Buyers Terms of Services
These Terms of Services (the “Buyer Terms”) are between the corporation which registers as a buyer through the Axya Platform (the “Buyer”; “you”) and Axya, with a registered office at 1155 Rue Metcalfe Suite 1583, Montréal, QC H3B 2V6 (“Axya”). The Buyer Terms enter into force upon your acceptance and will continue in full force for as long as you have an active account with us (the “Term”).
PLEASE READ THESE TERMS CAREFULLY PRIOR TO CREATING AN ACCOUNT WITHIN THE AXYA PLATFORM. THESE TERMS APPLY TO YOUR USE OF THE SERVICES AS A BUYER, AND TO EVERY RFQ THAT YOU WILL CREATE WITHIN OUR SERVICES. UNLESS YOU OVERRIDE THESE BUYER TERMS IN THE RFQ, YOU AGREE THAT THE PURCHASE, DELIVERY AND OTHER TRANSACTIONAL TERMS SET FORTH HEREIN WILL APPLY BY DEFAULT TO ANY TRANSACTIONS WITH A MANUFACTURER, AS FURTHER EXPLAINED BELOW.
“Additional Terms” means any deviations from the Applicable Terms which the Manufacturer and the Buyer agree upon, including the Buyer Requirements if agreed upon by the Manufacturer through the issuance of a corresponding Quote or otherwise.
“Applicable Laws” means any statute, regulation, rule, code, ordinance, constitution, treaty, common law, judgment, 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.
“Transaction Agreement” means the Buyer Terms, the Manufacturer Terms, the Additional Terms, the Buyer Requirements and any amendments thereto.
“Axya Platform” means the platform operated by Axya to connect the Manufacturers with the Buyer to conduct a Transaction and which is available in a web browser.
“Axya Quote” means a quote issued by Axya detailing the requirements for the Payment Management Services and which contains the Transaction Fees applicable to the Payment Management Services.
“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 Buyer’s requirements including in a RFQ pursuant to a Transaction and which includes the Buyer’s preferred purchase and payment terms.
“Confidential Information” means any information of a party (the “Disclosing Party”) that is or will be divulged to the Buyer within the Axya Platform or pursuant to this Agreement, including to a Manufacturer (the “Receiving Party) and 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.
“End Users” means individuals, such as employees or agents, which the Buyer authorizes to access and use the Services, such as through the Admin Console.
“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 by the Buyer pursuant to a Transaction.
“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, trademark law, the law 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” means the suppliers, distributors, manufacturers and vendors who have registered a manufacturer account with Axya to access the Axya Platform.
“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: [●]
“’Member” means either a buyer or a manufacturer within the Axya Platform.
“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, but excluding the Transaction Fees.
“Payment Management Services” means the services performed by Axya according to which it issues Purchase Orders for the Buyer, collects the Parts and Materials Charges from the Buyer, and issues the payment to the Manufacturer, in exchange for the Transaction Fees.
“Purchase Order” means a purchase order which details the Parts and Materials, the Parts and Materials Charges, the Buyer Requirements and the Additional Terms.
“Quote” means a legally binding quote submitted by a Manufacturer in response to an RFQ, through the marketplace on the Axya Platform.
“RFQ” means requests for proposals issued by the Buyer within the Axya Platform.
“Services” means the Payment Management Services, the Axya Platform and the Technical Support Services, indiscriminately.
“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 this Transaction.
“Transaction Fees” means the fees which is paid by the Buyer in accordance with the Axya Quote for the Payment Management Services.
The Axya Platform allows the Buyer to create RFQs and purchase Parts and Materials. Manufacturers apply to RFQs by submitting Quotes. In accordance with these Buyer Terms, Axya may also agree to perform Payment Management Services in exchange for the Transaction Fees.
ELIGIBILITY TO THE AXYA PLATFORM
The Buyer must create an account to use the Services (the “Buyer Account”). By creating a Buyer Account with us, you represent and warranty that (a) the individual acting on behalf of the Buyer in entering into these Buyer Terms has the authority to bind the Buyer; (b) the Buyer has all requisite right, power and authority to enter into, perform its obligations under, and grant the rights and authorizations under the Applicable Terms; (c) the Buyer is a corporation duly registered entity in the jurisdiction in which it operates, and is in good standing; (d) the information provided by the Buyer to validate its existence and good standing is truthful and accurate; and (e) the Buyer has not been found in breach of any Applicable Laws to the prevention of fraud, bribery, corruption, racketeering, money laundering or terrorism, including but not limited to the Canadian Corruption of Foreign Officers Act, as amended (“Anti-Bribery Laws”) and its use of the Services is not in breach of Export Control Laws (the “Eligibility Requirements”). In case of a breach of the Eligibility Requirements by the Buyer, Axya may terminate the Buyer’s acess to the Services upon written notice. Axya may reject the Buyer’s application to a Buyer Account at its sole discretion, in which case, these Buyer Terms end immediately.
END USER PROVISIONING
The Buyer is responsible for providing and removing access rights of End Users. Except as set forth herein, the buyer (a) is responsible for keeping credentials confidential, blocking access to compromised accounts and changing compromised passwords; and (b) will be responsible for any actions performed through the Buyer Account, and for any Fees due as a result of such actions.
ACCEPTABLE USE OF THE AXYA PLATFORM
The Services may not be used in a manner (i) that is prohibited by Applicable Laws; (ii) which constitutes a breach of individuals’ rights to privacy and other moral rights; (iii) in a way that is threatening, abusive, hateful or which constitutes harassment; (iv) that results in the abnormal, automated, constant and repeated requests for data (e.g. by denial of services attacks); (v) that gives rise to criminal, fraudulent or civil liability or penalties, or otherwise encourages such conduct; (vi) that results in the sharing of identifiers and passwords with unauthorized users; (vii) that involves the use of time-sharing services, network or other means of sharing accounts; (viii) that involves any robot, spider, scraper, deep link or other automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor the Services or any data collected, used or generated by the Services except through the functionalities which makes available to Customers; (viii) that involves decompiling, disassembling, reverse engineering, attempting to reconstruct or discovering any Intellectual Property or Confidential Information of Salesfloor disclosed under this Agreement, including, without limitation, source codes, ideas, and algorithms of the Services’ underlying technology by any means whatsoever and (ix) that involves violating security safeguards and authorized configurations for the Services (including its network, servers and related systems), including, without limitation by knowingly posting or transmitting files, data or computer text which contain viruses, worms, Trojan horses, malicious software or any other contaminating or destructive features.
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 may constitute Intellectual property of the Disclosing Party, regardless of whether the Confidential Information is protected by valid copyrights or patents. The Receiving Party will only use and disclose the Confidential Information of the Disclosing Party for the intended purposes, such as to allow Axya to provide the Services in accordance with this Agreement, including to facilitate the Transaction. For the avoidance of doubts, the Buyer will only use the Manufacturer’s Confidential Information in relation with a Transaction, and the Quotes, Purchase Orders, RFQ, Buyer Requirements and Additional Terms are Confidential Information. The Receiving Party will apply the same level of care to protect the Disclosing Party’s Confidential Information than for its own Confidential Information, but no less than a reasonable degree of care. Upon the conclusion of a Transaction, the Receiving Party will securely delete all of the Disclosing Party’s Confidential Information, unless retention is required for business continuity purposes, or to comply with Applicable Laws. Notwithstanding the foregoing, Axya maintains copies of all Confidential Information hosted on the Axya Platform until an account is deleted. It is the Buyer’s responsibility to delete Confidential Information from the Axya Platform when no longer needed.
As between the parties, each party (and each Member) 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 each of Member 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 commentary 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 Buyer Terms.
REQUESTS FOR QUOTES ; QUOTES
The Buyer generates RFQs and is solely responsible for identifying any Buyer Requirements such as payment terms, Parts and Materials Warranty, technical specifications, and any deviations from the Buyer Terms. The Buyer Requirements are between the Manufacturer and the Buyer. If no Buyer Requirements are entered into the RFQ, the Buyer agrees that the relevant parts of the Buyer Terms will apply by default, in particular Section 11 (Buyer Payment Terms), Section 13 (Delivery, Shipping), Section 14 (Parts and Materials), Section 15 (Change Management), Section 15(a) (Buyer Representations and Warranties), Section 17 (Disclaimers). The Members may negotiate Additional Terms from time to time, in which case, the Members are responsible for including these Additional Terms in the Purchase Order generated based on the RFQ.
THE BUYER AGREES AND UNDERSTANDS THAT THE BUYER TERMS APPLY BY DEFAULT TO ANY TRANSACTION, UNLESS ADDITIONAL TERMS ARE NEGOTIATED BY THE PARTIES.
Each Quote is valid for the time period indicated by the Manufacturer, or if none is indicated, during 30 days from the date of quotation. The Manufacturer may not modify the Quote during this period unless agreed upon with the Buyer.
The Applicable Terms are deemed part of and included in the RFQ issued by the Buyer, and the Applicable Terms to the Transaction are between the Buyer and the Manufacturer, except that the Buyer may delegate payment collection and disbursement through the Payment Management Services. Notwithstanding anything to the contrary, or any mention to the contrary, including in an invoice, Axya is not the buyer of the Parts of Materials, including in relations to the Payment Management Services. The covenants and warranties engaging the Members herein are included in the Member’s agreement regarding the Transaction, and are provided directly by a Member to another Member.
Axya will deploy commercially reasonable efforts to conduct pre-screening of Manufacturers prior to providing such 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 responsible for issuing RFQs to Manufacturers through the Axya Platform, and for selecting Manufacturers following the issuance of the RFQs, including to validate compliance with Applicable Laws and the Buyer Requirements.
YOU AGREE AND ACKNOWLEDGE THAT WE WILL PROVIDE YOU WITH ACCESS TO A NETWORK OF MANUFACTURERS AND THAT YOU WILL CONDUCT TRANSACTIONS WITH SUCH MANUFACTURERS WITHIN THE AXYA PLATFORM ONLY. IF WE DISCOVER THAT YOU ENTERED INTO TRANSACTIONS WITH MANUFACTURERS TO WHICH YOU HAVE BEEN INTRODUCED TO ON THE AXYA PLATFORM WITHOUT USING THE AXYA PLATFORM, WE RESERVE OUR RIGHTS TO SUSPEND YOUR USE OF THE SERVICES.
PROCUREMENT OF PARTS AND MATERIALS
A contract is created between the Buyer and the Manufacturer upon the issuance of a Purchase Order, unless such Purchase Order is issued after a Quote ceases to be binding and valid or does not correspond to the Applicable Terms for the Transaction, in which case, the Manufacturer may request modifications to the Purchase Order within five (5) business days of receiving such Purchase Order.
The Buyer is responsible for generating a Purchase Order which accurately reflects the Quote and any Applicable Terms (including the Additional Terms negotiated by the Members). Axya is not responsible for verifying whether the Purchase Order complies with the Buyer Requirements or any Additional Terms. Axya does not provide any legal advice on the content of a Purchase Order, including Additional Terms, and the Members decide themselves whether the Additional Terms are appropriate for their business and legal requirements.
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.
BUYER PAYMENT TERMS
Parts and Materials Charges. The Buyer Payment Terms apply by default to any RFQ, except as set forth in the Buyer Requirements and Additional Terms. The Parts and Materials Fees are paid to the Manufacturer, except as set forth in the Payment Management Services. 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,.
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.
Late Payment. If the Buyer is late in the payment of the Fees, the Buyer agrees to pay for interest 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.
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, 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. The Buyer must review the Purchase Order to ensure that (a) it 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 REGARD 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.
Unless agreed otherwise in a Purchase Order (such as through the Buyer Requirements or Additional Terms), any delivery and shipping within Canada is subject to DDP Incoterms 2010. This means that the Manufacturer fulfils the obligation to deliver when 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 these 15 days. The Manufacturer will not be obliged to pay any penalties or liquidated damages due to this delay except as set forth herein.
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 government’s 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.
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.
Upon delivery of 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 regard 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 cost to the Buyer, (a) repair the Parts and Materials so that it complies with the Parts and Materials Warranty; (b) provide the Buyer with 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. The Manufacturer assumes delivery and shipping costs.
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.
REPRESENTATIONS AND WARRANTIES
BUYER 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 REPRESENTATIONS AND WARRANTIES
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, unless prevented to do so by delays caused by the Manufacturer.
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.
EVEN IF AXYA PERFORMS INDEPENDENT VALIDATION OF THE MANUFACTURERS 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 REGARD 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, ITS REPRESENTATIVES OR THE MANUFACTURERS 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 APPLICABLE 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.
If the Buyer is provided with the BETA Services, they 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 regard to Beta Services, this section shall have precedence over the remaining Terms in case of conflict.
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.
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 firstname.lastname@example.org. 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 workaround where appropriate.
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.
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.
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 the Applicable Terms and (c) your gross negligence, fraud and wilful misconduct.
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’S 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 OF 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 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.
Neither the Buyer, nor the Manufacturer or Axya will be liable for delays in 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 labour 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 any Fees which cannot be cancelled, 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.
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 responsible for making its own Vendor Due Diligence with regard to the Manufacturers’ insurance coverage, such as by requesting certificates of insurance from the Manufacturers as part of the RFQ.
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 regard 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 of 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 for 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 the 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.
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. 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.
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 supersedes 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.