General Terms and Conditions of Sale

1. Scope

These Standard Terms and Conditions of Sale (“Terms”) shall govern the sale by Fronius Canada Ltd. ("FRONIUS") of all goods and/or services described in the attached document to the customer also identified therein (“Customer”). Customer acknowledges and agrees that these Terms shall constitute part of any final contract of sale (“Sales Agreement”) that may be entered into between Customer and FRONIUS. Notwithstanding the foregoing, in the event of any inconsistency between the terms and conditions of the executed document attached hereto and these Terms, the terms and conditions of the attached document shall prevail. FRONIUS shall not be bound by any terms and conditions affixed to Customer’s purchase order or other procurement document that are inconsistent with these Terms. Neither commencement of performance nor delivery by FRONIUS shall be deemed or constituted as acceptance of Customer’s conflicting terms and conditions. Terms are subject to change at FRONIUS’ sole discretion at any time.

2. Quotations & Orders

2.1 Unless otherwise specified in writing in the attached document, all written quotations shall be intended for reference purposes only, constituting neither an offer to sell nor imposing any obligations or liability on FRONIUS. All written quotations and offers to sell automatically expire thirty (30) days from the date quoted unless otherwise specified in the attached document. For greater certainty, all offers to sell are offers by FRONIUS to sell to Customer on the terms set forth in the attached document and Terms herein.
2.2 Unless otherwise expressly agreed upon in writing by FRONIUS, any figures, measurements, dimensions, performance values, samples, patterns, statements, technical provisions or specifications, catalogues, brochures, depictions, photographs, models, designs, drawings, promotional materials in print or electronic format or other descriptive specifications relating to FRONIUS' quotation or offer to sell (“Promotional Specifications”) are approximations only and shall not be deemed to form part of any contract or be treated as constituting any representation, warranty or condition in relation to the goods or services. FRONIUS reserves the right to modify these Promotional Specifications at any time prior to the execution of any Sales Agreement between Customer and FRONIUS. FRONIUS expressly reserves all right, title and interest in any quotation or Promotional Specifications, which may not be disclosed to any third party nor used for any purpose whatsoever by any third party without the prior written consent of FRONIUS.
2.3 All offers to sell or Customer orders must set out the services to be performed and/or include the delivery dates, the quantity, quality and any other descriptive specifications of goods being purchased. No order placed by Customer shall be deemed to be accepted by FRONIUS unless and until confirmed in writing by FRONIUS or its duly authorized representative. FRONIUS reserves the right to decline any order in whole or in part at any time prior to its written acceptance of Customer’s order without notice to Customer. For greater certainty, subsequent requirements of Customer for goods and services not contained in an original offer to sell or Customer’s order must be accepted and confirmed in writing by FRONIUS or its duly authorized representative.

3. Price & Terms of Payment

3.1 The price for all goods and services shall be expressly set out in the attached document. Where no price has been specified, the price shall be based on FRONIUS’ price list in effect on the date of the delivery of goods and/or the date upon which the provision of services has been completed. FRONIUS reserves the right, by giving notice to Customer at any time after the conclusion of Sales Agreement, to increase the price of goods and services to cover: (i) foreign exchange fluctuation and increases in the costs of labour, materials and manufacturing; and (ii) any change in delivery dates, quantities or specification of goods and services requested by Customer.
3.2 Unless otherwise stated in writing by FRONIUS, the price of goods shall be EX Works (Incoterms 2000) and shall be exclusive of packaging, shipping charges, insurance, loading at the factory, import and export duties, applicable sale, use or other taxes payable to any governmental authority, including revenue or excise tax, value added tax, turnover tax, as well as any other ancillary costs in respect of which FRONIUS shall be entitled to make additional charges (“Additional Costs”). FRONIUS shall not take back packaging for goods sold to Customer.
3.3 Terms of payment for the goods and/or services and Additional Costs shall be expressly set out in the attached document. Unless otherwise agreed in the attached document, where FRONIUS has extended credit to Customer, full payment shall be due within thirty (30) days from date of FRONIUS’ invoice or such lesser or greater period which may be agreed in writing between Customer and FRONIUS. Unless otherwise agreed upon in writing by FRONIUS, all payments shall be in Canadian dollars and must be made directly to FRONIUS in accordance with the payment options described in FRONIUS’ invoice. Unless otherwise agreed upon in writing, Customer shall not have any right of deduction or set-off.
3.4 If Customer fails to make payment for the goods and/or services and Additional Costs or any part thereof by the due date, without prejudice to any other right or remedy available to FRONIUS, FRONIUS reserves the right to charge interest on the outstanding balance of any overdue accounts at a rate of twelve percent (12%) per annum, accruing daily and payable monthly. Where the invoice is payable in installments, FRONIUS reserves the right to charge interest on overdue installments at the said rate from the date payment is due to the date of payment. If at any time FRONIUS determines in good faith that Customer’s financial condition or credit rating does not justify a sale on credit or if Customer is at any time in default of any undelivered indebtedness or obligation owed to FRONIUS, then FRONIUS may: (i) suspend further delivery of goods and/or performance of services until payment is received in full; and/or (ii) require cash payment in advance of delivery of goods and/or performance of services; and/or (iii) refuse to perform services and/or deliver any undelivered goods whether ordered under the Sales Agreement or not, without incurring any liability to FRONIUS for non-performance or non-delivery or any delay in delivery; and/or (iv) terminate the Sales Agreement. Customer agrees to submit such financial information from time to time as may be reasonably requested by FRONIUS for the establishment and/or continuation of credit terms. Customer agrees to pay any and all legal fees associated with payment collection.
3.5 For services performed under contracts for work and materials (installation, repairs, maintenance and other service work), FRONIUS shall charge such hourly rates and prices for materials or any other foreseeable costs or expenditures applicable at the time of completion of the performance of the services, plus any applicable (i) surcharges for overtime, night-time work, Sunday or public holiday work, (ii) travel expenses and (iii) and daily and overnight allowances.

4. Delivery of Goods and Performance of Services

4.1 Unless otherwise agreed upon in writing, FRONIUS shall deliver goods Ex Works its premises (Incoterms 2000) after FRONIUS has notified Customer that goods are ready for collection by means of an order confirmation note, as such, the Customer shall be responsible for all costs associated with the goods arising after receipt of the order confirmation note. Selection of the carrier and route of delivery shall be made by FRONIUS unless specified in writing by Customer. In no event shall FRONIUS have any liability in connection with shipment, nor shall the carrier be deemed to be an agent of FRONIUS. Services shall be performed at the premises designated by Customer or at such other location as the parties may from time to time agree upon in writing.
4.2 FRONIUS will use commercially reasonable efforts to meet requested dates and times for delivery of goods and/or performance of services. However, specific dates and times will not be guaranteed and time shall not be of the essence unless previously agreed upon in writing by the parties. Compliance with the estimated date of delivery of goods and/or provision of services shall require that all commercial, contractual and technical issues between Customer and FRONIUS have been settled. If this is not the case, the period for the delivery of goods and/or provision of services shall be extended accordingly.
4.3 Unless otherwise agreed in writing by the parties, FRONIUS reserves the right to deliver goods in instalments and/or perform services in stages. Each delivery of goods shall be treated as a separate transaction and payment thereof shall be in proportion to the overall purchase price set out in the Sales Agreement. Delay or failure by FRONIUS to deliver an instalment and/or perform a stage of service in accordance with these Terms shall not entitle Customer to repudiate or cancel other instalments or stages of Sales Agreement.
4.4 In the event that delivery of goods is delayed at the request or by fault of Customer, FRONIUS shall store goods at the risk and expense of Customer for a minimum monthly charge of one-half percent (0.5%) of the invoice amount. If the provision of services is delayed at the request or by fault of Customer, without prejudice to any other right or remedy available to FRONIUS, Customer shall compensate FRONIUS for all reasonable costs and expenses associated with the delayed acceptance of the performance of services. Customer must promptly provide FRONIUS with written notice of any delay in delivery of goods or performance of services. If Customer fails to take delivery of goods within three (3) months after FRONUIS has notified Customer that goods are ready for collection, FRONIUS shall be entitled, at its sole discretion, to: (i) make alternative arrangements regarding the goods to be delivered and to effect delivery to Customer within a reasonable extended time period; and/or (ii) sell goods at the best price readily obtainable, without incurring any liability or penalty, and (after deducting all reasonable storage and selling expenses) account to Customer for the excess over the price under Sales Agreement or charge Customer for any shortfall below the price under Sales Agreement; and/or (iii) terminate the Sales Agreement and claim damages for breach of contract in which case FRONIUS shall be entitled to be indemnified, without having to furnish any particular evidence to Customer, for an amount equal to ten percent (10%) of the invoice amount for the intended delivery. Where appropriately substantiated, FRONIUS shall also be entitled to claim compensation for any damage in excess of the amount described in the preceding sentence.
4.5 FRONIUS shall not be liable to Customer for any delay or failure to deliver goods and/or perform services due to any cause beyond FRONIUS’ reasonable control, including, without limitation, any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, illness or injury to workers, delayed or failed deliveries by subcontractors, power failure, damage or destruction of production facilities, riot, insurrection, transportation delays or defaults, delay in supply or shortages of fuel, components, raw materials or supplies, labour shortage, acts or omissions of third parties, action of any governmental authority, or any other cause beyond the reasonable control of FRONIUS (the "Force Majeure"). In such event, FRONIUS must promptly provide Customer with written notice of the Force Majeure. FRONIUS' time for delivery and/or performance shall be extended for a period equal to the time lost by reasons of the Force Majeure without subjecting FRONIUS to any liability or penalty. If the Force Majeure event lasts longer than fifteen (15) days, FRONIUS may immediately terminate all or part of the Sales Agreement, without incurring any liability or penalty, by providing written notice of such cancellation to Customer.
4.6 For greater certainty, FRONIUS shall not be liable for any damages, losses, costs or expenses (collectively, the Damage”) resulting from FRONIUS’ delay in delivery of goods and/or provision of services to Customer unless such Damage arises from the gross negligence of FRONIUS. Notwithstanding the foregoing, where the gross negligence of FRONIUS causes a delay in the delivery of the goods, Customer shall be entitled to compensation equal to half of a percent (0.5%) per week up to a maximum of five percent (5%) of the value of the portion of the delivery which cannot be used on time for its intended purpose as a result of the delay. Where the gross negligence of FRONIUS causes a delay in the performance of services, Customer shall be entitled to be compensated up to a maximum of five percent (5%) of the value of the invoice amount to be charged for the services.

5. Risk of Loss, Title and Insurance

5.1 Delivery of the goods to a common carrier shall constitute delivery to Customer and risk of loss shall thereupon pass to Customer. Once either: (i) the equipment upon which maintenance, repair or other service work (collectively, Service Work”) has left the premises of FRONIUS, or (ii) service personnel have completed the Service Work at the premises of Customer, risk of loss shall thereupon pass to Customer. The same shall also apply to partial deliveries or in the event FRONIUS undertakes to bear shipping charges or to perform delivery, set-up, assembly, installation or other similar services.
5.2 Title to and ownership of all goods shall not pass to Customer until payment of the purchase price and any Additional Costs has been made in full to FRONIUS. Customer shall be obliged to keep goods free from the rights of third parties and shall not pledge or purport to transfer title to goods as security. FRONIUS retains the right, at any time, to require Customer to return goods to FRONIUS. If Customer fails to do so forthwith, Customer acknowledges that FRONIUS may enter upon any premises of Customer or any third party where goods are stored and repossess goods at the expense of Customer. If goods are resold or otherwise disposed of by Customer, Customer will ensure that the entire proceeds of the sale are held on behalf of FRONIUS and shall not be mixed with any other monies or paid into an overdrawn bank account and shall at all times be identifiable as monies belonging to FRONIUS.
5.3 Customer shall maintain goods in good condition and repair and shall fully insure goods against loss, fire, water damage, theft or any other insurable risks in an amount no less than the value of the purchase price until FRONIUS has been paid in full therefore, or until goods have been returned to FRONIUS. The insurance policy shall contain a standard lender’s loss payable endorsement in favour of FRONIUS and shall provide that the policy shall not be cancelled, and the coverage shall not be reduced, without at least ten (10) days prior written notice to FRONIUS. Upon FRONIUS’ request, Customer shall provide evidence of the insurance coverage.

6. Security Interest and Solvency

Customer represents and warrants to FRONIUS that Customer is solvent. FRONIUS retains a security interest in goods to secure payment of the purchase price and all other indebtedness and obligations that Customer now and in the future owes to FRONIUS. Customer hereby grants a security interest to FRONIUS in all goods sold to Customer, including any and all proceeds therefrom and any related or ancillary parts or attachments. FRONIUS may file a financing statement, fixture filing or similar registration with respect to the goods at anytime. Customer shall take all actions that FRONIUS requests to perfect, and to obtain and maintain first priority of, that security interest, and Customer shall pay, or reimburse FRONIUS for, all fees, taxes and other costs that are incurred in connection with those actions. To the extent permitted by law, Customer waives requirement of being provided with a copy of any financing or verification statement or renewal thereof.

7. Safety Compliance

Customer shall use, and shall require its employees, agents and authorized representatives to use safety devices, guards, and proper safe operating procedures in accordance with applicable operating manuals, instructions provided by FRONIUS or its authorized representatives and product labels. Customer shall not remove or modify any safety device, guard, label or warning. Customer shall comply with all applicable federal, provincial and municipal health and safety laws, standards and regulations (“Safety Laws”). FRONIUS shall have no liability for, and Customer shall indemnify and hold FRONIUS harmless from, any damages, obligation, loss and expenses arising from or related to Customer’s breach of Safety Laws. Customer is solely responsible for any damage to goods resulting from the use of qualities, grades and quantities which adversely affect the operation of the goods. Customer shall be solely responsible to educate, warn and protect users of the goods and other persons with respect to the dangers of the goods. It is Customer’s responsibility to ensure that all goods are in electrical code compliance.

8. Customer’s Obligation to Assist with Provision of Services

8.1 Where services are to be performed at the premises of the Customer, the Customer shall ensure, upon the arrival of FRONIUS’ service personal, that services can be performed immediately and completed without delay. Where services are to be performed at FRONIUS’ premises, the Customer agrees that FRONIUS may perform such services as it deems necessary or advisable, in its sole discretion, without notice to Customer. For the purposes of this paragraph, the word “services” shall be deemed to include, without limitation, maintenance, repair, training, welding application, calibration, commissioning and installation.
8.2 Customer shall provide, at its expense, all necessary assistance to FRONIUS to enable the effective provision of services. Such assistance shall include but not be limited to: (i) supplying FRONIUS with all necessary equipment and auxiliary materials (e.g. winches, rails, lighting, power, water and other required connections, etc. (“Ancillary Materials”)); (ii) ensuring that all preparatory work is completed prior to the arrival of FRONIUS’ service personnel at the premises of Customer; (iii) providing FRONIUS, no later than ten (10) days prior to the commencement of the provision of services, with a detailed report setting out current deficiencies and/or desired performance levels for the equipment to be serviced by FRONIUS; (iv) ensuring that all equipment is clean and ready for servicing; (v) taking all necessary precautions to ensure the health and safety of the service personnel of FRONIUS; (vi) ensuring that, if required, a sufficient number of qualified staff are in attendance at all times to implement the instructions of FRONIUS’ service personnel. Neither FRONIUS nor its employees, agents or affiliates shall be liable for any act or omission of Customer’s personnel, or any loss or damage suffered by Customer’s equipment and Auxiliary Materials unless such loss or damage is the result of the gross negligence of FRONIUS; (vii) ensuring that all equipment and tools of FRONIUS’ service personnel are stored in a secure and dry location at the job site; (viii) providing service technicians with clean, dry, heated and secure staff rooms and working spaces equipped with adequate sanitary facilities. FRONIUS shall be entitled to refuse to perform the services without liability or penalty if the provisions of this section are not strictly complied with by Customer.
8.3 Customer agrees to reimburse FRONIUS for all applicable costs or expenses incurred by FRONIUS arising from Customer’s failure to comply with this Section 8, including without limitation replacement of lost or stolen tools or equipment.

9. Off-Site Service at FRONIUS’ facilities

At the written request of Customer, FRONIUS shall provide the services specified in the document attached hereto at FRONIUS’ facilities. If Customer wishes FRONIUS to test, repair or upgrade equipment at FRONIUS’ facilities, Customer shall bear all packaging, transportation and delivery costs and shall insure the equipment against all insurable risks, including, without limitation, damage, loss, fire or theft.

10. Changes and Cancellation

10.1 No Sales Agreement which has been executed by FRONIUS may be cancelled or amended by Customer except with the approval in writing of FRONIUS and on terms that Customer shall indemnify FRONIUS in full and on demand against all loss (including loss of profit), costs (including the cost of all labour and materials used, as well as accounting, legal and clerical costs), damages, charges and expenses incurred by FRONIUS as a result of the cancellation or change.
10.2 Customer’s Cancellation for Default: Upon written notice to FRONIUS, Customer may cancel Sales Agreement, in whole or in part, if FRONIUS fails to perform or observe any material term or condition of Sales Agreement (“Default”), and such failure continues unremedied for a period in excess of thirty (30) after receipt by FRONIUS of written notice of such Default. Upon cancellation, Customer shall only be entitled to recover damages incurred by Customer as a result of the gross negligence or wilful misconduct of FRONIUS. In no event shall FRONIUS’ liability for such damages exceed the price allocable to the specific goods or services giving rise to the claim.
11. Inspection and Acceptance of Goods and Services
11.1 Notwithstanding (i) payment, (ii) passage of title, or (iii) prior inspection or tests, all goods delivered and services performed under Sales Agreement shall be subject to Customer’s right of inspection and acceptance. Records of all inspection work by Customer shall be maintained by Customer and made available to FRONIUS during the performance of Sales Agreement and for a period of thirty-six (36) months thereafter. Customer shall inspect goods for defect or deficiency immediately upon receipt thereof at Customer’s facilities. Within twenty-four (24) hours after service completion by FRONIUS, Customer shall inspect and test equipment while operational for the purpose of identifying any deficiencies in services for which FRONIUS may be responsible. If Customer determines that the goods and/or services are defective or deficient, Customer shall provide FRONIUS with a written notice by letter, fax or e-mail, containing the full details of the alleged defect or deficiency and setting out the date of the order confirmation, the delivery confirmation or the invoice, as well as the serial and commission numbers (the “Inspection Notice”). At FRONIUS’ request, Customer shall return defective or deficient goods to FRONIUS at Customer's risk and expense (unless otherwise provided in the document attached hereto) and in accordance with FRONIUS’ return policy in effect from time to time. FRONIUS shall promptly investigate Customer’s claim and shall, at its sole discretion and within thirty (30) days of the date of the Inspection Notice either: (i) provide information to Customer confirming that the goods and/or services are not defective or deficient; or (ii) advise Customer of its planned corrective action. If FRONIUS determines that the Inspection Notice was given without cause, Customer shall reimburse FRONIUS for all applicable costs and expenses thereby occasioned to FRONIUS.
11.2 If following inspection Customer fails to provide the Inspection Notice to FRONIUS within five (5) calendar days of receipt of goods at Customer’s facilities or within five (5) calendar days of service completion, Customer shall be deemed to have irrevocably accepted the goods delivered or services provided. Moreover, use of any goods by Customer, its agents, employees or licensees, for any purpose after delivery thereof, shall constitute irrevocable acceptance of goods by Customer.

12. Limited Warranty

12.1 Subject to subsection 12.2, FRONIUS warrants that when employed in normal usage in accordance with FRONIUS’ manual, goods purchased hereunder are free from defects in material and workmanship and conform to the requirements of Sales Agreement and FRONIUS shall, at its option, repair or replace such defective goods in accordance with this section 12.
12.2 The warranty conferred under subsection 12.1 shall apply only to those goods listed in the table below and shall remain in effect only until the expiry of the time period specified.  Unless otherwise specified herein, the warranty coverage applies exclusively as stipulated below.

 12.3 All warranty periods begin to run from the date of purchase from FRONIUS as demonstrated on the original invoice.  If the original invoice cannot be provided, the warranty period begins to run from the date of manufacture.  All warranty times are based on one-shift operation at 8 hours of use per shift.  If the goods are used in multi shift operation, the applicable warranty period is reduced proportionately to such use.
12.4 Where a good is replaced by FRONIUS during the warranty period, that replaced good shall be subject to the warranty only for the unexpired portion of the warranty period relating to the original unit.  Where a good or any part thereof is replaced by FRONIUS during the warranty period, that defective good and/or part so replaced shall be deemed to be the property of FRONIUS.
12.5 FRONIUS’ obligations under subsection 12.1 shall be at FRONIUS’ expense subject to the following limitations: (i) FRONIUS shall not be responsible for any labour expenses in excess of the labour hours stipulated in FRONIUS’ target-time catalogue then in effect for the applicable good for any single warranty claim; (ii) FRONIUS shall be responsible for its own travel expenses provided the defective good weighs in excess of 30 kg up to a maximum total travel distance of 200 km and a maximum total travel time of 3 hours per warranty claim; (iii) all shipping charges to and from FRONIUS’ designated repair centre and special transportation charges will be at the Customer’s sole expense.  In no event shall FRONIUS’ obligations under subsection 12.1 exceed the original purchase price of the defective good.  For clarity, travel expenses and travel time are not covered by the warranty for defects related to MIG torches, TIG torches, goosenecks, push pull drives and cable assemblies, reconditioned parts or new or reconditioned P.C. boards.
12.6 The warranty conferred under subsection 12.1 does not cover any damage to or defect in the goods directly or indirectly, or wholly or partly attributable to: (i) the misuse, abuse or neglect of the Customer, including any damage to the good resulting from alterations or modifications made by any person not authorized by FRONIUS or resulting from shipment; or (ii) ordinary wear and tear, including without limitation wear to wear parts such as contact tips, liners and feed rolls.
12.7 The repair or replacement of the goods shall be the sole remedy of the Customer and FRONIUS shall not be liable for any direct or indirect, incidental or consequential loss or damage suffered by the Customer by reason of any defect in workmanship or manufacture of such goods or the inability to use those goods.
12.8 THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES.  EXCEPT AS EXPRESSLY PROVIDED HEREIN, FRONIUS EXCLUDES ALL EXPRESS OR IMPLIED WARRANTIES, CONDITIONS AND OBLIGATIONS, WHETHER STATUTORY OR OTHERWISE, CONCERNING THE QUALITY OF THE GOODS OR THEIR FITNESS FOR ANY PARTICULAR PURPOSE. FRONIUS DOES NOT WARRANT ANY GOODS OF OTHERS, WHICH CUSTOMER HAS DESIGNATED.
12.9 Subsections 12.7 and 12.8 do not apply to the extent that the applicable laws of a jurisdiction prohibit the limitation of a warranty.

13. Limitations of Liability

13.1 FRONIUS' LIABILITY ON ALL CLAIMS OF ANY KIND, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, FOR ALL LOSSES OR DAMAGES ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THIS AGREEMENT, OR THESE TERMS AND CONDITIONS, OR FROM THE PERFORMANCE OR BREACH THEREOF, OR FROM ANY GOODS OR SERVICES COVERED BY OR FURNISHED UNDER THE AGREEMENT OR ANY EXTENSION OR EXPANSION THEREOF (INCLUDING REMEDIAL WARRANTY EFFORTS), SHALL IN NO CASE EXCEED THE PRICE ALLOCABLE TO THE SPECIFIC GOODS OR SERVICES THAT GIVES RISE TO THE CLAIM. ALL SUCH LIABILITY SHALL TERMINATE UPON THE EXPIRATION OF THE WARRANTY PERIOD SPECIFIED ABOVE.
13.2 IN NO EVENT, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL FRONIUS, ITS EMPLOYEES AND SUPPLIERS BE LIABLE FOR SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, LOSS OF USE OF ANY PROPERTY, COST OF CAPITAL, COST OF PURCHASED POWER, COST OF SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES, BUSINESS INTERRUPTION COSTS, DOWNTIME COSTS, INJURY TO PERSON OR PROPERTY OR DEATH, OR CLAIMS OF CUSTOMERS OF CUSTOMER FOR SUCH DAMAGES OR LOSSES, AND CUSTOMER WILL INDEMNIFY FRONIUS, ITS EMPLOYEES, AGENTS, SUPPLIERS AND AFFILIATES AGAINST ANY SUCH CLAIMS FROM CUSTOMER'S CUSTOMERS. IF CUSTOMER RESELLS GOODS SOLD HEREUNDER TO ANY THIRD PARTY, CUSTOMER SHALL OBTAIN FROM SUCH THIRD PARTY A PROVISION AFFORDING FRONIUS AND ITS SUPPLIERS THE PROTECTION OF THE PRECEDING SENTENCE. If permitted by applicable law, any action or suit by Customer against FRONIUS relating to the Sale Agreement of the goods covered hereby must be brought within one (1) year of the date of invoice for such goods. The parties hereto acknowledge and agree that this is a commercial transaction.
13.3 If FRONIUS furnishes Customer with advice or assistance concerning any goods or services which are not required pursuant to the Sales Agreement, the furnishing of such advice or assistance will not subject FRONIUS to any liability, whether in contract, warranty, tort (including negligence), strict liability or otherwise.

14. Indemnification

Customer shall indemnify, defend and hold harmless FRONIUS from and against all claims, demands, causes of action (including third-party claims), losses, damages, expenses (including consequential and incidental damages, court costs and attorney fees) and liabilities of every kind and nature that FRONIUS incurs as a result of Customer’s breach of any of Customer’s obligations under the Sales Agreement.

15. Special provisions for software supplied with products or sold separately

In the case of software, whether supplied together with other deliveries or sold separately, these Terms shall only apply to the extent that the following provisions do not deviate there from.
15.1 Scope of utilization
15.1.1 Unless otherwise agreed upon in writing, FRONIUS’ software shall be licensed for use on a single machine only. Customer shall be free to determine which machine the software will be utilized on. For the purpose hereof, “utilization of the software” shall mean any long-term or temporary duplication (copying) of the software, whether in whole or in part, by means of it being saved, loaded, executed or displayed by hardware for the purposes of running the software and processing the data contained therein. Customer shall also be entitled to duplicate the software for the purpose of observing, examining and testing the software. Customer shall not be entitled to duplicate the user manual without the prior written consent of FRONIUS.
15.1.2  Customer may only modify or edit the software in accordance with the Terms herein and such terms as the parties may agree upon from time to time for the purpose of interfacing the software with other software and/or for error correction. Trade names, trademarks, copyright notices and other notices regarding the reservation of rights which are contained within the software may not be altered and must be carried over in any modified or edited versions of the software. Any decompilation of the program code is strictly prohibited.
15.1.3  Customer may make a back-up copy of the software, insofar as this is necessary to ensure future availability of use. If the software has a technical copy protection feature, then Customer shall be provided with a replacement copy in exchange for the original data medium in the event of damage to the original software.
15.2 Assignment of the software package to a third party
15.2.1  Customer may assign the software package, in its original condition and in its entirety, to a third party, but is contractually obligated to bind the said third party to observe all obligations towards FRONIUS arising from the assignment of the software package. This right does not include the right to assign copies and partial-copies of the software package, or modified or edited versions or copies and partial-copies of such versions.
15.2.2  When the software package is transferred to a third party, the right to utilize it also passes to the said third party, who thus enters into the contract in lieu of Customer, whereupon the utilization rights hitherto held by Customer shall terminate.
15.2.3  Once the software package has been assigned to a third party, Customer shall immediately and completely destroy all copies, partial-copies and back-up copies, as well as any modified or edited versions of the software and any copies, partial-copies and back-up copies made thereof.
15.2.4  These provisions (subsections 15.2.1 through 15.2.3) shall also apply in cases where the software is transferred on a merely temporary, short-term basis. Leasing the software package, or any portion thereof, is not permitted.
15.3 Further rights
15.3.1  Subject to the foregoing, FRONIUS reserves all other right, title and interest in the software. Nothing contained herein, however, shall preclude Customer from exploiting its own software that it developed or operates in the context of compliant utilization of the software supplied by FRONIUS, or from achieving any other results through its use of the software supplied.
15.3.2  When a new software version becomes available, Customer shall be entitled to exchange the originally supplied software package for an updated version of the software package at our updated list price. The exchange applies to the software package in its entirety, as originally acquired by Customer. Upon exchanging the old version for the updated version, Customer shall lose its entitlement to utilize the old (i.e. exchanged) software package. The obligation to destroy, as per subsection 15.2.3 above, shall apply analogously in this case.
15.4 Warranty
15.4.1 Customer acknowledges that it is not possible to develop software programs in such a way that these will be fault-free under any and all conditions of use.
15.4.2 FRONIUS warrants that the software supplied will fulfill the agreed functions and that it possesses the expressly warranted characteristics. Any and all warranty shall be contingent upon utilization in accordance with the Terms hereof and such other terms as the parties hereto may agree upon in writing from time to time.
15.4.3 FRONIUS also warrants that the original software has been properly recorded on a tested data medium. Pre-installed software is exempt from the terms of this provision.
15.4.4 The warranty period for the software shall expire twelve (12) months after the date the software package is delivered to Customer.
15.4.5 If the software package supplied is defective or deficient, FRONIUS shall exchange it for a new one with the same title. If the replacement software package should also prove to be defective or deficient and FRONIUS is unable to restore it to serviceability at a reasonable expense and within a reasonable time frame (not less than four (4) weeks), then Customer shall be entitled to either demand a price reduction or withdraw from the contract. In the event of termination, subsection 15.2.3 shall apply analogously. FRONIUS shall not refund any costs or expenses incurred as a result of any actual or attempted remedy of a defect in the software by Customer or any third party.
15.4.6 FRONIUS gives no warranty regarding software beyond the foregoing (i.e. subsections 15.4.5 and 15.4.6), and in particular does not warrant that any software supplied, modified or edited will meet the special requirements of Customer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, FRONIUS EXCLUDES ALL EXPRESS OR IMPLIED WARRANTIES, CONDITIONS AND OBLIGATIONS, WHETHER STATUTORY OR OTHERWISE, CONCERNING THE QUALITY OF SOFTWARE OR ITS FITNESS FOR ANY PARTICULAR PURPOSE. Customer shall be solely responsible for the selection, installation and utilization of the software and for the results intended to be achieved therewith.

16. Notice

Any notice, approval, consent, waiver, or other communication to be given hereunder shall be in writing and shall be deemed to given on the date delivered if delivered personally or sent by facsimile or electronic mail, or as of the following Business Day if sent by prepaid overnight courier, to Customer at the address, telephone, facsimile provided in the document attached hereto and to FRONIUS at 2875 Argentia Road, Units 4, 5 & 6, Mississauga, Ontario, Canada, telephone 905-288-2100 and facsimile 905-288-2101, or at such other address, as may be provided in writing from time to time.

17. Language

These Terms and any document relating thereto have been prepared in the English language at the express request of the parties. Les parties exigent, et par les présentes confirment leur demande, que ce contrat et tous les documents y afférents soient rédigés en anglais seulement.

18. Entire Agreement

These Terms and any document relating thereto contain the entire agreement between Customer and FRONIUS and shall not be altered or amended except by written instrument signed by both parties.

19. Applicable Law and Jurisdiction

These Terms and any document relating thereto shall be governed by and interpreted according to the laws of the Province of Ontario and applicable federal laws of Canada, without giving effect to conflicts of laws rules, and either party shall bring any action that arises out of or relates this Sales Agreement in any court in Toronto, Ontario, that has jurisdiction over the subject matter.