Terms and Conditions of Sale
AGREEMENT REGARDING TERMS AND CONDITIONS OF SALE AND WEBSITE USE
Updated September 12, 2019
This Agreement Regarding Terms and Conditions of Sale and Website Use ("Agreement") is made and entered into by and between eDist Canada Corp., a Nova Scotia Unlimited liability company ("eDist") and the Person (as defined in Section 1 below) identified in the New Account Form of which this Agreement is a part ("Buyer") and constitutes a binding agreement between eDist and Buyer governing all transactions between eDist and Buyer. Unless otherwise agreed to in a writing signed by an eDist Authorized Representative (as defined in Section 1 below), this Agreement specifically applies to and governs: (A) all purchases of Products and/or Services (as defined in Section 1 below) by Buyer from eDist; and (B) use by Buyer of the Website (as defined in Section 1 below). Certain capitalized terms used in this Agreement are defined in Section 1 below. Other capitalized terms used herein shall have the meaning set forth in the Section or Paragraph in which defined. BY PLACING AN ORDER FOR THE PURCHASE OF PRODUCTS AND/OR SERVICES FROM EDIST, BUYER IS AGREEING TO ALL TERMS AND CONDITIONS SET FORTH HEREIN.
1. Definitions; As used in this Agreement:
- "Buyer" means Person who purchases through eDist and or a CHT.
- "CHT" means a Person who or which (a) processes sales transactions of products or services on behalf of a Buyer, or Distributor and/or (b) provides technical support, training, and other "back office" and support services pursuant to terms and conditions set forth in an agreement between the CHT and the Buyer and/or Distributor as applicable, and is who or which is eDist or approved and contracted by eDist to provide such services.
- "CHT Agreement(s)" means a separate agreement between the Buyer and the CHT that is approved by eDist.
- "eDist Authorized Representative" means the President, Chief Executive Officer, Chief Financial Officer, Controller or a Vice President of eDist.
- "eDist Indemnified Parties" shall have the meaning set forth in Section 20.
- "eDist Supplier or Supplier" means all Persons providing goods or services to eDist in connection with, or to facilitate, eDist's sale of Products and Services, including but not limited to, manufacturers and software and/or hardware licensors.
- "End User" means Person that purchases one or more Products or Services including, but not limited, to software licenses for internal use or subscription licenses to hosted or "cloud based" Services and, if applicable with respect to hosted Services, is registered in accordance with the Supplier's instructions and requirements.
- "Governmental Entity" means any: (i) Province, other jurisdiction of any nature; (ii) federal, Province, local, or other government; (iii) governmental or quasi-governmental authority of any nature (including any governmental agency, branch, department, official, or entity and any court or other tribunal); or (iv) body exercising, or entitled to exercise, any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power of any nature.
- "Laws" means federal, provincial, local, and other laws, constitutions, ordinances, principles of common law, regulations, statutes or administrative Orders.
- "New Account Form" means the New Account Form document completed and signed by Buyer and submitted to and accepted by eDist.
- "Orders" means Orders for Products or Services, including Support Orders.
- "Parties" means eDist and Buyer (each, a "Party").
- "Person" means any individual, corporation (including any non-profit corporation), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, labor union, Governmental Entity or any other entity.
- "Products" means equipment, accessories, other goods and software licenses sold by eDist.
- "Services" means repairs (both warranty and non-warranty), technical support, installation, training, marketing, sales with or without tax collection, and other services sold or otherwise provided by eDist or by a contracted Supplier thereof.
- "Support Orders" means Orders for support Services placed by Buyer and accepted by eDist.
- "Website" means collectively, the websites at http://edistcanada.ca and all associated websites controlled by eDist. Other capitalized terms defined herein shall have the meaning set forth in the Section or Paragraph in which defined.
2. Entire Agreement; No Modification
This Agreement, together with the New Account Form and, if applicable, Addenda to this Agreement applicable to specific Suppliers, Support Orders CHT Agreements, if applicable, constitute the sole and entire agreement of the Parties with respect to the subject matter of this Agreement, regardless of the timing, form or content of other communications between the Parties. No additional or conflicting provisions contained in any communications (including, but not limited, to Buyer forms of purchase orders) from or with Buyer will be considered to be part of this Agreement. Receipt of a purchase order or other communication from Buyer will be considered an unconditional acceptance of this Agreement, without regard to any additional or conflicting terms proposed by Buyer. None of the provisions of this Agreement may be varied, amended, or modified by Buyer except by a written agreement signed by an eDist Authorized Representative. eDist reserves the right to change, amend, or modify any and all of terms and conditions contained in this Agreement, with or without notice, by posting such changes on the Website. In the event of any conflict between the provisions of this Agreement, the New Account Form and any Orders or CHT Agreements, if applicable, the provisions of this Agreement shall be controlling.
3. Prices; Taxes, Insurance & Other Charges.
- The prices charged for Products and Services purchased by Buyer from eDist shall be the amounts set forth on the Website or other quotation or as provided by the applicable invoice relating to such Products and Services. Quoted prices will remain in effect only until the expiration date of the quote or eDist's acceptance of Buyer's Order, and such prices are subject to shortages in materials or resources, increases in the cost of manufacturing or other factors. All prices, Products and Services are subject to change and availability without notice.
- Unless as specifically amended in writing with an Addendum to these terms and Conditions, prices are exclusive of all Taxes (as hereinafter defined). Buyer shall pay all applicable taxes, including sales, use, income, personal property, value-added, excise or stamp taxes and duties and any other taxes and duties imposed by any and all Governmental Entities with respect to purchases of Products and Services from eDist, including penalties and interest, but specifically excluding taxes based upon eDist's income (collectively, "Taxes"). Sales tax and other applicable Taxes will be charged by eDist, where applicable, unless a certificate of exemption is on file with eDist, however, except as required by law, eDist shall have no obligation, responsibility or liability for collection of sale, use, excise, income or other taxes. In the event Taxes are imposed for transactions in a location where Buyer is not authorized to transact business, authorization has expired or due to other causes, then Buyer is responsible for all Taxes. If required by Laws, Buyer shall provide to eDist, promptly and without cost, all documentation requested or required by any Governmental Entity from eDist in connection with purchases made by Buyer. eDist may suspend delivery of Products and Services to Buyer and Buyer's use of the Website until Buyer has provided such documentation. Promptly upon request by eDist, Buyer will provide eDist with proof of payment of all Taxes.
Unless otherwise agreed in writing by eDist, Buyer shall pay all freight, insurance and other charges associated with Buyer's purchase of Products and/or Services. Shipping and handling charges and insurance are not included in the prices for Products or Services unless expressly agreed to by eDist at the time of sale.
4. Orders Subject to Acceptance.
Buyer's Order is subject to acceptance or cancellation by eDist, in eDist's sole discretion. Terms of payment are within eDist's sole discretion. Each accepted Order will be interpreted as a single Order, independent of any other Orders. Orders are subject to availability of Products and Services and are cancellable by eDist. Products not listed in eDist's catalog are available on special Order. A deposit or prepayment of up to the full amount of the sale of such Products may be required, in eDist's sole discretion, on special ordered items. Orders are not cancellable by Buyer.
5. Selling Cloud Services and Royalties
Upon engagement with a separate program agreement eDist will make direct sales to end users and pay royalties to Buyer for the subscription term based upon rates at time of payment and as long as Buyer remains in good standing with the program as determined by eDist and or Vendor, at their sole discretion.
6. Payment Methods and Terms.
- If Buyer has a previously established credit arrangement ("credit line") with eDist, invoices are due and payable within the time period noted on Buyer's invoice, subject to continuing credit approval by eDist. Such approval may be revoked without further notice from eDist; past due accounts may have their credit lines suspended. eDist may invoice parts of an Order separately or may invoice multiple purchases of Products and Services in one invoice to Buyer. eDist may accept payment by Buyer's credit card, debit card or other like charge account (the "Card") at time of sale, in eDist's sole discretion, provided that Cards may not be used for payment of open account balances on Buyer's previously established credit line with eDist. Purchases of Products and Services for which payment is not made as set forth above shall be paid for by Buyer in advance of shipment or C.O.D. Orders shipped to past due accounts will be shipped C.O.D., and payment of all overdue amounts shall be required as part of the C.O.D. payment.
- In the absence of other arrangements approved in writing by eDist, all payments due eDist from Buyer shall be made at the eDist location where the Products or Services were purchased or shall be mailed to eDist Canada Corp., PO Box 929, 31 Adela├?┬»de St. East, Toronto, Ontario, M5C 2K3.
- eDist is not responsible for pricing, typographical or other errors on the Website or in any offer and reserves the right to cancel Orders arising from such errors. Buyer agrees that all invoices shall be deemed accurate unless Buyer advises eDist in writing of a bona fide, material error within fourteen (14) days of the date of such invoice. If Buyer advises eDist in writing of a material error, payment of any amounts corrected or modified by eDist in writing shall be due within ten (10) days of such correction, and all other amounts shall be paid by Buyer by the invoice due date. If Buyer withholds payment of any invoiced amounts based on a claim by Buyer that such amounts are erroneous, and eDist subsequently determines that such invoiced amounts are accurate, Buyer shall pay interest on such amounts at the rate described in Paragraph 5(d) below from the due date for such amounts until eDist's receipt of such amounts.
- Buyer agrees to pay a returned check charge to recover bank and handling fees each and every time a Buyer's check is returned for any reason by a financial institution. Buyer agrees to pay interest on all amounts past-due to eDist at the rate of up to 1.5% per month or the maximum rate permitted by law, whichever is less. In addition, eDist, without waiving any other rights or remedies to which it may be entitled, shall have the right to suspend or terminate any or all shipments of Products and the provision of any or all Services to Buyer and to refuse additional Orders for Products or Services from Buyer, until eDist's receipt of full payment of all past-due amounts. eDist shall have no liability to Buyer for any such suspension, termination or refusal. Buyer shall pay all reasonable attorneys' and collection company fees, cost and expenses (including court costs) incurred in collecting amounts due from Buyer.
If shipping and delivery dates are provided, such dates are estimates only. Deliveries of all Products will be made within commercially reasonable time, unless a specific delivery time cannot be provided or has not been determined by the supplier of the Products. All shipments are F.O.B. eDist's shipping point, unless otherwise agreed in writing by eDist. Buyer bears all risk of loss from and after delivery of the Products by eDist to the carrier or delivery service. Buyer assumes all risk of loss in shipping, fraudulent Order placement (including, but not limited to, fraudulent Orders arising from Buyer's failure to maintain the confidentiality of Buyer's User ID or Password, as detailed in Section 12) and all liability for loss or damage, whether direct, indirect, consequential or otherwise, or due to delays once the Products have been delivered to the carrier. Buyer shall pay for any and all insurance necessary to protect Buyer against any loss in shipping. eDist shall not be responsible for loss, damage, delay or failure with respect to the Products due to, or arising from, shortage of raw materials, fires, labor troubles of any kind, accidents, breakdown of machinery, government acts of any kind, failure of suppliers, subcontractors or suppliers to deliver materials or supplies or to provide services as agreed or contemplated by past dealings, transportation difficulties of any kind, acts of God, acts of Buyer or anything reasonably beyond eDist's control, whether or not presently occurring or contemplated by either Party. eDist shall not be liable for damages, general, consequential or otherwise, or for failure to give notice of any delay. eDist shall have the right to deliver Products in installments.
- Except as provided in this Section 7, receipt of Products or Services by Buyer shall be deemed acceptance of the Products or Services by Buyer.
- All claims for defective Products or Services, for revocation of acceptances, for shortages, for delays or failures in shipment or delivery, or for any other cause shall be deemed waived and released by the Buyer unless made in writing within seven (7) days after receipt of the Products or Services in question. Any acceptance by eDist of claims outside of these terms does not constitute a modification of this Agreement and shall be considered individually and separate thereof. All claims must Province specifically and in reasonable detail the bases for the claims and must be accompanied by delivery or service receipts or photocopies of sales or service Order or packing slips pertaining to the Products or Services in issue, as applicable. All Products and Services as to which Buyer has not made a timely claim as provided above shall be paid for by the Buyer in accordance with Section 5 above.
- As a condition to making a claim for missing or damaged Products, customer is responsible for initiating and pursuing claims against UPS, FedEx or such other shipping company(ies) as applicable for items claimed not received and/or damaged.
9. Limitation of Liability.
EDIST IS ONLY ACTING AS A DISTRIBUTOR UNDER THE DIRECTION OF EACH EDIST SUPPLIER. EDIST WILL MAKE COMMERCIALLY REASONABLE, GOOD FAITH EFFORTS TO CONDUCT BUSINESS IN A MANNER WHICH BENEFITS EDIST AND EACH EDIST SUPPLIER AND BUYER, AS DETERMINED IN EDIST'S SOLE AND ABSOLUTE DISCRETION. HOWEVER, EDIST IS NOT AND SHALL NOT BE RESPONSIBLE, AND EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY, FOR ANY ACTION AGAINST OR LOSS, DAMAGE, OR CONSEQUENCE SUFFERED BY BUYER ARISING OUT OF, RESULTING FROM OR RELATED TO BUYER'S FAILURE TO ABIDE BY EACH EDIST SUPPLIER'S REQUIREMENTS AND OBLIGATIONS, WHETHER SET FORTH IN A SEPARATE CONTRACT BETWEEN THE EDIST SUPPLIER AND BUYER, A PROGRAM GUIDE OR OTHER PROGRAM MATERIAL, ANY ORAL OR WRITTEN COMMUNICATION FROM THE EDIST SUPPLIER TO BUYER, OR OTHERWISE. ANY AND ALL EDIST SUPPLIER REQUIREMENTS AND OBLIGATIONS APPLICABLE TO BUYER MAY CHANGE FROM TIME TO TIME WITH OR WITHOUT NOTICE FROM EDIST. BUYER IS SOLELY RESPONSIBLE TO MONITOR AND COMPLY WITH ANY AND ALL CHANGES, REQUIREMENTS, OBLIGATIONS OR ACTIONS THAT EACH EDIST SUPPLIER MAY MAKE TO ITS CONTRACTS AND PROGRAMS OR OTHERWISE IMPOSE ON BUYER. BUYER HAS READ AND AGREED TO ADHERE TO ALL TERMS AND CONDITIONS AND REQUIREMENTS EACH SUPPLIER, INCLUDING ANY ADDENDA APPLICABLE TO ORDERS AND BUSINESS DEALINGS INVOLVING SUCH SUPPLIERS. EDIST'S LIABILITY SHALL BE LIMITED TO REPLACEMENT OR REPAIR OF DEFECTIVE PRODUCTS OR SERVICES UPON RECEIPT OF TIMELY NOTICE IN ACCORDANCE WITH SECTION 7 ABOVE AND RECEIPT OF PRODUCTS AND DOCUMENTS AT EDIST'S PLACE OF BUSINESS NOT LATER THAN THE FOURTEEN (14) DAYS AFTER BUYER'S RECEIPT OF PRODUCTS OR SERVICES. EXCEPT WHERE PROHIBITED BY LAW, IN NO EVENT WILL EDIST OR ANY EDIST INDEMNIFIED PARTY BE LIABLE TO BUYER FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, EVEN IF EDIST OR A EDIST INDEMNIFIED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR TRANSPORTATION, INSTALLATION, REMOVAL, ADJUSTMENT OR OTHER EXPENSES, OR ANY OTHER LOSS OR DAMAGE WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS AND/OR SERVICES PURCHASED FROM EDIST, OR WHICH MAY ARISE IN CONNECTION WITH THE USE OR INSTALLATION OF SUCH PRODUCTS AND/OR SERVICES, LATE DELIVERY, FAILURE OF DELIVERY, THE SUSPENSION OR CANCELLATION OF A BUYER BY A SUPPLIER, THE PERFORMANCE OR LACK THEREOF BY A CHT, THE USE, INABILITY TO USE, OR PERFORMANCE OF THE WEBSITE, OR ANY OTHER CAUSE. IF, NOTWITHSTANDING THE OTHER PROVISIONS OF THIS AGREEMENT, EDIST OR AN EDIST INDEMNIFIED PARTY IS FOUND TO BE LIABLE TO BUYER FOR ANY DAMAGE OR LOSS WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH THE PRODUCTS AND/OR SERVICES PURCHASED FROM EDIST, OR WHICH MAY ARISE IN CONNECTION WITH THE USE OR INSTALLATION OF SUCH PRODUCTS AND/OR SERVICES, LATE DELIVERY, FAILURE OF DELIVERY, THE USE, INABILITY TO USE, OR PERFORMANCE OF THE WEBSITE, OR ANY OTHER CAUSE, EDIST'S LIABILITY SHALL IN NO EVENT EXCEED AN AMOUNT EQUAL TO ONE-HALF OF THE COSTS OF THE PRODUCTS AND/OR SERVICES GIVING RISE TO THE LIABILITY (AS OPPOSED TO THE COST OF ALL PRODUCTS AND/OR SERVICES PURCHASED BY BUYER FROM EDIST) OR $1,000.00, WHICHEVER IS LESS. IN NO EVENT SHALL EDIST HAVE ANY LIABILITY OR RESPONSIBILITY OF ANY TYPE WITH RESPECT TO ANY CLAIM WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH THE PRODUCTS AND/OR SERVICES PURCHASED FROM EDIST, OR WHICH MAY ARISE IN CONNECTION WITH THE USE OR INSTALLATION OF SUCH PRODUCTS AND/OR SERVICES, LATE DELIVERY, FAILURE OF DELIVERY, THE USE, INABILITY TO USE, OR PERFORMANCE OF THE WEBSITE, OR ANY OTHER CAUSE, UNLESS SUCH CLAIM IS MADE BY BUYER WITHIN THREE HUNDRED SIXTY FIVE (365) DAYS AFTER THE DATE OF BUYER'S RECEIPT OF THE PRODUCT OR SERVICE GIVING RISE TO THE CLAIM, AS THE CASE MAY BE, TIME BEING OF THE ESSENCE. ANY AND ALL CLAIMS NOT MADE WITHIN SUCH THREE HUNDRED SIXTY FIVE (365) DAY PERIOD SHALL BE TIME BARRED, WAIVED AND RELEASED FOREVER.
10. Returned Products and Credits.
- Subject to the other provisions of this Agreement, eDist may accept, in eDist's sole discretion, a return of Products solely for exchange or credit (not for refund) within thirty (30) days of the date of purchase of such Products. Credits not used by Buyer within 365 days of the date granted may be forfeited at eDist's sole discretion. In no case shall the return of Products be permitted without eDist's prior written consent. Opened or installed software is not returnable. Buyer acknowledges that Supplier policies prohibit the return of certain items and it is Buyer's sole responsibility to be aware of Supplier policies which may change from time to time with or without notice. Only unused, non-discontinued Products in original unopened packaging and which have been paid for by Buyer in accordance with eDist's payment terms and which are accompanied by valid proof of purchase will be accepted by eDist for return for exchange or credit. In no event shall eDist be obligated to replace any Products that have been abused, improperly installed or otherwise misused. Products must be securely packed in cartons with sufficient packing material to reach eDist without damage and shipped prepaid at Buyer's sole expense. Material accepted for credit will be subject to a fifteen percent (15%) charge to Buyer for service and handling unless such charge is waived or modified in writing by eDist. Buyer shall be solely responsible for the monitoring of all returns of Products permitted by eDist and to provide proof of return to eDist.
- Replacement by eDist of Products that Buyer has not yet returned to eDist may be permitted by eDist in its sole discretion and in each instance shall be considered a new sale.
11. Limitation on Warranties.
All Products sold by eDist carry only the warranty(ies), if any, of the supplier(s) of such Products to the Buyer only. EDIST MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY OF FITNESS FOR ANY PARTICULAR PURPOSE OR MERCHANTABILITY. EDIST EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE PRODUCTS AND SERVICES SOLD TO BUYER, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. No agent, employee, or representative of eDist is authorized to bind eDist to any affirmation, contract, representation or warranty, oral or written, unless by separate written instrument written and signed by an eDist Authorized Representative which by its terms Provinces that it modifies this Agreement.
12. Service Agreements.
Payment for all Support Orders and any other technical support and CHT may be required in advance, in eDist's sole discretion, and cannot be cancelled without 30 days advance written notice.
13. Website Use.
- Buyer shall create a user identification ("User I.D.") and a password ("Password") when completing the New Account Form, or by such other procedure adopted by eDist from time to time. Buyer's choice and establishment of a User I.D. and Password is a precondition to use of the Website. Protected areas of the Website cannot be accessed and used without a User I.D. and Password. The Website includes mechanisms which permit Buyer to change Buyer's User I.D. and Password.
- Buyer is entirely responsible for maintaining the confidentiality of Buyer's User I.D. and Password and is obligated to make it unique, complex, and confidential. Buyer is and shall be fully responsible for all activities occurring under Buyer's User I.D. and Password. Buyer shall notify eDist immediately if Buyer suspects, detects or receives notice of any unauthorized use of Buyer's User I.D and Password or any other breach of security with reference to Buyer's use of the Website. In such event, Buyer is obligated to change Buyer's User I.D. and Password immediately pending resolution of the unauthorized use or security breach. Buyer may not use any other Person's User I.D. or Password at any time and shall not share their confidential password with any Party outside this Agreement. Buyer may be held liable for losses incurred by eDist or any other Person arising from any Person other than Buyer using Buyer's User I.D. or Password as a result of Buyer failing to keep that information secure and confidential. eDist cannot and will not be liable for any damage or loss arising from Buyer's failure to meet its obligations under this Paragraph 12(b), or arising from unauthorized use of Buyer's User I.D. or Password, except in the case of gross negligence or intentional misconduct by eDist. Similarly, eDist shall not be responsible for unauthorized use of any Buyer's Card or other account information (including, but not limited to, Buyer's name, billing address, Card number(s), related security code number, and Card expiration date(s)) by any Person unless such information was disclosed by eDist to such other Person through eDist's gross negligence or willful misconduct.
- Buyer shall provide all information and execute all documents which eDist may reasonably require for proper use of the Website by Buyer. Buyer represents and agrees that all information and documentation which Buyer provides is true, accurate, current and complete. Buyer shall update and maintain all information and documentation so that it is true, accurate, current and complete at all times during Buyer's use of the Website and the purchase by Buyer of Products and Services from eDist. Buyer shall notify eDist promptly of any and all inaccuracies in or changes to such information and documentation. eDist shall in no event be liable for any claims, debts, demands, suits, causes of action, damages, losses, liabilities and costs, including but not limited to reasonable attorneys' fees, court costs, and costs of any administrative proceeding of any nature or liabilities of any kind ("Claims") which result, directly or indirectly, from Buyer's failure to provide eDist with true, accurate, current and complete information and documentation, and shall indemnify and hold eDist harmless from and against any and all damages, losses, costs and expenses arising therefrom.
- Buyer may not use the Website for any illegal purpose or otherwise in violation of applicable Laws, or in any manner inconsistent with this Agreement.
- Buyer shall comply with this Agreement and all applicable eDist policies and limits concerning use of the Website, as updated by eDist from time to time, including without limitation: (i) eDist's requirements for data security; and (ii) any operating rules and/or policies.
- eDist has the right, in eDist's sole discretion: (i) to change, suspend or discontinue the Website; and (ii) to impose limits on certain features or restrict access to parts or all of the Website, without notice and without liability, whenever deemed necessary by eDist to protect the integrity of the Website or for any other reason. eDist reserves the right to modify the features and functionality of the Website, at any time and from time to time, without notice; provided, however, that eDist will not modify the Website in a manner that would, as determined by eDist in its sole discretion, materially adversely affect the use of the Website, without providing prior notice to Buyer of any such modification (except in case of emergency).
EDIST DOES NOT PROMISE THAT THE WEBSITE OR ANY CONTENT, SERVICE OR FEATURE OF THE WEBSITE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT BUYER'S USE OF THE WEBSITE WILL PROVIDE SPECIFIC RESULTS. EDIST MAKES NO WARRANTIES REGARDING THE QUALITY, RELIABILITY, TIMELINESS OR SECURITY OF THE INTERNET OR ANY PORTION THEREOF (INCLUDING, BUT NOT LIMITED TO, THE "WORLD WIDE WEB") OR ANY TELEPHONE SERVICE OR INTERNET PROVIDER, OR THAT ANY SERVICES ESTABLISHED THEREON WILL BE UNINTERRUPTED OR ERROR-FREE. THE WEBSITE AND ITS CONTENT ARE DELIVERED ON AN "AS-IS" AND "AS-AVAILABLE" BASIS. ALL INFORMATION PROVIDED THROUGH THE WEBSITE IS SUBJECT TO CHANGE WITHOUT NOTICE. EDIST CANNOT ENSURE THAT ANY FILES OR OTHER DATA BUYER IS PERMITTED TO DOWNLOAD FROM THE WEBSITE WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. EDIST DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EDIST DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY OTHER PERSON IN CONNECTION WITH OR RELATED TO BUYER'S USE OF THE WEBSITE AND/OR ANY OTHER EDIST SERVICES. BUYER ASSUMES TOTAL RESPONSIBILITY FOR ITS USE OF THE WEBSITE AND ANY LINKED SITES. BUYER'S SOLE REMEDY AGAINST EDIST FOR DISSATISFACTION WITH THE WEBSITE OR ANY CONTENT IS TO STOP USING THE WEBSITE. THIS LIMITATION OF RELIEF IS A PART OF THE AGREEMENT BETWEEN THE PARTIES, WITHOUT WHICH, EDIST WOULD NOT PERMIT USE OF THE WEBSITE.
THE ABOVE DISCLAIMERS APPLY TO ALL DAMAGES, LIABILITY OR INJURIES CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OF OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE, WHETHER BASED ON BREACH OF CONTRACT, TORT, NEGLIGENCE OR ANY OTHER CAUSE OF ACTION OR THEORY OF LIABILITY.
THE WEBSITE OR THIRD PARTIES MAY PROVIDE LINKS TO OTHER INTERNET RESOURCES INCLUDING, BUT NOT LIMITED TO, WORLD WIDE WEB SITES OTHER THAN THE WEBSITE. EDIST HAS NO CONTROL OVER SUCH WEB SITES AND RESOURCES. EDIST IS NOT RESPONSIBLE FOR THE AVAILABILITY OF SUCH EXTERNAL WEB SITES OR RESOURCES, AND DOES NOT ENDORSE AND IS NOT RESPONSIBLE OR LIABLE FOR ANY CONTENT, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE FROM SUCH WEBSITES OR RESOURCES. EDIST SHALL NOT BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH USE OF OR RELIANCE ON ANY SUCH CONTENT, PRODUCTS, OR SERVICES AVAILABLE ON OR THROUGH ANY SUCH WEBSITE OR RESOURCE.
14. Intellectual Property.
- eDist and/or its licensors own and shall retain all proprietary rights in and to the Website and all derivations and enhancements thereof, and all applications, software, documentation, content, and other materials that eDist may use or provide in connection with implementation and operation of the Website. The Website and all site design, including, but not limited to, software, processes, text, content, photographs, video, audio, interfaces, graphics, trademarks, logos, sounds, music, artwork, and computer code and the selection and the arrangement thereof (collectively, "Content"), including, but not limited to, the design, structure, selection, coordination, expression, "look and feel" and arrangement of such Content, contained on the Website and/or used in connection with the function of the Website and all articles of information, policies and other elements making up the Website are owned, controlled or licensed by or to eDist and are protected by patents, copyrights, trademarks, service marks, international treaties and/or other proprietary rights and Laws of Canada, the United States, and other countries.
- Buyer does not acquire any right, title, or interest in the Website, except for the limited right to use the Website strictly in accordance with the provisions of this Agreement. Buyer shall not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Website. Except as expressly provided in this Agreement, no part of the Website may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted or distributed in any way (including "mirroring") to any other computer, server, website or other medium for publication or distribution or for any commercial enterprise, without eDist's express prior written consent. eDist reserves all rights to eDist's intellectual property, including all intellectual property rights in the Website and materials on the Website.
- Buyer may view, download for caching purposes only, or print pages from the Website, solely for use by Buyer placing Orders with eDist and in providing support to Buyer's customers and for no other purpose, and subject to the restrictions below and elsewhere in this Agreement. Buyer shall not: (i) republish any material from the Website; (ii) sell, rent, or sub-license material from the Website; (iii) show any material from the Website in public; (iv) reproduce, duplicate, copy, or otherwise exploit material on the Website for a commercial purpose; (v) edit or otherwise modify any material on the Website, (vi) disseminate or redistribute material from the Website; or (vii) use any material from the Website in competition with eDist or for any other purpose except placing Orders with eDist and to provide support to Buyer's customers. As an accommodation to Buyer in the course of business, eDist may provide Buyer access to eDist's or eDist's licensor's copyrighted works, trademarks, inventions, and trade secrets, and like information, including information: (A) that has commercial value or other utility in the business of eDist; (B) that eDist identifies as confidential; or (C) that would be detrimental to eDist, its suppliers, or its customers, if disclosed. Examples of such information, whether it be from or not from the Website, include certain works of original authorship (including marketing and technical information), service marks, customer lists, supplier lists, price lists, costs, budgets, marketing research, unpublished business and financial information, forecasts and projections, contracts, contract terms, inventions, proprietary techniques, programs and methods, and other intellectual property, portions of which may be patented. Buyer's access to any and all of the foregoing is solely for use by Buyer in placing Orders with eDist and in providing support to Buyer's customers and for no other purpose. Upon default or breach by Buyer of this Agreement or any other agreement between Buyer and eDist, cessation of business transactions between eDist and Buyer, or eDist providing written notice of revocation of use for any reason and at any time, upon demand by eDist, Buyer shall immediately cease and desist use of any intellectual property provided by eDist for use by Buyer, including that property referenced above, and returning all documents and media of any and every nature containing or representing eDist's intellectual property. Buyer agrees to and shall comply with such demand. In no event shall Buyer use any of the aforementioned information in competition with eDist or for any other purpose except placing Orders with eDist and to provide support to Buyer's customers.
eDist shall not share End User information with third parties except as required by certain Supplier agreements as they relate to point of sale information.
16. PRIVACY LAWS.
Buyer acknowledges and agrees that End Users for certain Products and Services are healthcare providers who are 'covered entities' and are required by law to maintain the privacy and security of protected health information. Protected health information ("PHI") includes any individually identifiable health information held or transmitted by a covered entity in any form or media, whether electronic, paper or oral, that relates to the individual's past, present or future physical or mental health or condition, the provision of health care to the individual, or payments for the provision of health care to the individual. Individually identifiable health information includes, but is not limited to, common identifiers such as name, address, birthdate and social insurance numbers. Products and Services are capable of being used to dictate and transmit any speech data, including PHI. Although healthcare providers following best practices avoid the unnecessary transmission of PHI for security purposes, eDist maintains a compliant program designed to safeguard the privacy of any PHI it receives. Each Buyer agrees that it shall enter into a Business Associate Agreement ("BAA") with each End User as part of the End User license agreement or subscription agreement that governs Buyer's use of that PHI as needed in accordance with this Section 17. eDist and Buyer agree they expect it will not be necessary for an End User to disclose or for Buyer to receive or access any PHI in the course of Buyer performing its responsibilities under this Agreement or any related agreement or addendum. Buyer agrees it will not seek or accept access to or disclosure of any PHI from an End User or unless Buyer and the End User mutually agree this is necessary for the Buyer' or End User's proper management and administration, in which case Buyer will enter into its own BAA with the End User. Buyer understands that failure to comply with these provisions may result in liability to Buyer and others, for which Buyer shall be fully liable and responsible. Buyer will not represent itself to an End User as a subcontractor of eDist for any purpose, including for purposes of PHIPA, PIPEDA.
18. Buyer Agency.
- If Buyer is placing Orders for Products or Services on behalf of an End User, as opposed to an End User placing the Order directly, Buyer covenants, warrants and represents that it has received a signed, written authorization from the End User ("Authorization Agreement") which expressly authorizes Buyer, on behalf of End User, to: (i) place Orders in End User's name and to bind End User to all obligations associated with such Orders; (ii) to use and enter End User's Card information in connection with such Orders and to allow another Person to do so, recurring or otherwise, or arrange for recurring payments ("Card Payments") using End User's Card; (iii) to provide End User Card numbers and information to other Persons in connection with the placement of Orders via any means including, but not limited to, facsimile, email or other non PCI compliant manner; and (iv) to allow another Person to sign on behalf of and bind End User to all End User license agreements, subscription agreements, program guides, terms and conditions of sale and other rules and regulations of each Supplier and eDist, including but not limited to, this Agreement, any CHT Agreement, if applicable, and all other agreements, addenda and other documents (and the exhibits thereto) associated with and to be executed and delivered in connection with the foregoing. The Authorization Agreement executed by End User and delivered to Buyer shall protects Buyer, eDist and all Suppliers involved from any and all Claims by an End User or any other Person arising therefrom and which insures that Buyer's use of the End User's Card and/or confidential information and making of Card Payments on behalf of End User complies with all applicable laws, including written authorization and appropriate agency authority from the End User to place the Order, inputting of End User Card and other confidential information into the End User portal, and otherwise as necessary to comply with all Payment Card Industry Date Security Standards as then constituted ("PCI Compliant") and legally bind End User to the EULA.
- A sample agreement is available HERE (the "Sample Authorization Agreement"). The Sample Authorization Agreement does not constitute legal advice. Buyer is expressly advised to contact its own legal counsel and compliance experts to confirm the appropriate documents to be obtained from and executed by each End User, is protected and acting lawfully in connection with use of an End User's Card and confidential information for any purpose, including but not limited to the making of recurring Card Payments on End User's behalf. If Buyer places an Order for itself or on behalf of any End User, by placing the Order, Buyer promises and represents the it shall defend, indemnify and hold eDist and any CHT used to process Orders, transactions or payments for Buyer or End User harmless from and against any and all Claims arising out of, resulting from or related to, or alleged to arise out of, result from, or relate to, any breach of the representations set forth in Paragraph 16(a), failure to be PCI Compliant, or other violation of any applicable Law.
19. Export Laws.
Buyer agrees to comply with all applicable export Laws, assurances, codes and license requirements, and controls of the United Provinces and other applicable jurisdictions in connection with the use and resale of Products including, but not limited to, Buyer's acceptance of responsibility for the payment of any relevant Taxes or duties.
20. Anti-Money Laundering.
eDist is firmly committed to avoid involvement with money laundering, to comply fully with all applicable anti-money laundering and currency reporting and recordkeeping requirements and to taking affirmative steps to prevent, detect and report to appropriate authorities suspected violations. eDist will request information from its customers to sufficiently determine that distributor to be legitimate, trustworthy and creditworthy.
21. Bill & Hold Program.
eDist presently offers a "Bill and Hold" program designed for customers who want to take advantage of vendor promotions but want eDist to fulfill the Orders from eDist's facilities. Buyer understands and agrees that: (a) "Bill and Hold" Orders are non-cancelable purchase Orders at agreed terms, FOB Destination, and as to any Product are generally limited to a quantity that does not exceed Buyer's normal 60 day sales rate; (b) like any other Order, a "Bill & Hold" Order is subject to product availability and eDist shall have no liability for delays with respect to goods in transit; (c) all "Bill & Hold" Orders must be paid for in full at time of Order placement or accompanied by a deposit as determined by eDist in its sole discretion, and all deposits will be applied to the final payment for the Bill & Hold Order in respect of which made; (d) eDist retains title to all Products until payment in full by Buyer; (e) delivery must be taken by the Buyer of all Products which are purchased by a "Bill and Hold" Order within forty five (45) days of Order placement, unless otherwise agreed in writing by eDist; (f) Bill and Hold Orders are not cancellable by Buyer; (g) price reductions offered after placement and acceptance of a Bill & Hold Order shall not apply to that Order or constitute grounds for cancellation; (h) Bill and Hold Orders may be cancelled by eDist in its sole discretion in the event of non-payment in accordance with terms or non-compliance with this Agreement; and (i) a minimum restocking fee of fifteen percent (15%) may be charged by eDist with respect to cancelled Orders. In the event a Product is subject to a software version change, the procedures of the supplier may determine if the return policy described herein can be altered to accommodate software update exchanges. The foregoing does not reduce, limit or decrease Buyer's obligations or eDist's rights under any other provision of this Agreement.
20. Agreement to conduct Business Electronically.
- Buyer agrees that it is necessary to conduct business electronically and accepts all responsibility and liability for same, including but not limited to fraudulent orders and compromised passwords and or other actions that be caused due to errors on the Buyer action or inaction. Electronic orders and signatures will act as originals.
- E Disclosure and Consent
This E Disclosure and Consent is provided in compliance with the Electronic Signatures in Capitalized terms used in this E Disclosure and Consent have the meaning set forth in the Agreement or Terms and Conditions to which this E Disclosure and Consent is attached, except the words "You" and "Your" refer to the particular Person entering into or agreeing to the Agreement or Terms and Conditions. This disclosure relates to the Website including, without limitation, electronic fund transfers, the use of electronic signatures and the use and storage of "electronic records" as defined in the This policy describes how eDist delivers communications to You electronically. eDist may amend this policy at any time by posting a revised version on the Website. The revised version will be effective when posted by eDist. If the revised version includes a substantial change, eDist will provide You with thirty (30) days' prior notice by posting a notice of the change on the Website.
- Electronic Delivery of Communications
- Hardware and Software Requirements
In order to access and retain electronic Communications, You will need the following computer hardware and software: a computer with an Internet connection; current "web browser" that includes 128-bit encryption with cookies enabled; a current version of Adobe Acrobat Reader to open documents in pdf format; a valid email address (the primary email address designated by You in the New Account Form); and sufficient storage space to save past Communications or an installed printer to print them. eDist will notify You if there are any material changes to the hardware or software needed to receive electronic Communications from eDist. By giving Your consent, You are confirming that You have access to the necessary equipment and are able to receive, open, and print or download a copy of any Communications for Your records. You may print or save a copy of these Communications for Your records as they may not be accessible online at a later date.
- How to Withdraw Your Consent
You have the right to withdraw Your consent at any time. To withdraw consent, You may send a written request (a) by regular mail to eDist at 97 McKee Drive, Mahwah, New Jersey 07430, (b) by email to [email protected], or (c) through the Website or through our Privacy If consent is withdrawn, eDist.
Buyer shall defend, indemnify and hold harmless eDist, eDist's parents, subsidiaries and affiliates, all eDist Suppliers, CHT, and the respective shareholders, directors, officers, members, employees, agents and other representatives of eDist, eDist's parents, subsidiaries and affiliates and all eDist Suppliers (collectively, "eDist Indemnified Parties") from and against any and all Claims, arising out of, resulting from or related to, or alleged to arise out of, result from, or relate to: (a) disputes between Buyer and any Supplier of any Products purchased by Buyer from eDist; (b) Buyer's use of the Website; (c) any breach of or non-compliance by Buyer with this Agreement or Buyer's obligations under any other agreement with eDist; (d) Buyer's violation of any Law or rights of any Person; or (e) the actions or inactions of Buyer in connection with this Agreement and/or the Products and/or Services to be provided by eDist. This indemnification obligation shall survive termination, cancellation or completion of this Agreement.
- Marketing Communications. Buyer shall not use eDist's name, trademark or service mark, or the names, trademarks or service marks of any brands owned by eDist, or the existence of the contractual relationship between the Parties in any press release, marketing, promotional, advertising or any other materials without eDist's prior written consent, which may be granted or withheld in eDist's sole discretion.
- Buyer Representations and Warranties. Buyer represents and warrants that: (i) this Agreement constitutes the legal, valid, and binding obligation of Buyer, enforceable against Buyer in accordance with its terms; (ii) Buyer has the absolute and unrestricted right, power, authority, and capacity to execute and deliver this Agreement and to perform Buyer's obligations under this Agreement; (iii) Buyer has obtained any and all required consents necessary to enter into and perform this Agreement; (iv) Buyer's entry into to this Agreement and use of the Website does not violate any Laws or any agreement to which Buyer or its parents, subsidiaries or affiliates are subject or by which any of them are bound; and (v) Buyer shall comply with all applicable Laws in connection with Buyer's use of the Website.
- Modification; Amendment or Waiver. This Agreement may not be changed, amended, supplemented, or otherwise altered by Buyer except by a statement in writing signed by an eDist Authorized Representative. No Person is authorized to execute or make any agreements binding on eDist except an eDist Authorized Representative. eDist shall have the right, in its sole discretion, to change, modify, or amend any of terms and conditions contained in this Agreement at any time by posting notification on the Website or otherwise communicating the notification to Buyer. The changes will become effective thirty (30) days after such posting or delivery of such other communication, as applicable; provided, however, Buyer may terminate all pending Orders and this Agreement with eDist upon written notice to eDist delivered prior to the end of such thirty (30) day period.
- Entire Agreement. The New Account Form, this Agreement and any Support Orders contains the entire understanding and agreement between the Parties with respect to its subject matter, superseding all prior or contemporaneous representations, understandings, and any other oral or written agreements between the Parties with respect to such subject matter.
- Notices. Except as otherwise provided in this Agreement, any notice, request, demand or any communication to be given to either Party hereunder, except those required to be delivered at Closing, shall be in writing and shall be hand delivered, sent by overnight courier or by registered or certified mail, return receipt requested, or via confirmed facsimile or confirmed e-mail, or by other electronic means capable of verification, addressed to such Party at their addresses set forth (i) for eDist, on the Website and (ii) for Buyer, on the New Account Form. Any Party may change its address for such communications by giving an appropriate notice to the other Party as provided in this Paragraph 21(e). Notices shall be deemed effective on the date of receipt or rejection.
- Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties, their successors and permitted assigns. eDist is permitted to assign this Agreement and its rights and obligations hereunder. Neither this Agreement nor any right, license, privilege or obligation provided herein may be assigned or transferred by Buyer without eDist's prior written consent; any such attempted assignment or transfer without such consent shall be void.
- Governing Law; Consent to Jurisdiction. This Agreement shall be governed by and construed in accordance with Ontario law. The parties submit to the exclusive jurisdiction and venue of Ontario courts in connection with any dispute, claim or other matter arising out of or relating to this Agreement or the Services. Notice provisions herein shall be effective service of process for any action, suit or proceeding brought against such Party in any such court. Each Party irrevocably and unconditionally waives to the fullest extent permitted by applicable Laws any and all rights to trial by jury.
- Headings. The Section and Paragraph headings in this Agreement are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provision hereof.
- Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid, but if any provision of this Agreement is held to be invalid or unenforceable in any respect, such invalidity or unenforceability shall not render invalid or unenforceable any other provision of this Agreement.
- No Third-Party Beneficiaries. Except as otherwise specifically set forth herein, nothing in this Agreement will be construed as giving any Person, other than the Parties and their successors and permitted assigns, any right, remedy or claim under, or in respect of, this Agreement or any provision hereof.
- Interpretation. Except as otherwise provided or if the context otherwise requires, whenever used in this Agreement, (a) any noun or pronoun shall be deemed to include the plural and the singular, (b) the terms "include" and "including" shall be deemed to be followed by the phrase "without limitation," (c) the word "or" shall be inclusive and not exclusive, (d) unless the context otherwise requires, all references to Sections and Paragraphs refer to Sections and Paragraphs of this Agreement, all references to particular Exhibits, Schedules or links refer to the Exhibits, Schedules and links attached to or imbedded in this Agreement, (e) the words "herein," "hereof" and "hereunder" and other words of similar import refer to this Agreement this Agreement as a whole and not to any particular Section, Paragraph or other subdivision, (f) any definition of or reference to any law, agreement, instrument or other document herein will be construed as referring to such law, agreement, instrument or other document as from time to time amended, supplemented or otherwise modified, and (g) any definition of or reference to any statute will be construed as referring also to any rules and regulations promulgated thereunder.
- Language. The parties hereto confirm that it is their wish that this Agreement as well as other documents relating hereto, including notices, have been and shall be drawn up in the English language only. Les parties aux présentes confirment leur volonté que cette convention de même que tous let documents, y compris tous avis, s'y rattachant, soient rédigés en langue anglaise seulement.
- No Waiver. The waiver by either Party of any right under this Agreement or the failure to perform or of a breach of any provision of this Agreement will not operate or be construed as a waiver of any other right hereunder or of any other breach or failure, whether of a similar nature or otherwise.
- Clerical Errors. Typographical and clerical errors and omissions in eDist invoices are subject to correction.
- Survival. All provisions of this Agreement (i) necessary to achieve the fundamental purposes of this Agreement, (ii) relating to privacy and data gathering and use, (iii) authorizing and/or requiring payment to eDist and/or the recovery of returns, reversals, refunds, chargebacks or other adjustments of payments and (iv) containing indemnifications, disclaimers, liability limitations and other limitations and provisions affording protection to eDist and eDist Indemnified Parties, shall survive the for the expiration or sooner termination of this Agreement without limitation.
By entering into this Agreement, Buyer is agreeing to conduct transactions by electronic means.