE FOLLOWING CONSTITUTES BUYER'S SOLE AND EXCLUSIVE REMEDIES FOR ANY BREACH BY TRICOLOPS OF THIS WARRANTY.
A. EQUIPMENT – Tricolops warrants that under normal use: (i) its equipment, except for replacement parts, will be free from defects in workmanship and materials for 2 years from the date of original installation/use, or 18 months from the date it is shipped from Tricolops, whichever occurs first; and (ii) replacement parts will be free from defects in workmanship and materials for 90 days from delivery. Should the defects described be found and reported during the term of the warranty, Tricolops will, at its option, refund the purchase price, replace the equipment, or correct the defects by furnishing replacement parts and labor free of charge.
B. SOFTWARE – If it is properly installed according to specifications and system requirements, Tricolops warrants the software it develops will perform substantially the functions described in the software documentation it provides or, in the absence of any software documentation, as otherwise agreed in writing. Tricolops does not warrant that the software is error-free, that Buyer will be able to operate the software without interruption, that third party interfaces or systems connected to the software will operate without interruption, or that the software will be free of vulnerability to intrusion or attack. Absent a separate warranty Tricolops communicates to Buyer in writing, the warranty period for equipment operating software is the same as the warranty period for the equipment it's purchased with. The warranty period for any other software or software feature is 90 days from the date of delivery. For avoidance of doubt, our warranty includes bug fixing, but excludes any new features. Except as may be agreed otherwise in writing, Tricolops provides no warranty for software specifically developed, amended, or customized for Buyer. These warranties also apply to any new releases and service Tricolops may deliver in the future.
C. SERVICE – Tricolops warrants that services will be performed in a workmanlike manner in conformity with standard industry practice. Should any nonconformity be detected within 30 days after the work is completed and Buyer gives Tricolops prompt written notification, Tricolops will supply the necessary service, direction, or consultation to correct the nonconformity.
D. GENERAL – The foregoing warranties are further subject to the following general conditions: (i) Consumables, accessories, normal wear and tear, wear parts, and perishables are expressly excluded. (ii) These warranties do not apply where Tricolops’ equipment and/or software has been subjected to: accident, alteration, misuse, abuse, failure by Buyer to ensure proper storage, operation and/or maintenance, installation or servicing by personnel Tricolops doesn't authorize, the addition or supply of equipment or software not approved for incorporation into Tricolops equipment or software, environmental or operational conditions, or software or interfacing Buyer or a third party provide and any other causes Tricolops is not responsible for. (iii) Tricolops does not warrant the calibration of any equipment. Tricolops does, however, warrant its equipment to be capable of being adjusted to meet Tricolops's printed specifications, if any, for accuracy for the period of warranty above stated when properly installed and used. (iv) If Tricolops repairs equipment, such repair work will not extend existing nor generate new warranty coverage for the equipment as a whole or for those parts not repaired or replaced by Tricolops. Unless Buyer gives Tricolops written notice in advance, and Tricolops agrees its warranty still applies, all warranties are void if product is moved outside the country Tricolops delivered it to.
E. METHODS OF CORRECTION OF DEFECTS DURING WARRANTY – Tricolops may attempt to diagnose and resolve defects over the telephone or electronically. Certain equipment contains remote support capabilities for direct problem reporting, remote problem determination, and resolution. When Buyer contacts Tricolops for warranty work, Buyer must follow the problem determination, resolution, and procedure that Tricolops specifies. Tricolops may require return of the part or equipment to its depot for service or to assist in problem determination. If Tricolops determines on-site work is required, a service technician will be scheduled. If Buyer gives Tricolops notice of a defect and requests on-site work when the defect could have been remedied remotely, or if Tricolops responds to Buyer's notice of defect and no defect is found for which Tricolops is liable, Tricolops is entitled to compensation for any work performed and costs it incurred as a result of Buyer's request. Failure to install and use available remote connectivity tools and equipment for direct problem reporting, remote problem determination, and resolution may result in increased response-time and additional costs to Buyer.
7. PATENT INFRINGEMENT – Seller makes no warranty or representation that the use or sale of equipment and services of Tricolops’ design, whether alone or in combination with other products, will not infringe the claims of any letters patent, trademarks, registered designs or other proprietary rights of any party. Upon receiving notice from Buyer of an allegation that equipment, software, or a part infringes any patent, Tricolops may, at its expense and option, either: (i) obtain for Buyer the right to continue using such equipment, software, or part; (ii) replace the equipment, software, or part with non-infringing equipment, software, or part; (iii) modify the equipment, software, or part so that it becomes non infringing; or (iv) remove the equipment, software, or part and refund the purchase price and all related transportation and installation costs. This is Tricolops' entire liability to Buyer for patent infringement.
8. REGULATORY LAWS AND OR STANDARDS – Tricolops makes no promise or representation that its equipment will conform to any laws, regulations, codes, or standards, except as explicitly specified and agreed upon in writing by an authorized officer.
9. PRODUCT MANUALS – It is essential for Buyer to follow the installation information, product and system manuals, operating and safety instructions, and other documentation and specifications Tricolops provides with the equipment; Tricolops disclaims any liability, including warranty liability, if Buyer does not.
10. INTELLECTUAL PROPERTY – Unless Tricolops expressly agrees in a writing to the contrary, Tricolops does not transfer to Buyer any right of ownership in any patents, copyrights, trademarks, technologies, designs, specifications, drawings, or other intellectual property relating to the equipment, software, and/or services. Except as otherwise provided in an applicable EULA, the software license rights granted are non-exclusive, non-sublicensable, non-transferable, and limited to use for agreed purposes only.
11. DISCLAIMER OF DAMAGES–IN NO EVENT WILL TRICOLOPS BE LIABLE TO BUYER OR ANY OTHER PARTY FOR ANY TYPE OF SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES, WHETHER SUCH DAMAGES ARISE OUT OF OR ARE A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND REGARDLESS OF WHETHER THE CONTRACT WOULD FAIL OF ITS ESSENTIAL PURPOSE. Such damages include but are not limited to loss of profits or revenues, loss of use of the equipment or associated equipment and software, cost of substitute equipment or software, facilities, down time costs, increased construction costs, damage to reputation, loss of customers, or claims of Buyer's customers or contractors for such damages. Buyer may not transfer, assign, or lease the equipment or software sold or licensed under this contract to any third party without first securing from them the protection afforded to Tricolops in this section.
12. LIMITATION OF LIABILITY – Tricolops is not liable for any loss, claim, expense, or damage caused by, contributed to, or arising out of the acts or omissions of Buyer or third parties, whether negligent or otherwise. In no event will Tricolops' aggregate liability for any and all types of damages or losses related to this contract or the equipment, software, or services sold, licensed, or delivered pursuant hereto exceed the cost of the item giving rise to the claim, whether based in contract, warranty, indemnity, or tort (including negligence). And any suit arising hereunder must be commenced within one year from the date on which the cause of action accrues.
13. NO RESPONSIBILITY FOR GRATUITOUS INFORMATION OR ASSISTANCE – Except for fraudulent misrepresentations, Tricolops is not responsible for any information, assistance, or advice given to Buyer if such information, assistance, or advice was not required by this contract.
14. FORCE MAJEURE – Except for payments owed by Buyer, the period for performance of this contract will be reasonably extended if a party defaults or is delayed in performing their obligations under this contract, for reasons beyond their reasonable control. Strikes, insurrection, acts of God, war, terrorist activities, emergencies, shortages or unavailability of materials, weather, change in law, and other similar causes are among the reasons, but are not the only reasons, that are beyond a party's reasonable control.
15. EXPORT CONTROL - Buyer acknowledges that the equipment or software may include technologies and software that are subject to export control regulations in Canada, the United States of America, or other countries in which the equipment or software is delivered or used. Buyer is solely responsible for complying with these restrictions if it exports or re-exports the equipment or software. Buyer agrees to indemnify and hold Tricolops harmless from any violation of export restrictions by Buyer or Buyer's employees, consultants, agents, or customers cause.
16. INTERPRETATION – If any of these terms and conditions conflicts with or is invalid under applicable law, these terms and conditions will be read as if such term or provision was not included. The invalid, illegal, or unenforceable provision will be deemed automatically modified and, as so modified, included in these terms and conditions. Such modifications will be made to the minimum extent necessary to make the provision valid, legal, and enforceable. Tricolops' waiver or excuse of any noncompliance with these terms and conditions does not constitute a waiver or excuse of any prior or subsequent noncompliance.
17. TRACEABILITY – Buyer acknowledges that Tricolops is entitled to retrace or recall equipment, or take other corrective actions to the equipment. Buyer will actively support Tricolops when this need arises. If Buyer resells equipment to a third party, it will be considered the distributor of the equipment under applicable laws and must assume all obligations relating thereto, including but not limited to the following: (i) keep all documents and information necessary to retrace or recall equipment sold to third parties for a minimum of 10 years; (ii) immediately inform Tricolops of any complaints or adverse incidents related to the equipment, and promptly comply with all directions Tricolops gives regarding the investigation or handling of the matter; and (iii) comply with all applicable storage and transportation duties.
18. CUSTOMER DATA – Buyer agrees Tricolops is entitled to use, process, and store, and allow a third party to use, process, and store on Tricolops's behalf, any data Tricolops obtains under this contract, in accordance with relevant laws.