Terms for Product Sales
Version Date: 12NETS INC. February 24, 2023
THE CONDITIONS GOVERNING THE SALE OF PRODUCTS ARE LIMITED TO THOSE STIPULATED WITHIN THIS DOCUMENT OR AS SPECIFIED ON 12NETS INC'S INVOICE RELATING TO THE SALE.
UPON ACCEPTANCE OF PRODUCT DELIVERY OR ENGAGEMENT OF 12NETS INC INC ("12NETS INC") TO SUPPLY PRODUCTS, CUSTOMER HEREBY AGREES TO BE LEGALLY BOUND BY AND ACCEPT THESE TERMS, UNLESS A SEPARATE PURCHASE AGREEMENT HAS BEEN DULY EXECUTED BETWEEN CUSTOMER AND 12NETS INC. IN SUCH CASE, THE SEPARATE AGREEMENT SHALL TAKE PRECEDENCE.
CUSTOMER'S ORDERS WILL NOT BECOME LEGALLY BINDING UNTIL THEY HAVE BEEN OFFICIALLY ACCEPTED BY 12NETS INC. PLEASE BE AWARE THAT THE PROVIDED ESTIMATES FOR ORDER DELIVERY TIMES ARE INTENDED AS GENERAL GUIDELINES AND 12NETS INC ASSUMES NO RESPONSIBILITY FOR DELAYS BEYOND ITS CONTROL. IT SHOULD BE NOTED THAT THESE TERMS MAY BE AMENDED WITHOUT PRIOR NOTICE.
Crucial Information Pertaining to These Terms
The Customer acknowledges the legally binding nature of these Terms, which constitute a contractual agreement between the Customer and 12NETS INC. These Terms are herein referred to as either "Terms" or "Agreement." Customer's acceptance of these Terms transpires when making a purchase, placing an order with 12NETS INC, shopping on any 12NETS INC Website, or utilizing any 12NETS INC Mobile Application (hereafter, collectively, a ‘’Site") or when making other product requests.
By engaging with 12NETS INC, the Customer grants consent to receive electronic records associated with its transactions. Such records may be conveyed through a web browser or email application. Should Customers wish to retract their consent to receive electronic records or request non-electronic records, they may do so by contacting 12NETS INC. It is understood and affirmed by the Customer that electronic signatures (or electronic copies of signatures) hold the same legal weight as traditional written and manually signed documents.
Customers may issue purchase orders for administrative purposes exclusively. Any terms and conditions contained in such purchase orders, aside from those necessary for identifying the Customer, the Products, and the quantity required, shall be deemed null and void. This Agreement encapsulates the complete understanding of the parties concerning the terms governing Products and takes precedence over any prior verbal, written, electronic, or implied communications, as well as any contemporaneous agreements and understandings, if any, between the parties relating to the subject matter herein."
The term 'Products' herein encompasses goods and services offered by 12NETS INC, which are resold from Third-Party Providers. These encompass, without limitation, hardware, software, subscription services, updates, bug fixes, maintenance services, support services, warranty services, and professional services that Customers may procure, collectively referred to as 'Products.' 'Third-Party Providers' denotes manufacturers, distributors, licensors, or providers of the Products for whom 12NETS INC serves as a reseller or sales agent. When acquiring Products, the Customer is reliant solely on the specifications provided by the Third-Party Provider and does not rely on any statements or documents furnished by 12NETS INC. Regarding Third-Party Provider Products, the Customer acknowledges and agrees that: (i) 12NETS INC resells the Products solely for the Customer's use (unless otherwise stated in a separate written agreement between the Customer and 12NETS INC); and (ii) 12NETS INC is not the creator, manufacturer, distributor, or licensor of these Products. The Customer hereby releases 12NETS INC from any and all claims arising from or relating to the purchase or provision of such Third-Party Provider Products.
Risk of Loss
Should the Customer provide 12NETS INC with their carrier account number or select a carrier other than 12NETS INC's regular carrier, title to the Products and the risk of loss or damage during shipment transfer from 12NETS INC to the Customer upon delivery to the carrier (F.O.B. Origin, freight collect). In all other shipments, title to the Products and the risk of loss or damage during shipment pass from 12NETS INC to the Customer upon delivery to the specified destination (F.O.B. Destination, freight prepaid and added). However, it should be noted that title to software remains with the applicable licensor(s), and the Customer's rights therein are delineated in the license agreement or subscription agreement between said licensor(s) or software publisher(s) and the Customer.
The Customer commits to paying the total purchase price for the Products, including shipping and any other costs itemized on the invoice periodically issued by 12NETS INC. The Customer will also remit any relevant sales, use, goods and services, transaction, excise, or similar taxes, as well as any federal, provincial, local fees or charges (including, but not limited to, environmental or similar fees) related to all the Products.
Payment terms are at the sole discretion of 12NETS INC. The Customer will settle invoices as presented by 12NETS INC. Invoices are due and payable within the stipulated time period on the invoice unless otherwise mutually agreed upon in writing between the Customer and 12NETS INC, commencing from the invoice date, and subject to ongoing credit approval by 12NETS INC.
Partial shipments may result in separate invoices from 12NETS INC. The Customer agrees to pay interest on any overdue amounts at a rate of one and a half percent (1.5%) per month (equivalent to 18% per annum), calculated on a monthly basis.
Should payments not conform to 12NETS INC's approved payment terms, 12NETS INC may, after notifying the Customer, suspend or terminate the provision of Products (including subscriptions).
Customers must assert any tax, fee, or charge exemptions at the time of purchase and furnish 12NETS INC with the necessary supporting documentation. In the event of payment default, the Customer will bear all collection costs incurred by 12NETS INC, including but not limited to court costs, filing fees, and legal fees. All references to monetary amounts are in lawful currency as stipulated in the invoice or in Canada's lawful currency."
Customer commits to refraining from diverting, utilizing, exporting, or re-exporting items in violation of any applicable federal, state, or provincial laws within Canada or the United States. Customer explicitly acknowledges and agrees not to export, re-export, or furnish these items to any entity or individual located within countries subject to comprehensive economic sanctions imposed by Canadian or United States authorities, without obtaining prior authorization from the relevant governing body. Furthermore, Customer expressly acknowledges and agrees not to export, re-export, or provide these items to entities or individuals prohibited under Canadian or United States law from receiving such items.
To the extent applicable and allowed by the Third-Party Provider, 12NETS INC will convey any warranties received from the Third-Party Provider for a Product to the Customer. This limited obligation to pass on warranties from the Third-Party Provider to the Customer constitutes the Customer's exclusive recourse and 12NETS INC's sole obligation concerning representations, warranties, and conditions pertaining to Products. 12NETS INC MAKES NO WARRANTIES OR REPRESENTATIONS REGARDING THE PRODUCTS, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. The parties explicitly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods and any related local implementing legislation. Customer acknowledges that no employee of 12NETS INC is authorized to make any representation or warranty on behalf of 12NETS INC that is not specified in this Agreement.
Pricing Information; Availability Disclaimer
12NETS INC retains the right to modify pricing for various reasons, including but not limited to changes in market conditions, Product discontinuation, Product unavailability, manufacturer price adjustments, supplier price changes, and advertisement errors. The availability of all orders depends on Product availability. Consequently, 12NETS INC cannot guarantee its ability to fulfill Customer's orders.
Limitation of Liability
12NETS INC’S TOTAL AND AGGREGATE LIABILITY FOR ANY LOSS, DAMAGE, COST, OR EXPENSE INCURRED BY THE CUSTOMER ARISING FROM OR IN CONNECTION WITH THE CUSTOMER’S ORDER OR PURCHASE OF PRODUCTS, 12NETS INC’S SUPPLY OF PRODUCTS, OR THIS AGREEMENT SHALL BE LIMITED TO THE LESSER OF: (A) THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PRODUCT GIVING RISE TO THE CLAIM; OR (B) TEN THOUSAND ($10,000.00) CANADIAN DOLLARS.
UNDER NO CIRCUMSTANCES SHALL 12NETS INC. BE LIABLE TO THE CUSTOMER FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES. 12NETS INC SHALL HAVE NO LIABILITY FOR THE FOLLOWING: (I) LOSSES OF REVENUE, INCOME, PROFIT, OR SAVINGS; (II) LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF SYSTEMS OR NETWORKS, OR THE RECOVERY OF SUCH; (III) LOSS OF BUSINESS OPPORTUNITY; (IV) BUSINESS INTERRUPTION OR DOWNTIME; (V) CYBERSECURITY BREACHES; (VI) LOSS OF GOODWILL OR REPUTATION; OR (VII) PRODUCTS NOT BEING AVAILABLE FOR USE OR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR OTHER GOODS.
The limitations, exclusions, and disclaimers apply to all claims, irrespective of whether the alleged or actual damages were foreseeable, or a claim for such damages is grounded in contract, warranty, strict liability, negligence, tort, or any other legal basis. In cases where applicable law restricts any liability limitations herein, the parties agree that such limitations will be automatically adjusted, but only to the extent necessary to conform with applicable law. Both parties recognize that the limitations on liability outlined herein constitute negotiated and agreed-upon allocations of risk, and 12NETS INC's compensation for the Products reflects these allocations. These limitations persist even if the fundamental purpose of this Agreement fails or if any remedy provided herein fails.
Approval for returning unused, unopened Products is contingent upon adherence to manufacturer return policies and guidelines, as well as 12NETS INC's ability to return the Product to its vendors. Such Products must be intact and in the original packaging provided by the manufacturer, devoid of visible damage. 12NETS INC is not obligated to accept any returned Products unless an authorized return merchandise authorization (“RMA”) number is obtained, which can be acquired by contacting email@example.com. An RMA number remains valid for five (5) days from the date of issuance unless alternative arrangements are made between the parties when 12NETS INC approves the RMA. The 12NETS INC RMA number must be clearly indicated on the outer shipping box label. Items received at a 12NETS INC return facility without an RMA number or after the specified time period, unless otherwise agreed upon, will be returned to the Customer at the Customer's expense. Unless otherwise agreed by 12NETS INC, the Customer shall bear shipping charges related to returning, exchanging, or replacing Products. Products exchanged or replaced will be shipped back to the Customer at the Customer’s expense. 12NETS INC may, at its discretion, impose restocking fees for items ineligible for return under this policy. Certain manufacturers may require defective or Dead-on Arrival (DOA) Products to be returned directly to them or may impose limitations on the timeframe within which Products can be returned. Consequently, Products found inoperative upon initial use may be eligible for DOA return to or replacement by the manufacturer, subject to the manufacturer’s product defective/DOA return policies. If the Product cannot be returned in accordance with manufacturer guidelines, 12NETS INC will make every effort to repair or replace the Product through the manufacturer’s warranty and will collaborate with vendors to facilitate returns for the Customer.
Any claim, dispute, or controversy (whether in contract, tort, or any other legal theory, whether preexisting, current, or future, and including, but not limited to, statutory, common law, intentional tort, and equitable claims that can be subject to binding arbitration) arising from or related to the Products sold pursuant to this Agreement, the interpretation or application of these Terms, the breach, termination, or validity thereof, the relationships that arise from these Terms (including, to the extent permitted by applicable law, relationships with third parties who are not signatories hereto), or 12NETS INC's or any of its Affiliates' advertising or marketing (collectively, a “Claim”) SHALL BE EXCLUSIVELY AND DEFINITIVELY RESOLVED THROUGH BINDING ARBITRATION BY A SINGLE ARBITRATOR CONDUCTED IN ACCORDANCE WITH THE NATIONAL ARBITRATION RULES OF THE ADR INSTITUTE OF CANADA, INC. Neither 12NETS INC nor the Customer shall have the right to litigate that Claim in court or to have a jury trial concerning that Claim or to engage in pre-arbitration discovery, except as provided for in the applicable arbitration rules or by mutual agreement of the parties involved. Additionally, the Customer shall not have the right to participate as a representative or member of any class of claimants in relation to any Claim. Irrespective of any choice of law provisions in this Agreement, this arbitration shall be governed by the Arbitration Act, 1991 (Ontario), as amended. The arbitration proceedings shall occur solely in Toronto, Ontario, and shall be conducted in the English language. Any court vested with jurisdiction may enter judgment based on the arbitrator's award. Each party shall bear its own costs associated with legal representation, discovery, or research required for arbitration. The existence or outcome of any arbitration shall be treated as confidential. Notwithstanding anything to the contrary herein, all matters concerning the collection of amounts owed to 12NETS INC arising from the Products shall be exclusively litigated in court rather than through arbitration.
These terms and any sale of products hereunder shall be governed by the laws of the province of Ontario and the federal laws of Canada that are applicable therein, without regard to conflicts of laws principles. Any arbitration, enforcement of arbitration, or litigation shall take place exclusively in Toronto, Ontario, and the Customer consents to the non-exclusive jurisdiction of the courts of Ontario concerning any matters arising under or related to this Agreement, waiving the right to change venue. The rights and remedies afforded by 12NETS INC under these Terms are cumulative, are supplementary to, and do not restrict or prejudice any other rights or remedies available under law or in equity.
12NETS INC may assign or subcontract all or any portion of its rights or obligations pertaining to the sale of Products or assign the right to receive payments, without the necessity of Customer's consent. Customer may not assign its rights or obligations under these Terms without the prior written consent of 12NETS INC. Subject to the restrictions on assignment herein, these Terms shall be binding upon and inure to the benefit of the parties hereto and their successors and permitted assigns. No provision of this Agreement shall be considered waived, amended, or modified by either party unless such waiver, amendment, or modification is in writing and signed by both parties. In the event that any term or condition of this Agreement is deemed invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, it shall not affect the other terms and conditions contained herein, or the entirety of this Agreement. Notices furnished under this Agreement shall be in writing and sent to the addresses of 12NETS INC and the Customer indicated in the Product invoice, and shall be considered received upon the earlier of actual receipt, the date of transmission of a notice sent via email, or five (5) days after mailing if mailed with prepaid postage by regular mail, or one (1) day after the notice is dispatched by courier. Any delay or failure by either party to exercise any right or remedy shall not be construed as a waiver of that party's right to enforce such rights subsequently."