TESTFORCE SYSTEMS and TESTFORCE USA
TERMS AND CONDITIONS (TC0601) OF SALE

Thank you for your interest in purchasing product from Testforce Systems Inc and/or Testforce USA (hereinafter “we”, “us”, “our” or “Testforce”) products and services. We value your business and our goal is to make your purchasing experience as smooth as possible. If you have any questions about our quotation or ordering process, please refer to the “Support” section of our website.

An order will constitute a contract between either Testforce Systems Inc. or Testforce USA Inc and yourself when accepted in writing by Testforce at its home office in on either St-Laurent, Quebec, Canada (Testforce Systems) or in Addison, Texas, USA (Testforce USA Inc.). A contract resulting from the acceptance of an order may be cancelled or altered by you only if agreed to in writing by Testforce at its home office, subject to payment of reasonable charges necessary to protect Testforce from loss. Until accepted, as provided herein, an order shall constitute an offer to purchase. Neither the acceptance of any deposit made with an order, nor the acceptance of an order, shall constitute acceptance. Should Testforce refuse the order, we will promptly refund the deposit, if it was prepaid.

THESE TERMS AND CONDITIONS OF SALE TO YOU (OUR CUSTOMER) GOVERNS THE SALE BY TESTFORCE OF ITS PRODUCTS AND/OR SERVICES. NOTWITHSTANDING ANYTHING TO THE CONTRARY, ANY CONFLICTING OR ADDITIONAL TERMS OR CONDITIONS WHICH APPEAR ON ANY PURCHASE ORDER, INQUIRY, REQUEST FOR PRODUCT OR OTHER DOCUMENT SUBMITIED BY YOU, WILL NOT BECOME PART OF THE CONTRACT OF SALE BETWEEN US, UNLESS SPECIFICALLY AGREED TO IN WRITING BY AN AUTHORIZED TESTFORCE REPRESENTATIVE.

1. Terms and Conditions
   • 1.1 General Terms. These terms and conditions (“Terms”), our quotation (if any) and Supplementary Terms, if any, comprise the agreement (“Agreement”) between you and Testforce. You agree to accept and be bound by this Agreement by ordering products by phone, through our website or if you receive ordering or sales documents that reference these Terms. Except as specifically stated above, this Agreement is and shall be the complete and exclusive contract between us with respect to your purchase of the products.
   • 1.2 Supplementary Terms. Some of our products are subject to additional software licenses, limited use label licenses or other written contract terms that you will not find here (“Supplementary Terms”). You will find any Supplementary Terms that apply to your purchase in our quotation to you, on our website, or in literature that accompanies the product. You can also obtain copies from our customer services department (“Customer Services”).
   • 1.3 Terms Conflict. If any conditions within the Agreement documents conflict with each other, you agree to give them the following priority: (a) the quotation; (b) any applicable Supplementary Terms; and (c) these Terms. We expressly reject any other terms or provisions contained in any document you provide, and if the terms and conditions in this Agreement differ from the terms of your offer, this Agreement will serve as the governing terms for our contract.
   • 1.4 When Agreement takes Effect. The Agreement between us is created when you receive email confirmation from an authorized representative of Testforce that we have accepted your order. Nothing shall be binding on Testforce until it has been accepted in writing by an authorized representative.
2. Price
   • 2.1 Determining Price. Prices are valid for 30 days, unless otherwise indicated in writing.
   • 2.2 Taxes and Fees. Our product prices do not include any taxes (including VAT), duties, levies or other government fees that may apply to your order. If they apply, it will be your responsibility to pay them. If we pay them, we will add them to your invoice. If you claim any exemption, you must provide a valid, signed certificate or letter of exemption for each respective jurisdiction.
   • 2.3 Delivery Fees; Freight Policy. You are also responsible for standard delivery and handling charges, if applicable, and our product prices do not include such charges unless expressly stated. If we pay such charges, we will also add these to your invoice.
3. Cancellation and Changes
   • Once you have placed your order, you cannot cancel or change it without our written consent, which shall be at our sole discretion. It is understood that products purchased may be custom designed to your requirements. Cancellation charges may apply.
4. Payment
   • 4.1 Payment Terms. All amounts due shall be in Canadian or US dollars, as per the quotation provided by Testforce where your order is placed. Terms are net 30 days and subject to approved credit. Invoices are issued on the date when Testforce has shipped your product or is ready to ship your product. Any delays to shipment caused by you shall not delay the issuance of an invoice. Testforce may issue invoices on partial shipments for the order shipped.
   • 4.2 No Set Off. Each order is a separate transaction, and you may not off-set payments, including from one order against another.
   • 4.3 Additional Terms. We reserve the right at our sole discretion to require you to make full or partial payment in advance, or provide other security to our satisfaction, if we believe in good faith that your financial condition does not justify the payment terms otherwise specified. You will make all payments in the currency specified in our invoice to you.
   • 4.4 Late Payment. If you are late in making payment then, without affecting our other rights you will make payment to us, upon our demand, of a late-payment charge. The late payment charge will be calculated as interest on the sums due from the payment due date until you make payment in full, at the rate of 1.5% per month 18% annually, or, if less, the maximum amount allowed by law and will also include our reasonable costs of collection (including, without limitation, collection agency fees and attorneys’ fees). We reserve the right to cancel or stop delivery of products in transit and withhold shipments in whole or in part if you do not pay us when due, or if you otherwise do not perform your obligations in this Agreement.
5. Delivery
   • 5.1 Delivery. We will ship products to the destination you specify in your order, FCA Incoterms 2010 our shipping point. By agreeing to these Terms, you (i) give your consent for us to arrange for carriage for all products supplied hereunder on your behalf; and (ii) waive your right to arrange carriage or to give us any specific instructions regarding carriage. We may, in our discretion, make partial shipments and invoice each shipment separately. Our shipping dates are approximate only, and we will not be liable for any loss or damages resulting from any delay in delivery. You may not refuse delivery or otherwise be relieved of any obligations as the result of such delay. If our delivery of a product to you is delayed due to any cause within your control, we will place the delayed products in storage at your risk and expense.
   • 5.2 Delivery Delays. Delivery dates are estimates and Testforce shall not be liable for any failure or delay to make delivery or other default by reason of any occurrence or contingency beyond the reasonable control of Testforce or any of its sources of supply. In the event of any such occurrence or contingency, Testforce may extend delivery schedules or may at its option cancel the order, in whole or in part, without liability other than to return any deposit or prepayment should the whole order be cancelled. Any equipment held for you, at your request, shall be at your sole risk and expense.
   • 5.3 Force Majeure. We assume no responsibility for delivery delays due to Force Majeure. Force Majeure shall include any act, occurrence or omission (or other event) which is beyond the reasonable control of Testforce, but not limited to: fires, explosions, accidents, strikes, lockouts or labour disturbances, floods, droughts, earthquakes, epidemics, seizures of cargo, virus outbreaks affecting supply chains, wars (whether or not declared), civil commotion, acts of God or the public enemy, action of any government, legislature, court or other Governmental Authority, action by any authority, representative or organization exercising or claiming to exercise powers of a government or Governmental Authority, blockades, power failures or curtailments, inadequacy or shortages or curtailments or cessation of supplies of raw materials or other supplies, failure or breakdown of equipment of facilities or any other event beyond the reasonable control of Testforce whether or not similar to the events or occurrences enumerated above. In no circumstances shall problems with making payments constitute Force Majeure.
   • 5.4 Special Containers. An extra charge will apply for special containers.
   • 5.5 Transport Charges. You are responsible for all transportation charges from the Testforce shipping point.
6. Risk of Loss and Title
   • 6.1 Title to and risk of loss of the products will pass to you when we load them onto the commercial carrier at our facility. Testforce will obtain a clear receipt from the carrier and all claims for damages, or shortages in shipment, must be made against the carrier by you. A copy of the carrier’s inspection report shall be forwarded to Testforce, without delay.
7. Returns and Shortages
   • 7.1 Returns. Customer Services must pre-authorize all product returns by issuing to you a returned materials authorization number as outlined below. Customer Services will issue an RMA for any product that is damaged or defective on receipt, provided you contact Customer Services within ten (10) days after receiving the product and discovering the defect, and provided such damage or defect has not been caused by any failure by you or the carrier to handle or store products using reasonable care or as otherwise indicated by Testforce. Product must be returned to us prepaid and all product covered by this warranty that is repaired or replaced will be returned to you in accordance with Section 5. If you do not contact us within this five-day period, we will deem the product to be accepted, subject to the limited warranty rights provided in Section 8 below.
   • 7.2 Product-Credit Eligibility. If we exercise our discretion to authorize a product for return, then the product must arrive at our facilities in a condition satisfactory for resale. Any return not due to our error is subject to a restocking charge. We do not credit shipping charges. You will not receive credit for any product returned without our prior consent.
8. Warranties
   • 8.1 Limited Warranties. We warrant that each Product will be free of defects in materials and workmanship, when subjected to normal, proper and intended usage by properly trained personnel. This warranty lasts from the time we ship the Product until the earlier of: (a) its expiry or “use by” date; and (b) its specified number of uses. If we do not specify the expiry date, the number of uses, or a different warranty period, the warranty will last for twelve (12) months from the date we ship the product.
   • 8.2 Exclusions. In addition to our exclusion for third party products as set out in Section 8.3 of these Terms, our warranties do not apply to (a) normal wear and tear; (b) your misuse, fault or negligence; (c) products sold to you as ‘used’ products; (d) failure to follow our instructions or operating guidelines, or protocols, operation outside of stated environmental or use specifications, or (e) products manufactured in accordance with specifications you gave us. ADDITIONALLY, ANY MAINTENANCE, REPAIR, SERVICE OR ALTERATION TO OR OF, OR OTHER TAMPERING WITH, THE PRODUCTS PERFORMED BY ANY PERSON OR ENTITY OTHER THAN US WITHOUT OUR PRIOR WRITTEN APPROVAL, OR ANY USE OF REPLACEMENT PARTS WE HAVE NOT SUPPLIED, WILL IMMEDIATELY VOID AND CANCEL ALL WARRANTIES WITH RESPECT TO THE AFFECTED PRODUCTS.
   • 8.3 Limitations.
     • (A) OUR WARRANTIES EXTEND ONLY TO YOU, THE ORIGINAL PURCHASER AND YOU CANNOT TRANSFER THEM. OUR OBLIGATION TO REPAIR OR REPLACE A PRODUCT IS YOUR SOLE REMEDY.
     • (B) EXCEPT AS OTHERWISE STATED, WE DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES (a) OF MERCHANTABILITY; (b) OF FITNESS FOR ANY PARTICULAR PURPOSE; AND/ OR (c) THAT THE PRODUCTS ARE ERROR-FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT.
   • 8.4 Remedies. During the applicable warranty period only, for products not meeting our warranty, we agree, in our sole discretion, to repair or replace the non-conforming product and/or provide additional parts as reasonably necessary to comply with our warranty obligations, but you must first promptly notify us in writing when you discover any defect or non conformance, and include in the notice clear details of your warranty claim. After our review, assuming we authorize the product return, we will provide you with service data and/or a Return Material Authorization (“RMA”), which may include decontamination procedures and other product-specific handling instructions that you must follow. For valid product warranty claims timely made in accordance with this Agreement, you must return the non-conforming products to us, unless we agree otherwise, and we will prepay the shipping costs. We will ship your repaired or replacement products according to our Delivery terms in Section 5 of these Terms.
   • 8.5 Third Party Products. The warranty for products manufactured or supplied by third parties and distributed by Testforce are provided by the third party supplier. We will assign to you any warranty rights we may receive from the original manufacturer or third-party supplier, to the extent the original manufacturer or third-party supplier allows.
   • 8.6 Important Restrictions on Use of Product. You assume all risk and responsibility related to the use of the product and acknowledge the product is NOT a safety device and should not be relied upon as a safety device. If you intend to use the products to assist with safety or as a person or property damage prevention tool, you do so at its own risk and assume all responsibility for any resulting damage, injury, or expense.
9. Intellectual Property
   • 9.1 Use Limitations. As between you and us, we exclusively own all intellectual property rights relating to our products and services. Our sale of products to you grants you only a limited, nontransferable right under our intellectual property to use the quantity of products purchased from us for your internal purposes. No right to transfer, distribute or resell our products or any of their components is conveyed expressly, by implication, or by estoppel. Unless expressly permitted by us in writing, you will not modify, change, remove, cover or otherwise obscure any of our brands, trade or service marks on the products. Nothing in the Agreement limits our ability to enforce our intellectual property rights.
   • 9.2 Intellectual Property Ownership. We exclusively own all intellectual property rights in any inventions (patentable or otherwise), discoveries, improvements, data, know-how, or other results that are conceived, developed, discovered, reduced to practice, or generated by or for us, or jointly by you and us, in relation to processes, designs and methods utilized in manufacture of a product. You agree to transfer and assign to us all your right, title, and interest in and to any joint intellectual property. At our request and at our expense, you will help us secure and record our rights in such intellectual property. Nothing herein shall be deemed to provide to you any rights in patents, trade secrets, trade names, copyrights, logos, service marks or trademarks or other intellectual property. You acknowledge and agree not to use our name, trade name, copyrights, logos, service marks or trademarks in any manner, including, without limitation, in any press release, advertising or for promotional purposes, without our prior written consent. You shall be responsible for any breach of a third-party intellectual property rights by your employees, agents, contractors, customers, or invitees. Any third-party software that is part of an order is subject to the license agreement of our third-party partner. You have no right to use and are not licensed to use such software until you have agreed to the terms and conditions of our third-party software partner.
10. Custom Products
    • 10.1 Declining to Make or Deliver. If you ask us to manufacture a custom product, we may decline to design or manufacture that product at any stage of the process if the product is unsuitable or commercially impractical to manufacture as specified. If so, we will notify you, and you will not be obligated to pay any fees for any expenses we incurred in connection with the declined product. If a custom component or material fails, we may delay or cancel a custom product’s delivery without liability to us. You agree that all custom product is sold to you on an “as is” basis and shall not be subject to our standard warranty.
    • 10.2 Your Responsibilities. By submitting an order for a custom product, you represent and agree that you (a) have given us all information you know of regarding any biological, radiological, and chemical hazards associated with the handling, transport, exposure to, or other use of the materials you supply to us; and (b) have the requisite rights, including but not limited to any necessary intellectual property rights, to instruct manufacture of such product.
11. Limitations and Exclusions of Liability
    • TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANY SUGGESTION TO THE CONTRARY HEREIN, WE WILL NOT BE LIABLE UNDER ANY LEGAL THEORY (INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY OF ANY KIND) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, MULTIPLE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO ALL COSTS OF COVER, LOST PROFITS, LOST DATA, LOSS OF BUSINESS, INTERRUPTION OF BUSINESS, ECONOMIC LOSS, OVERHEAD EXPENSES, LOSS OF GOODWILL OR LOSS OF REVENUE) THAT YOU MIGHT INCUR UNDER THE AGREEMENT, OR THAT MAY ARISE FROM OR IN CONNECTION WITH OUR PRODUCTS OR SERVICES, EVEN IF WE HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES AND IRRESPECTIVE OF THE NATURE OF THE CLAIM ASSERTED.
    • IN ADDITION, OUR MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, OR ANY PRODUCT UNIT OR SERVICE, IS LIMITED TO 100% OF THE AMOUNT YOU PAID TO US FOR THE SPECIFIC PRODUCT PURCHASED THAT GAVE RISE TO THE LIABILITY.
    • THE PROVISIONS IN THIS SECTION DO NOT LIMIT OUR LIABILITY THAT CANNOT BE LIMITED BY LAW, INCLUDING BUT NOT LIMITED TO LIABILITY FOR FRAUD AND DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE.
12. Export Controls
    • 12.1 Export Controls. You agree to comply with all applicable export laws and regulations (including “deemed export” and “deemed re-export” regulations) in your jurisdiction. No data, information, software programs and/or materials resulting from this Agreement will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.
13. Miscellaneous
    • 13.1 No Assignment. You may not delegate any duties nor assign any rights or claims hereunder without our prior written consent, and any such attempted delegation or assignment will be void. We may assign our rights and obligations to any by providing written notice to you.
    • 13.2 Governing Law. The Agreement and performance under it will be governed by either (a) the laws of the Province of Quebec, if the quotation and order were issued by Testforce Systems Canada; or (b) the laws of the State of Florida if the quotation and order were issued by Testforce USA Inc. Any action arising under the Agreement must be brought in either the courts located in (a) Montreal, Quebec, Canada for orders issued by Testforce Systems Canada, or (b) Miami, Florida, USA for orders issued by Testforce USA Inc.; and in any event within one year from the date that the cause of action arose. The U.N. Convention on Contracts for the International Sale of Goods is hereby expressly excluded.
    • 13.3 Regulatory Restrictions. In addition to the restrictions set out in Section 11 of these Terms: (a) you must use our products in accordance with our instructions; (b) you are solely responsible for making sure that the way you use our products complies with applicable laws, regulations and governmental policies; (c) you must obtain all necessary approvals and permissions you may need; and (d) it is solely your responsibility to make sure the products are suitable for your particular use.
    • 13.4 Uncontrollable Circumstances. We will not be responsible or liable for failing to perform our obligations under the Agreement to the extent caused by circumstances beyond our reasonable control. In certain situations, we may use our reasonable judgment and apportion products then available for delivery fairly among our customers.
    • 13.5 No Waiver; Invalidity. Our failure to exercise any rights under the Agreement is not a waiver of our rights to damages for your breach of contract and is not a waiver of any subsequent breach. If any provision or part of the Agreement is found by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability will not affect the other provisions of the Agreement. No person other than you or us will have any rights under the Agreement.
    • 13.6 Headings. Headings are for convenience only and shall not be used in the interpretation of these Terms.
    • 13.7 Confidentiality. You agree to keep confidential any non-public technical information, commercial information (including prices, without limitation) or instructions (including any gene sequences, oligo types or sequences) received from us as a result of discussions, negotiations and other communications between us in relation to our products or services.
    • 13.8 Notices. Any notice or communication required or permitted under these Terms must be in writing and will be deemed received when personally delivered, or 3 business days after being sent by certified mail, postage prepaid, to a party’s specified address.
    • 13.9 Requirement to Reduce to Writing. No waiver, consent, modification, amendment or changes to the terms of the Agreement will be binding unless in writing and signed by both of us. Our failure to object to terms contained in any subsequent communication from you will not be a waiver or modification of our Agreement.
    • 13.10 Severability. Any provision of the Agreement which is prohibited, or which is held to be void or unenforceable shall be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.
    • 13.11 Language: The parties hereto expressly requested that this document be drafted in English. Les parties aux présentes confirment leur volonté que cette convention soit rédigé en anglais seulement.