Buyer Terms Of Services

BUYER TERMS OF SERVICES

THIS IS A DRAFT DOCUMENT WHICH HAS NOT BE CORRECTED OR REVIEWED BY OUR PARALEGALS. IT MAY CONTAINS TYPOS.

[NTD: Please review these Buyer Terms of Services with our comments. One area to confirm is whether or not there is enough distinctions between the Manufacturer and the Buyer, or whether it is simply better to cover them together in the same agreement, by distinguishing between the Buyer and the Manufacturer, so it becomes a three way agreement as with the Buyer Requirements and the Additional Terms, it can easily be overridden. The main reason for keeping the agreement separated is that you can negotiate some “leeway” between the terms granted to the Buyer and the terms that are applicable with the Manufacturer for payment purposes. Since this includes the platform terms, this is longer than the Buyer TOS that you shared with us, but you will not have different agreements and you will not be integrating a copy for each RFQ, you will only have a link to an agreement that they already know and can expect prior for the Purchase Order. We’ve made many suggestions in the FAQs on how you can create awareness about the standard terms, and you should certainly explore these options in further details within the platform, and integrate many of the “outputs/inputs” of a contract within your end-to-end procurement process.]

LATEST UPDATE:

These Buyer Terms of Services (including any Order Forms and Change Orders, the “Buyer Terms”) are between the corporation which registers as a buyer through the Axya Platform, and which is identified in Order Form from time to time (the “Buyer”) and  Axya

Please read these Terms attentively prior for creating a manufacturer account on the Axya Platform. These Terms apply to your use of the Services as a Buyer. If you are entering in these Terms on behalf of the Manufacturer, you represent and warrant that you are authorized to bind the Manufacturer through these Terms.

  1. DEFINITIONS

  • Additional Terms” is defined under Section 7 of these Buyer Terms. 

  • Applicable Laws” means any statute, regulation, rule, code, ordinance, constitution, treaty, common law, judgement, decree or other requirement of any federal, municipal, provincial, territorial or foreign government or one of its political subdivisions or of any arbitrator, court or tribunal of competent jurisdiction, which are applicable to these Terms, including the use of the Axya Platform by the Customer and the purchase of the Parts and Materials by the Buyer through the Axya Platform.

  • Axya Platform” means the platform operated by Axya to connect Manufacturers with the Buyer as part of Transactions, the whole as described in the documentation from time to time.

  • Axya Quote” means a quote issued by Axya to the Buyer for the purchase of the Parts and Materials from the Manufacturer by Axya, for the performance of the Payment Management Services. The Axya Quote is based on the Quote accepted by the Buyer, and includes the Transaction Fees. [NTD: How does the Buyer accept the Axya Quote?]

  • BETA Services” means any version of the Services, including any functionality, that is made available to the Customer to try at its option and which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.

  • Buyer Requirements” means the requirements for an RFQ which are indicated by the Buyer in the RFQ, and which can override the remaining parts of the Terms. The Buyer Requirements may include different payment terms from those contained herein, or different requirements for the Parts and Materials Warranty (as defined below).

  • Confidential Information” means any information of a party or another Member (the “Disclosing Party”) that is or will be divulged to another party or another Member (the “Receiving Party”) concerning the business, property, operations or finances of the Disclosing Party or its business, including exclusive information and trade secrets. Confidential information shall be indicated as such, or it shall be clear at the time of disclosure that the information is to be treated as confidential information depending on its nature or the context of the disclosure. 

  • Export Control Laws” means any Canadian laws, regulations or orders governing transactions in controlled goods or technologies or dealings with countries, entities, organizations, or individuals subject to economic sanctions and similar measures, including the Special Economic Measures Act (Canada), the United Nations Act (Canada), the Freezing Assets of Corrupt Foreign Officials Act (Canada), Part II.1 of the Criminal Code (Canada) and the Export and Import Permits Act (Canada), and any related regulations.

  • Fees” means the Parts and Materials Charges, the Transaction Fees, and any taxes or other financial considerations which are due to the Manufacturer or to Axya in accordance with these Terms.

  • “Intellectual Property” means any intellectual property, including, without limitation, the works, inventions (patentable or non-patentable), discoveries, improvements, trade secrets, know-how, scientific formulae, data, information, images, reports, results, analyses, software, models, research and development information, technical information, prototypes, specifications, models, designs, algorithms, products, compositions, processes and protocols, methods, tests, devices, computer programs, trade-marks and all proprietary rights provided by the law on patents, copyright, trademarks law, the laws of industrial design, the law of semiconductor chips, or any other legal provision or principle of civil law or common law applicable to the protection of information or incorporeal rights, including trade secrets, which can confer a right over any of the foregoing, as well as all applications, registrations or other proof of rights in any of the aforementioned elements.

  • Manufacturer Terms” means the Manufacturer Terms which each Manufacturer agrees upon when submitting a Quote in response to an RFP, and which are available at: [Insert URL for the Manufacturer Terms in the final version].

  • Parts and Materials” means the goods and products procured by the Buyer as part of a Transaction through the Axya Platform.

  • Parts and Materials Charges” means any costs, fees, expenses, delivery fees, shipping fees, duties and charges due for the Parts and Materials by the Buyer.

  • Payment Management Services” means the payment management services which are provided to a Buyer after it selects a Manufacturer through the marketplace within the Axya Platform.  [NTD: Do you have a more extensive definition or a more complete definition for the Payment Management Services? Alternatively, an URL to an online page is a good idea.]

  • Purchase Order” means the Purchase Order issued by the Buyer to the Manufacturer, or by Axya on behalf of the Buyer, and which includes the Parts and Materials Charges, and any Buyer Requirements and Additional Terms, and which is issued in accordance with the agreement with the Manufacturer, including the Manufacturer’s Quote.

  • Quote” means a legally binding quote submitted by a Manufacturer in response to an RFQ submitted by the Buyer, through the marketplace on the Axya Platform. [NTD: Does Axya ever submit RFQs on behalf of the Buyer?]

  • Services” means the Payment Management Services, the Axya Platform and the Technical Support Services, indiscriminately.

  • Terms” means these Buyer Terms, the Manufacturer Terms, the Buyer Requirements and the Additional Terms, as applicable.

  • Transaction” means the purchase of the Parts and Materials by the Buyer upon acceptance of a Quote submitted by the Manufacturer through the Axya Platform in response to an RFQ, regardless of whether or not the Buyer subscribed to the Payment Management Services for a Transaction.

  • Transaction Agreement” means the Buyer Requirements, the Additional Terms and the Purchase Order along with any Terms applicable to the Transaction as between the Manufacturer and the Buyer.

  • Transaction Fees” means the flat percentage which Axya invoices the Buyer in accordance with the Payment Management Services for each Transaction.

  1. SUBJECT MATTER

These Buyer Terms govern your access to, use of, and transactions made through the Axya Platform. The Axya Platform enables registered suppliers, vendors, distributors and manufacturers (the “Manufacturers”) to sell the Parts and Materials to the Buyer for business, professional, manufacturing and industrial purposes, and to access and use a set of features, services, software, and applications intended for the same purposes. When subscribed to the Payment Management Services, Axya also handles the issuance of the Purchase Order, the collection of the Parts and Materials Charges, and the disbursement of the Parts and Materials Charges to the Manufacturer, in exchange for a Transaction Fee.

  1. PROVISIONING OF THE SERVICES

The Buyer must create an account to use the Services, and provide information about its business and operations prior to being validated as a Member, allowing the Buyer to access the marketplace within the Axya Platform and create RFQ. The Buyer is then responsible for providing accesses to its End Users, and for removing such accesses when appropriate, such as when an End User reports to the Buyer that an account has been compromised. You also agree to contact us immediately in case your account is compromised. The Buyer is liable for all actions performed by its End Users on the Axya Platform, such as for any Parts and Materials which are ordered by an End User. 

By creating a business account with us, you represent that (a) the individual acting on behalf of the Buyer has the authority to bind the Buyer; (b) the Buyer has all reisite right, power and authority to enter into, perform its obligations under, and grant the rights and authorizations under the Terms and (c) the Buyer is an Eligible Entity. “Eligibility Entities” means entities registered as corporations only. Individual consumers, governmental entities, non-for-profits and other types of organizations are not Eligible Entities, unless agreed upon in writing by Axya, in which case, the Buyer is responsible for informing Manufacturers of their legal status as part of the Buyer Requirements.

  1. ACCEPTABLE USE OF THE AXYA PLATFORM

You hereby represent and warrant that, except with our express written authorization, neither you, nor your End Users, will use the Services in any manner:

  • that is prohibited by the Applicable Laws or by our policies reasonably made available to you from time to time, including these Terms.

  • that would interfere with the use or the enjoyment of our Services by other Members, including if such use results in constant and repeated automated requests for data other than that which is authorized by these Buyer Terms, and has an adverse effect on our systems or our network, including any abnormal use that overloads the servers or causes parts of our network to be blocked (for example, denial of service attacks or distributed denials of service attacks).

  • that uses the Services to create, transmit, distribute or store content which violates Intellectual Property, private life, publicity or any other personal rights of individuals, Export Control Laws, or that may otherwise be threatening, abusive, hateful, or that constitutes or encourages conduct which would be considered fraud, a criminal offense, or which is susceptible to give the right to civil liability.

  • that results in (A) the sharing of credentials, identifiers and passwords between End Users or between End Users and third parties and (B) the distribution, disclosure or unauthorized use or access of the Axya Platform in any form to or by unauthorized third parties (i.e. other than End Users), including through any timesharing service, service bureau, network or by any other means.

  • that implies the use of any robot, spider, scraper, deep-link, or any similar automated tool for collecting and extracting data, programs, algorithms or methodology to access, acquire, copy or monitor services or any part of the Services.

  • that involves the decompiling, dissembling or any other form of reverse engineering or attempting to reconstruct or discover of source code or ideas or algorithms, of one of the underlying services of the technology by any possible method.

  • that involves penetrating our security, such as by posting or transmitting any file that contains viruses, worms, Trojan horses, or any other contaminating or destructive characteristic, by interfering with the proper functioning of the services, by manipulating credentials to disguise the origin of any content that was transmitted or uploaded to the services, or the source of any content.

(collectively, the “Abuses”).

  1. CONFIDENTIAL INFORMATION

Confidential information does not include information which the Receiving Party can prove: (i) is readily available to the public in the same form through no fault of the Disclosing Party; (ii) does not originate from the Disclosing Party and was lawfully obtained by the Receiving Party in the same form from an independent third party without any restriction on disclosure, or (iii) does not originate from the Disclosing Party and was in the possession of the Receiving Party in the same form prior to its disclosure to the Receiving Party by the Disclosing Party.

The Receiving Party acknowledges and agrees that Confidential Information is exclusive information of the Disclosing Party and may constitute Intellectual property of the Disclosing Party, whether or not part of the information is protected by valid copyrights or patents. The Receiving Party shall only use the Confidential Information of the Disclosing Party for the purposes stated in this Terms and protects this Confidential Information with at least the same level of care and confidentiality as the Receiving Party uses for its own Confidential Information.

The Receiving Party shall take all reasonable measures needed to ensure that the Confidential Information of the Disclosing Party is not made available or divulged to a third party by it or any of its representatives, except (i) if the Applicable Laws require it including a valid court order, (ii) with the prior written consent of the Disclosing Party; (iii) as permitted or reasonably inferred from these Terms; or (iv) if the disclosure is made to a legal counsel, an auditor or as reasonably required for the administration of a legal entity. The Receiving Party shall exercise reasonable diligence to ensure that its Representatives are subject to the same obligations as itself.

The Receiving Party shall not make copies or reproduce the Disclosing Party’s Confidential Information (on any medium whatsoever), except as may be necessary for the purposes of these Terms (including backups and business continuity).

In the event of the termination of these Terms for any reason whatsoever, the Receiving Party shall promptly either return all Confidential Information in its possession to the Disclosing Party or destroy this Confidential Information, at the discretion of the Disclosing Party. Notwithstanding the foregoing, the Receiving Party is authorized to retain copies that are required to comply with the Applicable Laws, for its business records or for the continuation of its activities, in which case, the Receiving Party must maintain the confidentiality and the Integrity of the Confidential Information for as long as it is under the Receiving Party’s guard, and securely delete it as soon as reasonably possible..

  1. INTELLECTUAL PROPERTY

As between the parties, each party remains at all times the exclusive owner of all rights, titles and interests in its Intellectual Property, including its Confidential Information. You agree that the foregoing statement applies to the Intellectual Property and Confidential Information of other Members that you may process or otherwise access in relation to your use of the Axya Platform, or otherwise in connection with these Terms.

Notwithstanding any statement to the contrary, we remain the exclusive owner of the suggestions, requests for improvement, recommendations or other commentaries you provide to us regarding our Services as long as they relate to such Services (the “Feedback”). You waive any moral rights in the foregoing, and you hereby assign to us, without limitation of any kind, all your rights, titles and interests in these elements, under these Terms, Axya accepting this assignment. 

At our reasonable requests, you will complete and execute all necessary documents and take such other actions as we or other Members may reasonably require to assist us in acquiring, developing and maintaining Intellectual Property and Confidential Information in accordance with these Terms. 

  1. REQUESTS FOR QUOTES 

The Buyer generates RFQs and identifies the Buyer Requirements which may include technical specifications, additional requirements and deviations from the Buyer Terms. The Buyer Requirements prevail over the remaining parts of the Terms in case of a conflict, to the extent that they are agreed upon by the Manufacturer through the issuance of a Quote.

THE BUYER AGREES AND UNDERSTANDS THAT THE BUYER TERMS APPLY BY DEFAULT TO ANY TRANSACTION, UNLESS SUPPLEMENTED BY THE BUYER REQUIREMENTS ACCEPTED BY THE MANUFACTURER THROUGH A QUOTE.

Each Quote is valid for the duration of time indicated in each Quote by the Manufacturer, or if none is indicated, the Quote is valid during 30 days from the date of quotation. The Manufacturer keeps its rights to change the Parts and Materials Charges and any delivery times until the Buyer agrees to the Quote, but only to the extent that external circumstances justify such changes, in which case, the Manufacturer must modify the Quote and notify the Buyer. Once the Buyer has accepted a Quote, subsequent modifications may only be done in accordance with the Change Control Procedure set forth below.

The Buyer agrees that the Quote, including any related pictures, designs, calculations and other documents and related rights are the property of the Manufacturer, and that the Quote constitutes Confidential Information of the Manufacturer.

Unless indicated otherwise, the Parts and Materials Charges set forth in a Quote exclude any applicable taxes and duty, and the Parts and Materials Charges are based on exchange rates on the Quote date, unless otherwise mentioned.

The Buyer and the Manufacturer may also negotiate additional terms and conditions from those in the Buyer Requirements, such as if the Manufacturer as indicated in a Quote any deviations from the Buyer Requirements or the Buyer Terms which are applicable to the Quote (the “Additional Terms”). The Additional Terms prevail over the Buyer Requirements Axya is not involved in the negotiation of any Additional Terms. The Additional Terms are at the discretion of the Manufacturer and the Buyer. 

For the avoidance of doubts, Axya is not part of the Transaction Agreement which is between the Buyer and the Manufacturer, except as set forth under the Payment Management Services. The Buyer is a third party beneficiary to the Manufacturer Terms, and is responsible for enforcing the Manufacturer Terms against the Manufacturers in case of a breach of the Buyer Terms, unless agreed otherwise by Axya. Axya flows downs directly to the Buyer the Parts and Materials Warranty, and the Buyer may exercise its rights directly with the Manufacturer. [NTD: These aspects have to be discussed: this is the best scenario to reduce your liability so that you don’t have to litigate on their behalf.]

  1. VENDOR SELECTION

Axya will deploy commercially reasonable efforts to conduct pre-screening of the Manufacturers prior for providing the Manufacturers with access to the marketplace within the Axya Platform. Notwithstanding the foregoing, the Services do not include any Vendor Due Diligence, nor do they include any vendor selection services. The Buyer is solely responsible for issuing RFQs to Manufacturers through the Axya Platform, and for selecting Manufacturers following the issuance of the RFQs, including validating compliance with Applicable Laws and the Buyer Requirements. [NTD: Axya to confirm.]

  1. PROCUREMENT OF PARTS AND MATERIALS

A contract is created between the Buyer and the Manufacturer upon the issuance of a Purchase Order corresponding to the RFQ, including any Buyer Requirements and Additional Terms, unless such Purchase Order is issued after a Quote ceases to be binding and valid, in which case, the Manufacturer may refuse the Purchase Order in writing within 5 business days of receiving such Quote. If the Purchase Order does not correspond to the Quote, and any Additional Terms (documented in writing by the Parties), the Purchase Order is not valid until accepted by the Manufacturer. [NTD: There are rules as to when and how contracts are created which the platform will need to be able to mimic for legal purposes. Among other things, once a Quote is issued that corresponds to a RFQ, and this Quote is accepted, then a contract is created. However, if there are modifications through negotiations, there has to be a way to document these in the RFQ and have them validated by both Parties through a workflow so that Axya can actually generate an accurate Purchase Order, otherwise, it isn’t really a contract.]

The Buyer is solely responsible for generating a Purchase Order which accurately reflects the Quote along with any Additional Terms, including by verifying that the Parts and Materials are adequately identified. Axya is not responsible for verifying whether the Purchase Order generated by Axya, including for its adequacy against the RFQ. Axya does not provide any legal advice on the content of Purchase Order, including Additional Terms.

If the Buyer is subscribed to the Payment Management Services, the Purchase Order is generated by Axya through the Axya Platform, on behalf of the Buyer.

  1. BUYER PAYMENT TERMS

Parts and Materials Charges. If the Buyer agrees to purchase Parts and Materials through the Axya Platform, the purchase of these Parts and Materials will be, in important of priority: (1) any Additional Terms negotiated between the Parties and included in the Purchase Order; (2) the payment terms indicated in the Buyer Requirements; (3) the payment terms set forth in herein, regardless of whether such Parts and Materials are purchased from the Manufacturer directly, or by Axya on behalf of the Buyer as part of the Payment Management Services, [NTD: See comments, i.e. is it an invoice from Axya, or an invoice from the Buyer, and Axya is assigned the rights to enforce and collect payments on behalf of the Buyer?] unless the Manufacturer and the Buyer agree otherwise through the Buyer Requirements’ acceptance or any Additional Terms included in a Purchase Order. The Parts and Materials Charges shall be in the Purchase Order, along with any Additional Terms regarding the payment of such Charges. Payment for all purchases of Parts and Materials is due upon shipment on the date indicated in the Purchase Order. All Transaction Fees are due with the first payment of the Parts and Materials Charges. The Transaction Fees are paid to Axya, and are not paid to the Manufacturer.

Payment Terms. The Buyer agrees to pay for the Fees in accordance with the Purchase Order, and unless stated otherwise, within 30 days of the invoice date for such Fees, which shall be issued by the Manufacturer upon reception of the Purchase Order. Unless indicated otherwise, all Fees will be paid in Canadian Dollars by wire transfer at the banking account identified in an invoice or a Purchase Order. [NTD: Please validate the default currency: a suggestion would be to have a specific place to override this.]

Late Payment. If the Buyer is late in the payment of the Fees, the Buyer agrees to pay for interests corresponding to 1.5% monthly, or 18% annually, on any such late Fees, unless such late Fees are disputed in accordance with the Dispute Resolution Procedure set forth below. If the Buyer has not paid for such Fees, within 60 days from the invoice date, and unless different terms have been agreed upon, the Buyer will be responsible for any collection costs, expenses and fees, including reasonable attorneys’ fees.

Right to set-off, compensation. If the amount payable to the Manufacturer and received by Axya hereunder is insufficient to pay the outstanding Parts and Materials Charges on any day and/or any other amount due or payable by the Buyer pursuant to the Terms, the Manufacturer or Axya will be entitled to: (a) set off and deduct the outstanding amount in whole or in part from any payment due from the Buyer to the Manufacturer or Axya, respectively; and/or (b) debit the outstanding amount in whole or in part from the Buyers banking account for which the banking information has been communicated to the Manufacturer or Axya, respectively; and/or (c) deduct the outstanding amount in whole or in part from subsequent credits to the Buyer; and/or (d) claim from the Buyer the outstanding amount in whole or in part in accordance with the Terms.

Payment Diligence. Regardless of any independent verifications by Axya, and to the maximum extent permitted by Applicable Laws, the Buyer is solely responsible for making appropriate verifications to ensure that the payment to the Manufacturer is not in violation of Applicable Laws regarding anti-money laundering or otherwise constitutes a payment that is prohibited by Applicable Laws (the “AML Requirements”), and for verifying that the Transaction, including any related payments or sharing of technical information, complies with the Export Laws (as set forth below).

Taxes. If we are required to collect any taxes from you in accordance with Applicable Laws, or the administration thereof, you agree to pay these taxes in addition to the payment of the Fees (and any consideration payable under these Terms). If the Buyer benefits from an exemption from these applicable taxes, the Buyer must, instead of paying these applicable taxes to Axya, deliver the certificates, elections or other documents required by Applicable Laws to justify and effect the exemption requested by you to Axya. The Buyer will hold harmless, defend and indemnify Axya and its Representatives from any taxation claims made to Axya resulting from such exemptions.

Tax Deduction. The payor of the Fees (regardless of whether the payor is Axya, or the Buyer) shall make all payments under these Terms without any deduction or withholding for or on account of any tax (Tax Deduction), unless a tax deduction is required by the Applicable Laws. If a Tax Deduction is required by the Applicable Laws, then (i) if such Tax Deduction relates to a tax other than an income tax imposed on the payor’s net income, the corresponding amount payable by the payor will be increased to the amount that, after any Tax Deduction required, would allow the payor to receive the amount that would have been received if no Tax Deduction were required; (ii) the payee must, as soon as it learns that it has to make a tax deduction (or that there is a change in the rate or basis of a tax deduction), inform the payor and (iii) the payee must remit the amount of the tax deduction to the competent tax authorities in due time. The payor and payee will use commercially reasonable efforts to mitigate, reduce or eliminate any tax deduction (including, but not limited to, taking advantage of any reduced tax rate provided for under any Applicable Laws for the avoidance of double taxation then in force).

Payment Management Services. If the Buyer is subscribed to the Payment Management Services, the Buyer will pay all Fees directly to Axya, in accordance with these Terms, and Axya will pay the Manufacturer for the Parts and Materials Charges in accordance with the Terms, including any Purchase Order agreed upon with the Manufacturer.

  1. PAYMENT MANAGEMENT SERVICES

NOTWITHSTANDING ANYTHING TO THE CONTRARY, IF THE BUYER IS SUBSCRIBED TO THE PROCUREMENT MANAGEMENT SERVICES, THE BUYER HEREBY AUTHORIZES AND MANDATES AXYA TO PROCURE THE PARTS AND MATERIALS ON ITS BEHALF, IN ACCORDANCE WITH A PURCHASE ORDER ISSUED BY AXYA ON BEHALF OF THE BUYER, AND THE BUYER HEREBY ASSIGNS TO AXYA ITS RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT REGARDING THE PROCUREMENT OF THE PARTS AND MATERIALS, INCLUDING THE COLLECTION AND PAYMENT OF THE PARTS AND MATERIALS.

The Buyer agrees and understands that the Payment Management Services may not be available for each Transaction, and Axya may refuse to provide Payment Management Services on any Transaction, at its sole discretion. Without limiting the generality of the foregoing, you agree and understand that the Payment Management Services are currently available within Canada only.  

Notwithstanding anything to the contrary, if the Buyer is subscribed to the Payment Management Services, Axya will issue the Purchase Order on behalf of the Buyer through the Axya Platform [NTD: Are you sure that you are issuing this in your name, and not in the name of the Buyer, but managing on their behalf the collection?], and the Buyer is responsible for communicating the Additional Terms to Axya to ensure that the Purchase Order issued by Axya, on behalf of the Buyer, includes such Additional Terms. [NTD: See above comments.] The Buyer must review the Purchase Order to ensure that (a) is an accurate reflection of the Parts and Materials that have been requested, and any other information required in the Purchase Order and (b) that the Purchase Order reflects the Additional Terms agreed upon with the Manufacturer. For each Transaction subject to the Payment Management Services, Axya will collect the Parts and Materials Charges identified in the Purchase Order from the Buyer and remit such Parts and Materials Charges to the Buyer in accordance with the Purchase Order, including any payment terms agreed upon by the Buyer and the Manufacturer through the Buyer Requirements or the Additional Terms. Except as set forth in the Buyer Terms, neither party may bind the other party to additional terms and conditions, warranties, representations or obligations without the prior written consent of the other party, and neither the Buyer Requirements nor the Additional Terms may bind Axya nor its Representatives. For the avoidance of doubts, Axya is not obligated to comply with the Buyer Requirements and Additional Terms except as required to perform the Payment Management Services. Axya may refuse to perform the Payment Management Services at its sole reasonable discretion, such as if the payment terms requested by the Buyer are unreasonable, or if the Transaction is not eligible, as determined from time to time.

NEITHER AXYA NOR THE AXYA REPRESENTATIVES (AS DEFINED BELOW) WILL BE LIABLE IF IT IS UNABLE TO CARRY OUT ITS DUTIES AND OBLIGATIONS WITH REGARDS TO THE PAYMENT MANAGEMENT SERVICES DUE TO ANY BREACH BY ANY PERSON, SUCH AS THE MANUFACTURER OR THE BUYER, OF ITS OBLIGATIONS UNDER THESE TERMS OR ANY FAILURE OF RECEIPT OF ANY NECESSARY INSTRUCTIONS, NOTICES, DOCUMENTS OR INFORMATION FROM ANY PARTY OR ANY SITUATION NOT WITHIN ITS CONTROL. AXYA AND ITS REPRESENTATIVES’ ONLY LIABILITY FOR THE PAYMENT MANAGEMENT SERVICES WILL BE LIMITED TO AXYA’S FRAUD, NEGLIGENCE OR WILFUL MISCONDUCT, UNLESS SET FORTH OTHERWISE IN APPLICABLE LAWS.

[NTD: If there is no payment or the payment is delayed, this contract allows you, or the Manufacturer, to enforce the collection against the Buyer. However, it’s unclear to me in this context why would the Buyer pay for the Payment Management Services, as opposed to a Manufacturer who may be more interested in having you collect the fees from the Buyer?]

  1. DELIVERY; SHIPPING

[NTD: There are 13 different terms recognized in Incoterms for shipping and delivery. One option could be for the Buyer to indicate its preferred delivery terms and for the Manufacturer to confirm, or to respond with its standard delivery terms, and then the parties can negotiate if they want to. This could be automated in the platform in a delivery section. See this article for more information on the Incoterms.]

Unless agreed otherwise in a Purchase Order (such as through the Buyer Requirements or Additional Terms), any delivery and shipping within Canada are subject to DDP Incoterms 2010. This means that the Manufacturer fulfills the obligation to deliver when it has made the Parts and Materials have been made available at the named place in the Purchase Order. The Manufacturer has to bear the risks and costs, including duties, taxes and other charges of delivering the Parts and Materials to the Buyer, clear for importation when applicable. The Parts and Materials Charges must include all duties, taxes and other charges.

The Manufacturer is responsible for delivering the Parts and Materials based on the Purchase Order, including any agreed-upon times for delivery as documented in the Purchase Order (the “Delivery Schedule”). Unless agreed otherwise in a Purchase Order (such as through the Buyer Requirements or Additional Terms), if the Manufacturer cannot deliver the Parts and Materials within the Delivery Schedule, the Manufacturer is responsible for providing the Buyer with a notice without undue delays. If the Delivery Schedule is delayed of more than 15 days and such delay, which isn’t caused by a Force Majeure (as defined below), would cause substantial costs or harm to the Buyer, the Manufacturer will, at the Buyer’s reasonable discretion: (a) cancel the Purchase Order and reimburse the Buyer for the Parts and Materials Charges, and in which case, the Manufacturer will return the Parts and Materials to the Buyer upon reception, if received after reimbursement or (b) the Manufacturer will offer a discount to the Buyer corresponding to 2% of the Parts and Materials Charges for each day that the Parts and Materials is being the Delivery Schedule after this 15 days. The Manufacturer will not be obliged to pay any penalties or liquidated damages due to this delay except as set forth herein. [NTD: This is intended to be a failover so that there are some standards in the Axya Platform, and then the Buyers can decide to deviate from this through either the Buyer Requirements, or subsequently upon negotiation with the Manufacturer in the Additional Terms agreed upon. If they don’t, then the terms apply by default.]

Unless otherwise agreed in a Purchase Order, the Delivery Schedule begins at the latest of (a) 5 days after the Purchase Order is issued; (b) the date at which all licenses and governments authorization, including under Export Laws (as defined below), are obtained; (c) on the date at which the payment of the Parts and Materials is received by the Manufacturer, if indicated as a condition in the Purchase Order; (d) on the date at which the Manufacturer receives the requested technical information required to ship the Parts and Materials or (e) on the date at which the Parts and Materials are produced and ready for shipment if the Manufacturer and Buyer agreed to a delay for the production of the Parts and Materials.

 

The liability of risk is passed to the Buyer when the Parts and Materials are delivered to the Buyer or a transport company in accordance with a Purchase Order. If the delivery cannot be completed due to the Buyer’s fault, such as if the Buyer is not available to receive the delivery at the time agreed upon, the liability of risk will be passed to the Buyer when the Manufacturer has fulfilled its part of the delivery.

  1. PARTS AND MATERIALS 

The Buyer agrees and understands that the Parts and Materials may be designed for, and only appropriate for, specialized uses; accordingly, the Buyer may only use them as intended by, and in compliance with all instructions provided by, the Manufacturer.

Unless the Buyer and the Manufacturer negotiate otherwise in the Buyer Requirements or Additional Terms, and to the maximum extent permitted by Applicable Laws, during a period of 12 months from the date at which the Parts and Materials are delivered (the “Warranty Period”), the Manufacturer warrants to the Buyer that the Parts and Materials will comply with the specifications agreed upon in the Purchase Order, represented in a Quote, or otherwise set forth in the technical documentation provided by the Manufacturer (the “Parts and Materials Warranty”). The Buyer is responsible for obtaining any additional Parts and Materials Warranty through the Buyer Requirements, or as part of Additional Terms.

The Parts and Materials Warranty is provided directly by the Manufacturer to the Buyer, and Axya is not liable or otherwise responsible for exercising any claims regarding the Parts and Materials Warranty (each a “Warranty Claim”). Notwithstanding the foregoing, Axya may, in its sole discretion, enforce any such Warranty Claim against the Manufacturer on behalf of the Buyer, including or not as part of the Payment Procurement Services. [NTD: This is an area of distinction with the Manufacturer Terms, where Axya can enforce all the warranties, and also receives a direct warranty in addition to the one which the Manufacturer] 

Upon receiving the Parts and Materials, the Buyer is responsible for validating that the Parts and Materials are in accordance with: (a) the Parts and Materials Warranty; (b) the RFQ, including with regards to the quality of the Parts and Materials; (c) the specifications, needs and agreement with the Manufacturer and (d) any Additional Terms.

In case of a breach of the Parts and Materials Warranty by the Manufacturer, and unless indicated otherwise in a Purchase Order, the Manufacturer will, at the Buyer’s reasonable discretion and at no additional charges to the Buyer, (a) repair the Parts and Materials so that it complies with the Parts and Materials Warranty; (b) provide the Buyer will substantially similar Parts and Materials Warranty; (c) reimburse the Buyer for the Parts and Materials or (d) provide a discount to the Buyer for the Parts and Materials, which shall be reasonable and proportional to the non-compliance. Any return of the Parts and Materials for a breach of the Parts and Materials Warranty by the Manufacturer.

Unless indicated in a Purchase Order and as set forth herein, the sale is final, non-reimbursable and non-cancellable. Notwithstanding the foregoing, the Manufacturer may accept returns of the Parts and Materials in accordance with the Manufacturer’s terms and conditions as part of any Additional Terms.



  1. CHANGE MANAGEMENT

If the Buyer decides to make any modifications to a Purchase Order which has been issued to a Manufacturer, the Buyer is responsible for contacting the Manufacturer to obtain a change order which details any changes to the Purchase Order (each a “Change Order”). The Change Order will prevail over the Purchase Order, and any Additional Terms or Buyer Requirements, unless the Manufacturer and Buyer specifically agreed to deviations from the Additional Terms or the Buyer Requirements. [NTD: For Payment Management Services, will Axya be doing this for the Buyer? Is there a limit to the number of changes that you will handle, and do the transaction fees apply to the change orders as well? Is there a way to handle change management in the platform?]

  1. REPRESENTATIONS AND WARRANTIES

The Buyer represents and warrants that: 

  • The RFQs created through the Axya Platform, along with any Additional Terms and Buyer Requirements, are in compliance with Applicable Laws.

  • The Buyer is legally authorized to order the Parts and Materials through the Axya Platform, including that the export and import of the Parts and Materials, including any related technical information, are not in violation of Export Control Laws.

  • The Buyer’s purchase of the Parts and Materials and subsequent payment is not in violation of the AML Requirements.

  • The Buyer’s use of the Parts and Materials will be in accordance with the Manufacturer’s reasonable instructions and documentation.

Axya represents and warrants that the Services will be performed in good faith, in a professional and workmanlike manner, substantially in accordance with the Terms. Axya will comply with the Buyer’s reasonable instructions as part of the Payment Management Services, including payment terms agreed upon, and will disburse the Parts and Materials Charges in accordance with such documented instructions.

  1. SUSPENSION

You agree that we can suspend your access and use of the Services, or parts thereof, (a) in case of a violation of Applicable Laws; (b) you or your End Users commit or attempt to commit an Abuse; (c) as necessary to protect our infrastructures and other Members (a “Suspension”); (d) Axya or the Manufacturer determines that the Transaction is unlawful, such that it constitutes a breach of Export Laws, Anti-Bribery Laws or AML Requirements; (e) if the Buyer is more than 60 days late in the payment of the Fees. Each Suspension shall be the minimum extent possible to resolve the circumstances which gave rise to such Suspension. In addition to the foregoing, the Manufacturer may suspend the provision of the Parts and Materials until the payment of the Parts and Materials Charges is received if indicated in a Purchase Order.

  1. DISCLAIMERS

EVEN IF AXYA PERFORMS INDEPENDENT VALIDATION OF THE BUYER ON THE AXYA PLATFORM, NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY IN THESE TERMS, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, (A) YOU AGREE AND UNDERSTAND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY VENDOR SELECTION THROUGH AN INITIAL RFQ OR FOR ANY VENDOR DUE DILIGENCE PRIOR FOR SELECTING A QUOTE (OR PRE-SELECTING IF THE BUYER IS SUBSCRIBED TO THE PAYMENT PROCUREMENT SERVICES; AND (B) YOU AGREE AND UNDERSTAND THAT NEITHER AXYA NOR ITS DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES OR OFFICERS (THE “AXYA REPRESENTATIVES”) NOT BE LIABLE FOR ANY CLAIMS, PENALTIES, FINES, LIQUIDATED DAMAGES, INTERESTS, ALLEGATIONS, LOSSES, DAMAGES, CLAIMS, COSTS OR EXPENSES (THE “LOSSES”) RESULTING FROM THE PROCUREMENT OF THE PARTS AND MATERIALS, EXCEPT IF SPECIFICALLY AGREED UPON IN THESE TERMS OR AN ORDER FORM. 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY, IF THE BUYER IS NOT SUBSCRIBED TO THE PAYMENT MANAGEMENT SERVICES, NEITHER AXYA NOR THE AXYA REPRESENTATIVES WILL HAVE ANY LIABILITY WHATSOEVER WITH REGARDS TO THE PAYMENT OF THE PARTS AND MATERIALS, PROCUREMENT OR TRANSACTION.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY, NEITHER AXYA NOR THE AXYA REPRESENTATIVES ARE RESPONSIBLE OR LIABLE FOR ANY DELAYS IN RECEIVING OR FAILURE TO RECEIVE THE PARTS AND MATERIALS CHARGES FROM THE BUYER IN BREACH OF THE TERMS, INCLUDING ANY INTERESTS AND PENALTIES IMPOSED BY THE MANUFACTURER AS A RESULT OF SUCH DELAY OR FAILURE. THE FOREGOING SHALL APPLY EVEN IF THE BUYER IS SUBSCRIBED TO THE PAYMENT MANAGEMENT SERVICES, AND THE BUYER IS SOLELY RESPONSIBLE FOR THE PAYMENTS OF SUCH INTERESTS AND PENALTIES.

NEITHER AXYA NEITHER ITS REPRESENTATIVES ARE RESPONSIBLE FOR THE USE OF THE PARTS AND MATERIALS BY THE BUYER OR OTHER THIRD PARTIES, AND THE BUYER IS RESPONSIBLE FOR FOLLOWING ANY MANUFACTURER’S INSTRUCTIONS AND DOCUMENTATIONS REGARDING THE USE OF THE PARTS AND MATERIALS.

EXCEPT AS PROVIDED IN THE TERMS, AND SUBJECT TO THE TERM, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, THE MEMBERS, AXYA AND THE AXYA REPRESENTATIVE DO NOT WARRANT THAT THE SERVICES, THE PARTS AND MATERIALS, THE SHIPPING, THE TRANSACTION AGREEMENT AND ANY TECHNICAL INFORMATION WILL BE ERROR FREE OR UNINTERRUPTED OR FIT FOR A PARTICULAR PURPOSE. EXCEPT AS SET FORTH HEREIN AND SUBJECT TO APPLICABLE LAWS, THE MEMBERS, AXYA AND THE AXYA REPRESENTATIVES HEREBY DISCLAIM ANY AND ALL IMPLIED OR EXPRESS WARRANTIES, WHETHER STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, TITLE AND NON-INFRINGEMENT. TO THE FULL EXTENT PERMITTED BY APPLICABLE LAWS AND EXCEPT AS SET FORTH HEREIN, THE SERVICES, THE PARTS AND MATERIALS, THE SHIPPING, THE TRANSACTION AGREEMENT AND ANY TECHNICAL INFORMATION ARE PROVIDED AS IS, AS AVAILABLE AND WHERE IS. NO ORAL ADVICE, WRITTEN OR ELECTRONICALLY DELIVERED BY AXYA OR THE AXYA REPRESENTATIVES WILL CREATE ANY REPRESENTATION OR WARRANTY.

  1. BETA SERVICES

If the Buyer is provided with the BETA Services are provided without warranty or representation of any kind, and Axya disclaims all warranties and representations, whether implied or express. The BETA Services are provided “as is”, “as available” and “where is”, at the Buyer’s sole risks. There may be bugs and errors in the BETA Services, and you may be required to share Feedback. With regards to Beta Services, this section shall have precedence over the remaining Terms in case of conflict.

  1. THIRD-PARTY BENEFICIARY 

The Manufacturer is a third-party beneficiary of these Terms and can enforce these Buyer Terms against the Buyer in relation to a Transaction to which it is a party, including with regards to the receipt of the Parts and Materials Charges. [NTD: If we ultimately merge the Manufacturer TOS and Buyer TOS, this would be removed.]

  1. MODIFICATIONS TO THE SERVICES AND TERMS 

We reserve our right to change the Services upon written notice to the Buyer, except that such changes will not affect current Order Forms. We may also modify the Terms from time to time. If we modify the Terms: (a) such modifications will not apply to current Purchase Orders and issued RFQs; (b) we will provide you with a prior notice, through the Axya Platform or the email registered with your accounts, at least 30 days before these changes are effective and (c) we will update the Latest Update date above. If we provide you with a prior notice and you do not object to the changes to the Terms within 30 days, we will understand that you agree with these changes. We will also understand that you agree with these changes if you submit a new RFQ and validate the current Terms as applicable when issuing the RFQ. 

  1. TECHNICAL SUPPORT AND MAINTENANCE

Axya will provide reasonable TSS such as to allow the Buyer and its End Users to use the Axya Platform. The TSS are available through live chat and email at support@axya.co. If a request cannot be resolved through Level 1 initial support, a TSS ticket is created and prioritized based on its severity. Responses to TSS requests are provided between 9 AM and 5 PM ET, excluding any statutory holidays in the province of Quebec (the ’Business Hours”). During the Business Hours, Axya will acknowledge the reception of the request within 48 hours. Axya will provide reasonable follow-up for TSS tickets until resolution, including by providing a workaround where appropriate.

  1. INFORMATION SECURITY AND OTHER SECURITY REQUIREMENTS

The Buyer is responsible for making all appropriate Vendor Due Diligence, including regarding information security, physical security, cybersecurity and other requirements which are proportional to the sensitivity of the technical information and other Confidential Information shared with the Manufacturer. The Buyer is also responsible for including any such contractual requirements in the Buyer Requirements. [NTD: The Manufacturer TOS includes more extensive requirements for the technical information that it receives through the platform.] Inversely, if the Buyer receives Confidential Information from the Manufacturer, the Buyer is responsible for implementing adequate technical and organizational measures to ensure the confidentiality, integrity and availability of such Confidential Information. 

In case of an unauthorized access, use or disclosure of another party’s Confidential Information in breach of these Terms, including a breach of confidentiality, integrity or availability which presents potential or actual risks to this party or its Confidential Information (each a “Security Breach”), the breached party will notify the affected party without undue delay, and at most, within 72 hours. The notification will contain enough information to allow the affected party to provide all required information, and the breached party will collaborate in good faith with the affected party to recover any Confidential Information or to mitigate the impacts of such Security Breach. The notification will occur using the contact information set forth in the Purchase Order unless agreed otherwise.

  1. PERSONAL DATA

Each party to this Agreement will process Personal Data in accordance with Applicable Laws. Axya processes Personal Data in accordance with its Privacy Policy. [NTD: The Privacy Policy is also a document on our list of documents that must be completed.] We will use commercially reasonable efforts to assist you in responding to individual privacy requests from End Users. If we receive such requests regarding End Users, we will notify you without delay. Each party to these Buyer Terms accepts to cooperate in good faith when necessary to respond to these demands in compliance with the Applicable Laws, and to the extent necessary to comply with the Applicable Laws. If the General Data Protection Regulation (“GDPR”) is applicable, Axya’s Data Processing Agreement shall apply by default, and shall prevail over the Terms. [NTD: This is part of our list of documents to complete, and it would be available online through your website, so you would have an URL. This is very “template” so it’s pretty quick to do after.] The Manufacturer is subject to the same obligations through the Manufacturer Terms, however, it is the Buyer’s responsibility to validate that such terms and conditions regarding Personal Data are sufficient for the Buyer’s exchange of Personal Data with the Manufacturer, and for including any additional terms in the Buyer Requirements.

  1.   INDEMNIFICATION

You hereby agree to indemnify, defend and hold us (including the Axya Representatives) harmless from and against any third party claims, penalties, fines, costs, expenses (including reasonable attorneys’ fees), actions, damages, losses or liabilities arising directly or indirectly out of, related to, or resulting from (A) your breach of Applicable Laws; (B) your breach of these Terms and (C) your gross negligence, fraud and willful misconduct. 

  1. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, AND EXCEPT IN THE CASE OF GROSS NEGLIGENCE, FRAUD AND WILFUL MISCONDUCT, NEITHER AXYA NOR THE AXYA REPRESENTATIVES WILL BE LIABLE TO THE BUYER AND THE BUYER REPRESENTATIVES (A) FOR ANY LOSSES OF PROFITS, SPECIAL, INDIRECT, INCIDENT, CONSEQUENTIAL OR EXEMPLARY DAMAGES IN RELATION TO THE TERMS OR THE PERFORMANCE OF THE SERVICES, REGARDLESS IF IT HAS BEEN MADE AWARE OF THE POSSIBILITY OF OCCURRENCE OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SUCH DAMAGES INCLUDE LOSS OF DATA, REPUTATIONAL DAMAGES, COSTS OF NOTIFICATION OR RETRIEVAL OF DATA, AND LOSS OF BUSINESS AND OPPORTUNITIES AND (B) ANY DIRECT DAMAGES ARISING OUT OR IN CONNECTION WITH THE TERMS, TRANSACTION AND PERFORMANCE OF THE SERVICES SHALL BE LIMITED TO THE GREATER OF THE VALUE OF THE TRANSACTION FEES PAID TO AXYA OVER THE LAST 12 MONTHS PRECEDING THE EVENT WHICH GAVE RISE TO SUCH DAMAGES. THE FOREGOING SHALL NOT APPLY IF AXYA FAILS TO MAKE A PAYMENT TO A MANUFACTURER PURSUANT TO THE PAYMENT MANAGEMENT SERVICES, IN WHICH CASE, AXYA’S AGGREGATE LIABILITY WILL BE LIMITED TO THE PAYMENT OF THE PARTS AND MATERIALS CHARGES, INCLUDING ANY INTERESTS AND PENALTIES LEGALLY IMPOSED IN ACCORDANCE WITH THE TERMS, WHICH SHALL NOT EXCEED 15% OF THE VALUE OF THE PARTS AND MATERIALS CHARGES.

UNLESS INDICATED OTHERWISE IN A PURCHASE ORDER, THE MEMBERS’ LIABILITY TO EACH OTHER WILL BE LIMITED TO THE VALUE OF THE PARTS AND MATERIALS CHARGES PAID BY THE BUYER TO THE MANUFACTURER.

THE LIMITS OF LIABILITY SET FORTH HEREIN ARE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, AND DO NOT INCLUDE DAMAGES RESULTING FROM ANY BODILY HARM, MORAL DAMAGES, GROSS NEGLIGENCE, FRAUD, WILFUL MISCONDUCT AND MATERIAL BREACHES OF APPLICABLE LAWS. 

  1. FORCE MAJEURE

Neither the Buyer, nor the Manufacturer or Axya will be liable for delays in or failure of performance hereunder due to causes beyond its reasonable control, including, but not limited to, acts of God or public enemy, acts of government in either its sovereign or contractual capacity, flood, earthquake or other natural disaster, strike or other labor disputes, acts of war, acts of civil disobedience, denial-of-services and distributed-denial-of-services, ransomware and other cyber-attacks that are not caused or facilitated by negligence (a “Force Majeure”). 

Notwithstanding anything to the contrary, the parties agree and acknowledge that pandemics such as the circumstances caused by COVID-19 will be considered a Force Majeure even if known by the parties at the time of executing a Purchase Order, but only to the extent that the Force Majeure was not known at the time of executing a Purchase Order. 

In the event of a Force Majeure, the affected party will advise the Buyer or Axya within 3 days. If the Manufacturer cannot deliver the Parts and Materials, or if such delivery is substantially delayed by the Force Majeure, and such delays cause material disagreements to the Buyer, the Buyer may cancel a Purchase Order upon writing notice, if the Force Majeure is not resolved within 5 days of receiving such notice. In the event of such cancellation, the Buyer will pay for the direct costs and expenses resulting from this termination, such as for any Fees which cannot be canceled, including the Transaction Fees, and the Manufacturer will provide to the Buyer any Parts and Materials which the Buyer pays for in accordance with the foregoing. In no event will Axya be responsible for a Manufacturer’s Force Majeure, and the Buyer shall pay Axya for all Transaction Fees due, regardless of any cancellation due to a Force Majeure. 

  1. INSURANCE 

The Buyer is solely responsible for subscribing to appropriate insurance coverage for the purchase of the Parts and Materials, including where any delivery terms do not include insurance for the shipment of the Parts and Materials. The Buyer is also responsible for obtaining certificates of insurance demonstrating that each Manufacturer from whom it purchases Parts and Materials has adequate insurance coverage in accordance with the Buyer Requirements. [NTD: I would suggest that you also ask for COI from the Manufacturers as part of your due diligence requirements. We could also include obligations for you herein, but I’m not sure that you will always have sufficient insurance so let’s leave at this and go to market, we can come back to it if it is a frequent request.]

  1. DISPUTE RESOLUTION PROCEDURE

Mandatory Mediation. Except as agreed upon pursuant to a Purchase Order, any dispute, misunderstanding, complaints and claims between the parties, or between a party and a Member, arising from the application or interpretation of the Terms, including with regards to the Parts and Materials, a Transaction, or the use of the Axya Platform (each a “Dispute”), that is not resolved within thirty 30 days from a written notice of Dispute being given by one party to the other party (the “Plaintiff”) shall be referred to mandatory mediation. The Breached Party and the party which is subject to the Dispute at the request of the Breached Party (the “Defendant”) agree to participate in good faith in at least one (1) mediation session by delegating a person in authority to participate. The mediator will be selected jointly by the parties acting reasonably, or in case of a Dispute between Members, the Members may require that Axya select, acting reasonably, a mediator on their behalf. The mediation will be conducted in English in the City of Montreal, Province of Quebec, or, if the Defendant and the Plaintiff (the “Participants”) agree, through videoconferencing technology. The Participants are each responsible for their own costs relating to the mediation and will share equally the other costs associated with the mediation, such as any professional fees. The Participants may agree to conduct the mediation in any other language of their choices, including French, subject to the availability of mediators. The parties agree that the mediation will be considered confidential, and the information shared during the mediation cannot be used in subsequent legal proceedings, including arbitration.

If the Participants settle the Dispute through mediation, they shall jointly draft a document setting out the terms of such settlement. This document, once signed, will be irrevocably binding on the Participants, and may be subject to homologation by a competent court in Montreal, Quebec, Canada. 

Mandatory Arbitration. If the Participants do not agree to a resolution of a Dispute as part of mediation, the Participants agree that such Dispute will be referred to and finally resolved by arbitration under the Canadian Arbitration Association Arbitration Rules. The place of arbitration shall be Montreal, Quebec, Canada (unless agreed otherwise in writing between the Participants) The language of the arbitration shall be English, unless the Participants agree for the arbitration to occur in another language for which there is an available arbitrator. There will be a sole arbitrator selected jointly between the Participants, or if the Participants cannot agree, by a judge of a competent court in accordance with these Terms.

The arbitrator must select its award from one of the final offers made by each of the parties, in its entirety and without modification. The arbitrator must provide detailed reasons for its award. An oral hearing need not be held, and the parties may submit their observations in writing. There will be no appeal from the decision of the arbitrator on questions of fact, law or mixed fact and law. The decision arrived at by the arbitrator shall be final and binding and no appeal shall lie therefrom. The costs of the arbitration shall be divided equally between the Participants, and each Participant will bear its own costs of representation. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction.

Governing Laws and Jurisdiction. The Terms (including the performance of the Services, the Purchase Order, the Quote, the RFQ and the Transaction) are governed by and constructed in accordance with the laws of Quebec, Canada, and the federal law applicable therein, without giving effect to any choice or conflict of law provision or rule (whether in Quebec or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of Quebec, Canada. Specifically excluded from application to the Terms is that law known as the United Nations Convention on the International Sale of Goods. Except as set forth in these Terms, the parties attorn to the jurisdiction of the competent courts located in Montreal, Canada. Notwithstanding the foregoing, the Buyer may require another jurisdiction and governing laws to apply to its agreement with the Manufacturer in the Buyer Requirements, however, Axya and the Axya Representatives will not be affected by such changes and the relationship between the Buyer and Axya will be governed in accordance with the foregoing.

Disclaimer. NEITHER AXYA NOR ITS REPRESENTATIVES ARE RESPONSIBLE FOR RESOLVING ANY DISPUTES OR MISUNDERSTANDINGS BETWEEN THE MEMBERS. EXCEPT AS SET FORTH HEREIN, OR AS REQUIRED TO ENFORCE THESE TERMS AGAINST AXYA WHERE AN OBLIGATION IS DIRECTLY ATTRIBUTABLE TO AXYA, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, NEITHER AXYA NOR THE AXYA REPRESENTATIVES WILL BE INVOLVED IN ANY DISPUTES. TO THE FULL EXTENT PERMITTED BY APPLICABLE LAWS, THE BUYER AND THE MANUFACTURER, INCLUDING THEIR AFFILIATES, EMPLOYEES, DIRECTORS, OFFICERS, AGENTS AND OTHER REPRESENTATIVES HEREBY WAIVE ANY RIGHTS TO SUE AXYA AND THE AXYA REPRESENTATIVES FOR THEIR DISPUTE, AND RENOUNCE ANY RIGHTS TO PARTICIPATE IN ANY CLASS ACTION LAWSUITS OR ANY TRIAL BY JURY.

  1. TERM; TERMINATION

Each party may terminate these Buyer Terms, upon written notice to the other party if this party is in material breach of the Buyer Terms and has not remedy such breach within 30 days, or if the other party is insolvent, declared bankrupt, is subject to bankruptcy proceedings or ceases to conduct its business [NTD: It is a good idea to address the notion of bankruptcy in the Manufacturer Terms, so that Axya is not liable in this case.]. The Buyer remains responsible for the payments of any Fees which are incurred until the termination date, including any Parts and Materials Charges incurred by the Buyer, regardless of whether the Buyer Terms are terminated. If the Buyer Terms are terminated due to the fault of Axya, then the Buyer remains part of the Transaction Agreement, and the Buyer Terms continue to apply for such Transaction. For the avoidance of doubt, the Buyer remains obliged to pay for the Parts and Materials Charges, except that the Buyer will not be required to pay for the Transaction Fees if the Buyer Terms are terminated due to the fault of Axya. All provisions that should survive the termination of these Buyer Terms by their nature, such as those applicable to any ongoing Transactions, will continue to apply for 5 years after the termination of the Buyer Terms, for any reasons whatsoever.

  1. GENERAL PROVISIONS 

Axya is an independent contractor, and the parties agree that the Terms do not create a partnership, joint venture, or agency relationship between the parties.

The waiver of a breach of any provision of the Terms will not operate or be interpreted as a waiver of any other or subsequent breach of the Terms. If any provision of the Terms is in violation of Applicable Laws or is illegal for any reason, said provision shall be self-deleting without affecting the validity of the remaining provisions. These Terms describe the entire understanding of the parties and supersede all oral and written agreements or understandings between them related to its subject matter.

We may assign the Terms, or any parts thereof, in whole or in part, at any time in the context of a bona fide corporate reorganization, a sale of our assets, a merger and acquisition or bankruptcy filings. You may not assign the Terms, or part of it, to any other person without our prior written approval, except pursuant to the Payment Management Services. Any attempt by you to assign the Terms without our consent is void. The Terms will inure to the benefit of permitted assigns and successors. 

The parties acknowledge that they have required the Terms and all related documents to be prepared in English only. Les parties reconnaissent avoir demandé que le présent contrat ainsi que tous documents qui s’y rattachent soient rédigés uniquement en langue anglaise.





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