General Terms And Conditions Of Sale

Exclusive Networks Canada, Inc. (“Exclusive Networks”) –Sales Terms and Conditions

1. GENERAL

1.1. Customer agrees that these terms and conditions of sale (“Sale Terms”) supersede all previous or contemporaneous communications, transactions, and understandings, whether oral, or written and shall apply to all Customer purchases of hardware, software and services sourced by Exclusive Networks from third parties (collectively “Products”) and provided by Exclusive Networks as a distributor authorized by those third-party suppliers. The Sales Terms may be modified by Exclusive Networks from time to time. Any terms and conditions of sale set forth by a Customer on a purchase order shall have no force or effect, it being agreed that the Sales Terms shall solely and exclusively govern any and all purchases of Products sold by Exclusive Networks to Customer. Customer is not permitted to cancel or modify any purchase order after Exclusive Networks has accepted such purchase order as set forth in Section 2.1 unless otherwise agreed to in writing by Exclusive Networks.

2. PRODUCTS AND SERVICES

2.1. Orders. Customer shall place purchase orders for Products by way of methods approved by Exclusive Networks. Customer warrants and represents to Exclusive Networks that any employee or agent placing such orders is authorized to commit the Customer to the order. Exclusive Networks agrees to make available, as applicable, and Customer agrees to purchase, as applicable, the Products described in Exclusive Networks’ order acknowledgment to Customer provided to Customer at the time of shipment. All account numbers and passwords that may be assigned by Exclusive Networks to Customer shall be maintained as confidential information by Customer and shall not be assigned to any third party by Customer. (the “Order”). Orders are effective at the time of acceptance by Exclusive Networks which for all Products except non-standard Products or those configured to Customer’s specifications, shall be the time of shipment. Exclusive Networks may decline or cancel Orders for any reason and at any time up to the time of shipment. Once accepted an Order is binding and may not be cancelled by Customer absent the written consent of Exclusive Networks. Orders for non-standard Products including Products configured to Customer’s specifications are non-cancellable and non-returnable.

2.2. Hardware. The hardware Products sold to Customer (“Hardware”) are sourced from third party suppliers, for whom Exclusive Networks is an authorized distributor. The description of the technical characteristics and documentation of such Hardware may be attached to the Order. Customer shall be responsible for obtaining such description from the third-party supplier should it not be attached to the Order. Exclusive Networks makes no independent representations or warranties associated with Hardware. Any indemnity obligations associated with the Hardware shall be solely and exclusively the obligation of the third-party Hardware supplier.

2.3. Software. The software licensed to Customer (“Software”) and embedded within Hardware or, as the case may be, provided on a stand-alone basis, are sourced from third party suppliers for whom Exclusive Networks is an authorized distributor. including authorization to flow down to Customer such suppliers’ license terms and conditions. The Software is subject exclusively to the license terms and conditions set forth by either the original equipment manufacturer (“OEM”) of Hardware or, if the Software is provided on a stand-alone basis, the third-party software provider. Exclusive Networks makes no independent representations or warranties associated with Software. Any indemnity obligations associated with the Software shall be solely and exclusively the obligation of the OEM or stand-alone software provider, as the case may be, and shall be sought directly from such parties by the Customer. Use of Software is limited to the number of licenses set forth on the Order. Customer hereby agrees to abide by any additional terms and conditions which may be applicable to such Software which are attached to the applicable Order(s) that accompany the Software or Hardware, or that are otherwise made available to Customer by the OEM or stand-alone Software provider. In the absence of such additional terms and conditions, the right to use the Software is limited to the implementation of a single copy. Further, Customer shall ensure that any authorized users of the Software are made aware of and comply with these restrictions.

2.4. Services. Any services, including but not limited to maintenance services in support of Products sold hereunder, and provided either by Exclusive Networks or by a third-party supplier, (“Services”) shall be set forth and described on the Order along with any associated fees.

3. WARRANTIES AND INDEMNITIES

3.1. CUSTOMER ACKNOWLEDGES AND AGREES THAT EXCLUSIVE NETWORKS IS NOT THE MANUFACTURER OF HARDWARE, PROVIDER OF SOFTWARE OR PROVIDER SERVICES TO CUSTOMER HEREUNDER AND AS SUCH EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND COVENANTS, EITHER EXPRESS, IMPLIED, OR STATUTORY WITH RESPECT TO ANY PRODUCT, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. ALL INFORMATION IS PROVIDED TO CUSTOMER “AS IS.” SOLELY AND EXCLUSIVELY TO THE EXTENT AUTHORIZED, EXCLUSIVE NETWORKS WILL PASS-THROUGH TO CUSTOMER TRANSFERABLE PRODUCT WARRANTIES, INDEMNITIES AND REMEDIES PROVIDED BY THE THIRD PARTY SUPPLIER, IF ANY, INCLUDING WARRANTIES OR INDEMNITIES FOR INTELLECTUAL PROPERTY INFRINGEMENT. SUCH PASS-THROUGH, IF ANY, SHALL BE CUSTOMERS’, ITS AFFILIATES AND THEIR RESPECTIVE CUSTOMERS’ SOLE AND EXCLUSIVE REMEDY RELATING TO THE PRODUCTS.
EXCLUSIVE NETWORKS IS NOT RESPONSIBLE FOR AND HAS NO DUTY TO DEFEND, INDEMNIFY, OR HOLD HARMLESS CUSTOMER, ITS AFFILIATES, THEIR CUSTOMERS, OR ANY OTHER PARTY, FROM OR AGAINST ANY CLAIMS, DEMANDS, OR CAUSES OF ACTION, INCLUDING ANY DAMAGES, COSTS OR EXPENSES INCURRED BY SUCH PARTIES, ARISING FROM OR RELATING TO THE ACTUAL OR ALLEGED PRODUCT LIABILITY, BREACH OF SECURITY, LOSS OF DATA, OR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS RELATED (DIRECTLY OR INDIRECTLY) TO THE MANUFACTURE, SALE, OR USE OF THE PRODUCTS. CUSTOMER WILL INDEMNIFY, DEFEND AND HOLD HARMLESS EXCLUSIVE NETWORKS, ITS AFFILIATES, AND ITS SUPPLIERS, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS FROM AND AGAINST ANY LIABILITIES, LOSSES, DAMAGES, COSTS OR EXPENSES OF ANY KIND (INCLUDING REASONABLE ATTORNEYS’ FEES AND DISBURSEMENTS) ARISING OR RESULTING FROM CLAIMS, DEMANDS, ACTIONS OR PROCEEDINGS OF ANY KIND ARISING FROM OR RELATING TO:

(i) CUSTOMER’S USE, MARKETING, DISTRIBUTION OR SALE OF PRODUCTS IN A MANNER OTHER THAN AS SPECIFIED IN PRODUCT/SERVICE DESCRIPTIONS OR SPECIFICATIONS;

(ii) EXCLUSIVE NETWORKS’ OR ITS SUPPLIER’S COMPLIANCE WITH DESIGNS, SPECIFICATIONS, OR INSTRUCTIONS PROVIDED BY CUSTOMER;

(iii) CUSTOMER’S BREACH OF THESE SALES TERMS OR ACTS OR OMISSIONS OF CUSTOMER, ITS AFFILIATES, ITS AGENTS, OR THEIR RESPECTIVE EMPLOYEES, OFFICERS OR DIRECTORS; OR

(iv) VIOLATION OR ALLEGED VIOLATION OF ANY APPLICABLE LAWS OR REGULATIONS BY CUSTOMER OR ITS AFFILIATES.

(v) BREACH OF ANY LICENSE TERMS OR CONDITIONS BY THE CUSTOMER OR END USERS;

(vi) ANY WARRANTIES GIVEN OR REPRESENTATIONS MADE BY THE CUSTOMER TO ANY END USER OR THIRD PARTIES;

(vii) BREACH OF SECTION 8 (EXPORT OF THE PRODUCTS BY CUSTOMER) SECTION 10 (COMPLIANCE WITH LAW AND COMMERCIAL RESTRICTIONS).

4. PRICES

Prices for Products offered by Exclusive Networks are as published by Exclusive Networks by way of electronic or print media, and are, prior to acceptance of an order by Exclusive Networks, subject to change. Unless specifically set forth in the Order, prices do not include any taxes, handling, shipping, transportation, duties or other charges or fees. Customer is responsible for all applicable duties, charges and fees. International, federal, state and local excise, sales, use, value-added and similar taxes and tariffs if applicable (“Taxes”) are to be borne by Customer unless Customer provides Exclusive Networks with a current and properly executed tax exemption certificate valid in the place of delivery. Unless otherwise specified or required by law, all prices will be quoted and billed exclusive of delivery charges and Taxes which will be billed as separate, additional items on Exclusive Networks’ invoices.

5. PAYMENT AND CREDITS

5.1. Customer agrees to pay the net invoiced amount by bank transfer or by check to Exclusive Networks in United States or in Canada currency within thirty (30) days from the date of Exclusive Networks’ invoice, which may be submitted to Customer in an electronic format. Customer agrees to waive all rights it may have in law, equity or otherwise to any setoff or deduction that may be associated with any payments due. Any payments or part thereof remaining unpaid after thirty (30) days shall, in Exclusive Networks’ discretion, be charged a 1.5% per month late fee beginning the second month following delivery of shipment, not to exceed the maximum charge permitted by law. In addition, Customer shall reimburse Exclusive Networks for all costs and expense associated with the collection of late payments from Customer. Except as otherwise provided under applicable law, any credits provided by Exclusive Networks will automatically expire if not used within 12 months.

6. DELIVERY; RISK OF LOSS

6.1. Unless otherwise agreed to by the parties in writing, all deliveries will be made EX WORKS (Incoterms 2020) Exclusive Networks’ designated location and per Exclusive Networks’ then-current shipping policy. The risk of loss passes to Customer upon tender by Exclusive Networks to the designated carrier (“Delivery Date”). Transportation charges are on a “pre-pay an add” basis unless otherwise agreed in writing by an authorized representative of Exclusive Networks. All delivery times are approximate. Exclusive Networks will endeavor to meet scheduled delivery dates but shall be excused from delays in delivery attributable in whole or in part to any cause beyond Exclusive Networks’ control including Force Majeure Events. In no event will Exclusive Networks be liable for any premium transportation, re-procurement, or other costs or losses incurred by Customer for any reason, including, without limitation, as a result of Exclusive Networks’ failure to deliver Product in accordance with indicated delivery schedules, including but not limited to partial or early delivery. If Customer directs Exclusive Networks to a third party account or to ship “freight collect” it shall remain solely liable for all associated costs and shall indemnify Exclusive Networks from any claims, costs, fees, damages and like arising therefrom. Upon arrival at the site designated by Customer, Customer or its authorized representative shall, immediately, inspect the Products for shortages, damages, losses or nonconformance. In the event Customer fails to immediately notify Exclusive Networks in writing of such shortage, damage, loss or nonconformance, full acceptance shall be deemed to have occurred.

6.3 Title to the Hardware set forth on the Order and invoice shall remain with Exclusive Networks until the full payment for such Product(s) has been made to Exclusive Networks by the Customer. In such instance Exclusive Networks is entitled to the following remedies: For Products Sold by Customer, Customer assigns all rights in the receivables resulting from Customer’s sales to its customers until Exclusive Networks receives full payment of amounts owed to Exclusive Networks. For Products Unsold by Customer- Customer hereby agrees that Exclusive Networks reserves the right to reclaim the Hardware. In addition, Customer shall reimburse Exclusive Networks for all costs and expense associated with returning the Hardware returned by Customer to Exclusive Networks. Products may not be returned nor will be refunded to Customer by Exclusive Networks without the prior written agreement of Exclusive Networks which returns, if any, shall be processed exclusively in accordance with the then-current returns policy of Exclusive Networks.

6.4 Except for the obligation to make payments, non performance of either party will be excused to the extent that performance is rendered impossible by strike, fire, pandemic, flood, acts of God, governmental acts or orders or restrictions, act of terrorism, war, or any other reason where failure to perform is beyond the reasonable control of the non-performing party and not due to its fault or negligence (“Force Majeure Events”); provided that, the non-performing party immediately notifies the other party in writing of such delay.

7 LIMITATION OF LIABILITY

7.1 Exclusive Networks will have no liability for: (i) discontinuation of Products, product lines, or any part thereof; or (ii) cancellation of any orders. THE ONLY LIABILITY EXCLUSIVE NETWORKS WILL HAVE WITH RESPECT TO ANY DAMAGED, DEFECTIVE, AND/OR ERRONEOUSLY SHIPPED PRODUCTS WILL BE THE RETURN RIGHTS DESCRIBED IN THESE SALES TERMS. CUSTOMER AGREES THAT EXCLUSIVE NETWORKS’ LIABILITY FOR DAMAGES ARISING UNDER THESE SALES TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL BE LIMITED TO ACTUAL, PROVEN, DIRECT DAMAGES AND WILL NOT EXCEED THE NET AMOUNT PAID TO EXCLUSIVE NETWORKS BY CUSTOMER FOR THAT PRODUCT OR SERVICE WHICH IS THE SUBJECT OF THE CLAIM. TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER WAIVES ANY CLAIMS, DEMANDS, CAUSES OF ACTION, OR RECOVERIES FOR INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING UNDER THIS AGREEMENT OR OTHERWISE WITH RESPECT TO THE SALE OF THE PRODUCTS OR SERVICES, FAILURE TO PERFORM IN ACCORDANCE WITH THE SALES TERMS, OR ANY PRODUCTS OR INFORMATION, INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INJURY TO PERSONS OR PROPERTY, BUSINESS INTERRUPTION OR DAMAGE TO BUSINESS REPUTATION OR LOSS OF GOODWILL, LOSS OF DATA, OR SECURITY BREACH, REGARDLESS OF THE THEORY UPON WHICH ANY CLAIM MAY BE BASED, AND EVEN IF EXCLUSIVE NETWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING ANY TORT OR STATUTORY CAUSES OF ACTION. CUSTOMER EXPRESSLY WAIVES ALL CLAIMS FOR THOSE DAMAGES. THIS PROVISION SHALL SURVIVE ANY TERMINATION OF THESE SALES TERMS.

8. EXPORT OF THE PRODUCTS BY CUSTOMER

8.1 Customer agrees and certifies that neither the Products, nor any other technical data received from Exclusive Networks, nor the direct Product thereof, will be exported or re-¬exported outside Canada except as authorized and as permitted by the laws and regulations of Canada and the U.S. including without limitation U.S. Export Administration Regulations. Customer acknowledges that certain products containing encryption may be subject to import and use restrictions in other countries, and Customer must comply with all export and import laws of the applicable countries. Customer will cooperate with Exclusive Networks in executing documents or licenses necessary to comply with the export or other applicable laws and regulations of Canada and the U.S.

9. NON-DISPARAGEMENT

9.1 Customer shall not disparage Exclusive Networks in its course of business or otherwise.

10. COMPLIANCE WITH LAW AND COMMERCIAL RESTRICTIONS

10.1 Customer agrees to comply with all applicable laws.

10.2 The Customer (including the Customer’s executives, directors, employees and agents) undertakes to comply with all the applicable laws and regulations related to anti-corruption law (including, and without limitation, the US Foreign Corrupt Practices Act, Corruption of Foreign Public Officials Act, S.C. 1998, c. 34, Canadian Criminal Code, R.S.C. 1985, c. C-46, the UK Bribery Act and the “Sapin II” law), anti-money laundering law, conflict of interest law, or any other applicable law, rule or regulation of similar purpose and effect, including the highest standards in these areas, that are in force and are applicable in any jurisdiction (referred to as the “Anti-Corruption laws”). The Customer is prohibited from : (a) taking any measures or allowing or authorizing any action by a third party in violation of the Anti-Corruption laws; (b) accepting or offering any sums of money, gifts, travel, entertainment or any other consideration, for illegal purposes, including for purposes infringing the Anti-Corruption laws, and/or intended to or may be construed as an inducement to act, to obtain, or unduly conserve, a market or an agreement or any undue advantage; and (c) directly or indirectly, offering, promising, giving, requesting or accepting anything whatsoever either from a civil servant or public agent, undertaking or company controlled by the government, political party or any other private individual or corporate entity, with the aim of unduly obtaining a commercial or financial advantage or influencing any acts or decisions. To the best of Customer’s knowledge, none of its executives, directors or employees are: (a) civil servants or public agents; (b) employed by an undertaking or company controlled by the government; or (c) the active representative of a political party. The Customer certifies that neither it nor its executives, directors or employees have been formally accused and/or pronounced guilty of an infringement or fraud with respect to the regulations applicable in terms of corruption. The Customer undertakes to inform Exclusive Networks immediately in the event it becomes aware of any behavior in the performance of the Agreement by its board member(s) and/or employees that is or may be inconsistent with this Clause and/or Anti-Corruption Laws. Notwithstanding any other contrary provisions of these terms of sale, Exclusive Networks may terminate commercial relations immediately should the Customer fail to comply with the provisions of this clause; it being, nonetheless, stipulated that the Customer should indemnify, protect and absolve Exclusive Networks in the event of damages.

10.3 The Customer also undertakes to comply with the applicable legislation in terms of the protection of personal data and privacy including but not limited to the most current EU General Data Protection Regulation and to gain the consent of its customers for forwarding their personal data to Exclusive Networks in such a way as to allow them to make legal use of it, inter alia, for commercial and marketing purposes.

10.4 Customer agrees to at all times comply with Exclusive Networks’ Code of Conduct set forth on Exclusive Networks’ website.

10.5 Customer agrees to at all times adhere to Exclusive Networks’ and any applicable third- party supplier’s current Product Restrictions and Obligations Policy. Buyer may not alter or modify the Products in any way or combine the Products with any other product or material not authorized by Exclusive Networks and the applicable third-party supplier of such Products. Products may have additional restrictions on their distribution or use. Customer is solely responsible for ensuring its adherence to any and all such restrictions.

11. GOVERNING LAW AND JURISDICTION

11.1 These Sales Terms and the rights and duties of Customer and Exclusive Networks shall be governed by the laws of the Province of British Columbia, Canada, excluding its conflict of law rules and the United Nations Convention on Contracts for the International Sale of Goods shall not apply to any sale hereunder.

11.2 The parties agree, regarding all disputes and claims arising hereunder, to and submit to personal jurisdiction and venue exclusively in the provincial and federal courts situated in the Province of British Columbia, Canada.

12. MISCELLANEOUS

12.1 Relationship Between the Parties. The parties will act as independent contractors. Except as may be otherwise expressly provided, neither party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, or to represent the other party as agent, employee, or in any other capacity

12.2 Confidentiality. Subject to the requirements of applicable law, Customer shall keep all non-standard credit, pricing, discount, rebate and such other financial and business considerations offered by Exclusive Networks to Customer in furtherance of their business relationship confidential and will, subject to strict confidentiality, not disclose such information to anyone, other than legal counsel, financial consultants and agents and representatives who need to know such information in connection with the transaction(s) contemplated hereby. Notwithstanding anything herein, Exclusive Networks may, from time to time and in its sole discretion, disclose credit information relative to Customer to third parties for informational purposes only.

12.3 Severability. If any Sales Terms are determined to be invalid, illegal, or unenforceable, such Sales Term will be severed from the Sales Terms, and the remainder of these Sales Terms will be valid and enforceable to the extent permitted by applicable law, provided that the intent of the parties is not materially impaired. The parties will use their best efforts to replace the invalid or unenforceable Sales Term with a Sales Term that, to the extent permitted by law, achieves the purposes intended under the invalid or unenforceable Sales Term.

12.4 Waiver. No failure of Exclusive Networks to exercise any power or right hereunder or to insist upon strict compliance with the terms of these Sales Terms, and no custom or practice of the parties at variance with the terms hereof, will constitute a waiver of its right to demand compliance with these Sales Terms.

12.5 Conflict with Applicable Law; Severability. A ruling by any court that one or more of the Sales Terms contained herein is invalid, illegal or unenforceable in any respect shall not affect any other Sales Terms so long as the material substance of the transactions contemplated herein is not affected in any manner adverse to any party.

12.6 Assignment. Customer shall not assign any obligation or any right or interest herein without the prior written consent of Exclusive Networks. Any assignment in contravention of the foregoing shall be null and void. Exclusive Networks’ affiliates may perform its obligations arising under these Sales Terms.

12.7 Notices. All notices, requests, demands, and other communications must be in writing and may be given by: (i) personal delivery; (ii) registered or certified mail, return receipt requested; or (iii) nationally recognized courier services to the party at its official corporate address. Notices to Exclusive Networks must be sent to: Exclusive Networks Canada Inc., A101, 9000 Bill Fox Way, Burnaby, BC V5J 5J3, Canada Attention: Legal Department.
12.8 Survival. No termination of these Sales Terms will affect any rights or obligations of either party which: (i) are vested pursuant to these Sales Terms as of the effective date of such termination; or (ii) by their sense and context are intended to survive completion of performance or termination of these Sales Terms, including, without limitation, Confidentiality, Warranties / Indemnities, and Limitation of Liability, all of which will survive.

12.9 Entirety of Terms and Conditions. These terms and conditions, along with all Orders and documents associated therewith constitute the entire agreement between the parties with respect to the subject matter hereof and supersede any and all prior agreements, arrangements, and understandings between the parties regarding such subject matter including any terms and conditions set forth on Customer documents. These Sales Terms may be modified by Exclusive Networks from time to time in its sole and absolute discretion. No modification of these Sales Terms in effect at the time Customer places its order shall be binding unless the modification is in writing and signed by an authorized representative of Exclusive Networks.

12.10 English Language. It is the express wish of the parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
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