Sales Terms and Conditions
FOOTAGE TOOLS INC.
TERMS AND CONDITIONS OF SALE
By ordering, purchasing or receiving a Product (as subsequently
defined) from the Supplier (as subsequently defined) or the Distributor
(as subsequently defined), the End Consumer (as subsequently defined)
is deemed to have automatically agreed to these Terms and Conditions
of Sale (also called “Terms and Conditions”).
These Terms and Conditions are automatically incorporated into,
attached to and form a part of each Purchase Agreement (as
subsequently defined).
These Terms and Conditions shall not be modified or waived by, nor
deemed to be modified or waived by, (a) any other terms or conditions
of the Buyer, Distributor or the End Consumer (each subsequently
defined), (b) any course of performance or dealing or (c) any usage of
trade.
The Distributor shall provide a copy of these Terms and Conditions
(including the provisions relating to limitation of liability and
warranties) to the End Consumer prior to the End Consumer
purchasing a Product from the Distributor. The Distributor shall be
solely responsible to do so and shall be solely liable for failing to do so
(whether inadvertently or not). The Distributor shall fully indemnify
and hold the Supplier harmless from and against any and all Claims
(as subsequently defined) which may be made or brought against the
Supplier by the Distributor’s End Consumer or which the Supplier may
suffer or incur due to the Distributor’s End Consumer as a result of, in
respect of or arising out of the Distributor not providing a copy of these
Terms and Conditions (including the provisions relating to limitation
of liability and warranties) to the End Consumer.
1. Definitions.
In these Terms and Conditions, unless there is something in the
subject matter or context inconsistent therewith, the following
words have the following meanings:
“Buyer” means a Person who purchases Product directly from the
Supplier under a Purchase Agreement;
“Claim” means any and all claims, damages, losses, liabilities,
demands, suits, judgments, causes of action, legal proceedings,
penalties or other sanctions and any and all costs and expenses
arising in connection therewith, including, without limitation, all
legal fees and disbursements (including, without limitation, all
such legal fees and disbursements in connection with any and all
appeals);
“Claimant” has the meaning ascribed to it in Section 22(b) of
these Terms and Conditions;
“Damage” has the meaning ascribed to it in Section 9(b) of these
Terms and Conditions;
“Delay” has the meaning ascribed to it in Section 3(b) of these
Terms and Conditions;
“Delivery Date” has the meaning ascribed to it in Section 3(a) of
these Terms and Conditions;
“Delivery Point” has the meaning ascribed to it in Section 3(d)
of these Terms and Conditions;
“Dispute” has the meaning ascribed to it in Section 22(a) of these
Terms and Conditions;
“Distributor” means a Person, authorized by Supplier, to which
Supplier is providing Product under a Purchase Agreement and
who may re-sell Product to an End Consumer;
“Encumbrances” means security interests, charges, mortgages,
liens, hypothecs, encumbrances, actions, claims, demands and
equities of any nature whatsoever or howsoever arising and any
rights or privileges capable of becoming any of the foregoing;
“Extension of Credit” has the meaning ascribed to it in Section
4(a) of these Terms and Conditions;
“End Consumer” means a Person who purchases Product from
a Distributor (directly or indirectly);
“Facility” has the meaning ascribed to it in Section 3(d) of these
Terms and Conditions;
“Governmental Entity” means any:
(a) federal, provincial, municipal, territorial, state, local or
other governmental or public department, court,
commission, board, bureau, agency, authority or
instrumentality, domestic or foreign, including any
police department, fire department, health department,
and building department;
(b) any subdivision, agent, commission, board or authority
of any of the foregoing; or
(c) any quasi-governmental or private body exercising any
regulatory authority under or for the account of any of
the foregoing;
“Inspection Period” has the meaning ascribed to it in Section
6(a) of these Terms and Conditions;
“Laws” means all statutes, codes, ordinances, decrees, rules,
regulations, municipal by-laws, judicial or arbitral or
administrative or ministerial or departmental or regulatory
judgments, orders, decisions, rulings or awards, policies,
voluntary restraints, inspection reports, guidelines, or any
provisions of such laws, including general principles of common
law and equity and the requirements of all Governmental Entities,
binding or affecting the Person referred to in the context in which
such word is used;
“Limited Warranty Period” has the meaning ascribed to it in
Section 9(b) of these Terms and Conditions;
“Material Defect” has the meaning ascribed to it in Section 9(b)
of these Terms and Conditions;
“Notice” has the meaning ascribed to it in Section 23 of these
Terms and Conditions;
“Non-Conforming Products” has the meaning ascribed to it in
Section 6(a) of these Terms and Conditions;
“Operating Requirements” means the specifications and
instructions outlined in the Owner’s Manual, together with all
applicable Standard Operating Procedures, safety protocols, and
technical guidelines established by the user’s organization,
contractors, utilities, regulatory authorities, or governing bodies.
These include, but are not limited to, all relevant industry
regulations, safety requirements, best practices, and employer-
defined standards necessary for the safe and proper use of the
Product;
“Owner’s Manual” means the Owner’s Manual included in the
Product’s packaging;
“Person” means an individual, partnership, corporation, trust,
unincorporated association, joint venture, syndicate or other
entity or Governmental Entity;
“PMSI” has the meaning ascribed to it in Section 4(a) of these
Terms and Conditions;
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“PPSA” means the Personal Property Security Act (Ontario) and
includes the PPSA equivalent in all provinces and territories in
Canada;
“Product” means the goods, raw materials, equipment,
components, services, items or other product or subcontracted
services the Buyer has agreed to purchase from the Supplier under
a Purchase Agreement;
“Purchase Agreement” means, individually and collectively, a
purchase order (PO) by Distributor or Buyer to Supplier and an
invoice by Supplier to Distributor or Buyer, in respect of Product;
“Purchase Price” means the total purchase price for Product,
exclusive of tax, as set out in the Purchase Agreement;
“Registration Date” has the meaning ascribed to it in Section
9(a) of these Terms and Conditions;
“Request” has the meaning ascribed to it in Section 22(b) of these
Terms and Conditions;
“Respondent” has the meaning ascribed to it in Section 22(b) of
these Terms and Conditions;
“Services” means the services the Supplier has agreed to provide
to the Buyer under a Purchase Agreement, including, without
limitation, the repair, training and inspection services;
“SGA” means the Sale of Goods Act (Ontario);
“Supplier Parties” means the Supplier and its related parties,
affiliates and subsidiaries and the owners, directors, officers,
trustees, employees, contractors and agents of all of the
foregoing;
“Supplier” means Footage Tools Inc.; and
“UCC” means the Uniform Commercial Code in the United
States of America.
2. Purchase Price and Payment Terms.
(a) Unless otherwise specified in the Purchase Agreement,
the Purchase Price is exclusive of all harmonized sales tax, goods
and services tax, provincial sales tax, value added tax, use and
excise taxes, and any other similar taxes, duties and charges of
any kind imposed by any Governmental Authority on any
amounts payable by the Buyer, Distributor or the End Consumer,
as may be applicable. The Buyer, Distributor or the End
Consumer, as may be applicable, shall be responsible for all such
charges, costs, and taxes; provided that, the Buyer shall not be
responsible for any taxes imposed on, or with respect to, the
Supplier’s income, revenues, gross receipts, personnel or real or
personal property or other assets.
(b) All prices published by Suppliers in its catalogs, sales
brochures or the like are "list" prices, published in Canadian
dollars for Canadian customers, in US dollars for US customers
and international customers, and subject to change without notice.
For greater certainty, a Product may not be re-sold by a Buyer,
Distributor or End Consumer for greater than the then list price,
except that certain Distributors may discount Products in
accordance with the Supplier’s then current published distributor
pricing program.
(c) If the list price for a Product is greater at the time of
delivery by Supplier than at the time of order by Buyer or
Distributor, the price for such Product shall be the list price at the
time of delivery unless Supplier, in its sole discretion, agrees
otherwise.
(d) If a Buyer or Distributor wishes to purchase a Product
using Visa or Mastercard, the Supplier may, in its sole discretion,
charge an additional surcharge in the amount and to the extent
permitted by applicable law.
(e) The Supplier is not responsible for typographical errors
in or in connection with quotes, acknowledgments, catalogs, sales
brochures, publications or invoices. All such errors are subject to
correction by the Supplier.
(f) The Supplier shall issue an invoice to the Buyer or the
Distributor, as may be applicable, pursuant to the terms set out in
the Purchase Agreement. Unless otherwise provided in the
Purchase Agreement, the Distributor’s and the Buyer’s obligation
to pay off the Purchase Price is absolute, unconditional, and not
subject to any set-off, abatement, deduction or Claim the
Distributor, Buyer or an End Consumer may have against the
Supplier, Distributor (in the case of an End Consumer) or any
Person, including, but not limited to, any manufacturer, supplier
or shipper of the Product or any Governmental Entity.
(g) Unless otherwise agreed in the Purchase Agreement,
the Purchase Price stated in the Purchase Agreement is to be paid
in full prior to the delivery of the Product. In the case of a sale of
Product to a Distributor, Distributor (not End Consumer) shall be
liable to pay the Purchase Price in full and shall not be permitted
to resell any Product until such time the Purchase Price is fully
paid.
(h) Until such time the Purchase Price for the Product is
paid in full by Distributor and Buyer, both Distributor and Buyer
shall comply with Section 4 of these Terms and Conditions and
any other applicable provision of these Terms and Conditions.
3. Delivery and Verification of the Product.
(a) The Supplier shall deliver the Product in quantities and
on the date(s) specified in the Purchase Agreement or as
otherwise agreed in writing by the parties (the “Delivery Date”).
The Distributor and the Buyer each acknowledge that the
Delivery Dates are estimates unless a fixed date for delivery has
been expressly agreed to in writing by the Supplier.
(b) Delivery of the Product may be delayed due to reasons
beyond the control of the Supplier including, but not limited to,
earthquakes, flood, war (declared or undeclared), acts of
terrorism, governmental action, quarantines, embargoes,
licensing controls, production, distribution, storage or
transportation delays (including, but not limited to, the
Distributor’s or the Buyer’s premises, or the premises which the
Distributor or the Buyer instruct the Supplier to deliver to, not
being ready for any reason to receive Product), disruptions,
stoppages or unavailability by reason of, but not limited to, the
bankruptcy or insolvency of a Person, damage to ships or planes,
or labour disputes including, but not limited to, strikes, lockouts,
sabotage and labour shortages, loss or theft of the Product, delay
in receiving instructions, materials, or authorizations from the
Distributor, Buyer, or a Governmental Entity and acts or
omissions of the Distributor or Buyer (collectively, “Delay”).
The Distributor, Buyer and End Consumer hereby release the
Supplier Parties from any and all Claims the Distributor,
Buyer and End Consumer may have against the Supplier
Parties as a result of, in respect of or arising out of any Delay.
The Distributor hereby specifically releases the Supplier
Parties from any and all Claims in connection with any claim
by an End Consumer against the Distributor as a result of, in
respect of or arising out of any Delay.
(c) In the event of a Delay, after the Delay has ended, the
Supplier shall deliver the Product in the normal course, and the
Distributor or the Buyer, as may be applicable, agrees to accept
such delivery (except where the Supplier has agreed to the return
of the Product).
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(d) The Supplier shall deliver the Product to the address
specified in the Purchase Agreement (the “Delivery Point”)
during the Buyer’s or the Distributor’s, as may be applicable,
normal business hours or as otherwise instructed by the Buyer or
the Distributor, as may be applicable. The Supplier shall pack the
Product for shipment according to the Buyer’s or the Distributor’s
instructions, as may be applicable, or, if there are no instructions,
in a manner sufficient to ensure that the Product is delivered in
undamaged condition. Where the Product cannot be delivered to
the Distributor’s or the Buyer’s premises as a result of Delay, the
Supplier may:
(i) Deliver the Product to a storage facility of its
choice (the “Facility”) and the Distributor or
the Buyer, as may be applicable, shall pay to
the Supplier, promptly after written demand
by the Supplier, the Supplier’s costs of:
(A) delivering the product to the
Facility; and
(B) storing and insuring the Product at
the Facility until such time as the
Supplier removes the Product to
deliver to the Distributor or the
Buyer pursuant to Section 3(c) of
these Terms and Conditions;
(ii) agree that the Product be returned to the
Supplier in which case the Distributor or the
Buyer shall pay to the Supplier, promptly
after written demand by the Supplier:
(A) the Supplier’s costs in connection
with such return; and
(B) the Supplier’s costs of storing and
insuring the Product at the
Supplier’s premises until such time
as the Supplier delivers the Product
to the Distributor or the Buyer
pursuant to Section 3(c) of these
Terms and Conditions; or
(iii) In some exceptional circumstances and in the
Supplier’s sole and absolute discretion, allow
a return of the Product pursuant to and in
accordance with Section 8 of these Terms and
Conditions.
(e) Supplier may, in its sole discretion, without liability or
penalty, make partial shipments of Product to the Buyer or the
Distributor, as may be applicable. Each shipment will constitute
a separate sale, and the Buyer or the Distributor, as may be
applicable, shall pay for the units shipped whether such shipment
is whole or partial fulfilment of the Buyer’s or the Distributor’s
purchase order.
(f) If for any reason the Buyer or the Distributor, as may
be applicable, fails to accept delivery of any of the Product on the
date fixed pursuant to Supplier’s notice that the Product has been
delivered at the Delivery Point, or if Supplier is unable to deliver
the Product at the Delivery Point on such date because the Buyer
or the Distributor, as may be applicable, has not provided
appropriate instructions, documents, licenses or authorizations:
(i) risk of loss to the Product shall pass to the Buyer or the
Distributor, as may be applicable; and (ii) the Product shall be
deemed to have been delivered.
(g) For greater certainty, the Supplier’s responsibilities and
liabilities are only as specifically set out in these Terms and
Conditions and the limited warranty attached to these Terms and
Conditions.
(h) All Product shall be delivered FCA (as that term is
defined in the Incoterms 2024 handbook), unless otherwise
specified in the applicable Purchase Agreement. For greater
certainty, and notwithstanding anything to the contrary or
inconsistent in these Terms and Conditions:
(i) the Supplier shall only be responsible for
export packaging;
(ii) as between the Supplier, the Buyer and the
Distributor, the Buyer and the Distributor
shall be responsible for loading charges,
delivery to port/place, export duty, taxes and
customs clearance, origin terminal charges,
loading on carriage, carriage charges,
insurance, destination terminal charges,
delivery to destination, unloading at
destination and import duty, taxes and
customs clearance;
(iii) all weights and measurements of a Product as
quoted by the Supplier or in the Supplier’s
catalogues, sales brochures or the like are
approximate weights and measurements and
the Buyer and the Distributor shall be
responsible for confirming such weights and
measurements;
(iv) delivery by the Supplier is complete when the
Supplier places the Product at the disposal of
the Buyer or the Distributor, as may be
applicable, at the Supplier’s premises or at
another named place;
(v) the Supplier does not need to load the Product
on any collecting vehicle and does not need
to clear the Product for export where such
clearance is applicable;
(vi) the Products may be combined for delivery
but the Supplier is not responsible for any
accessorial charges or extended service
charges; and
(vii) the Supplier shall not be responsible for any
Product lost in freight or other freight
disputes.
4. Ownership, Personal Property and Security Interest.
(a) Where the Supplier extends credit to the Distributor or
the Buyer for the purchase of the Product (or the Supplier agrees
to the payment of the Purchase Price in installments or the like)
pursuant to or in connection with a Purchase Agreement (an
“Extension of Credit”), the following shall apply until such time
the Purchase Price has been paid in full to the Supplier:
(i) title to, property in and ownership of the
Product shall remain with the Supplier and,
in the case of a Distributor, the Distributor
shall not sell or otherwise transfer the
Product to an End Consumer;
(ii) the Product shall remain personal or
moveable property even if the Product is in
any manner affixed or attached to real or
immoveable property;
(iii) the Distributor and the Buyer shall store, use
and keep the Product in first class working
condition and in compliance with all
applicable Laws;
(iv) the Supplier shall have a purchase money
security interest (“PMSI”) within the
meaning of the PPSA in the Product for the
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Purchase Price and the Distributor and the
Buyer shall do such things as the Supplier
requires to effect and maintain such PMSI;
(v) the Distributor and the Buyer shall:
(A) protect and defend the Supplier’s
title to the Product, as well as the
interest of the Supplier against all
Persons claiming against or
through the Distributor, Buyer or
the End Consumer; and
(B) keep the Product free and clear
from any Encumbrances. Upon the
Distributor, Buyer or the End
Consumer receiving notice of any
Encumbrance, each of them shall
immediately deliver written notice
of such Encumbrance to the
Supplier. The Supplier may
remove any Encumbrance against
the Product in which case the
Distributor or the Buyer shall
reimburse the Supplier on demand
by the Supplier for the Supplier’s
costs of removing such
Encumbrance. The Distributor and
the Buyer hereby agree to fully
indemnify and hold the Supplier
Parties (as subsequently defined)
harmless from and against any and
all Claims which may be made or
brought against the Supplier or
which the Supplier may suffer or
incur as a result of, in respect of or
arising out of any such
Encumbrance.
(vi) all of the foregoing (ii) to (v) shall be at the
expense of the Distributor and the Buyer.
(b) The Distributor and the Buyer acknowledge that a
Purchase Agreement which involves the Extension of Credit for
the Product creates a security interest and that the Purchase
Agreement is a security agreement in such case within the
meaning of the PPSA or the UCC as applicable. The Distributor,
Buyer and the Supplier acknowledge that they have not agreed to
postpone the time for attachment of such security interest created
by the Purchase Agreement. Upon demand by the Supplier, the
Distributor or Buyer shall supply the Supplier with such
information and documents and perform such acts as the Supplier
requires in order for the Supplier to perfect, and maintain the
perfection of, the security interest created by the Purchase
Agreement.
5. Quantity. If the Supplier delivers to the Buyer or the Distributor,
as may be applicable, a quantity of Product of up to five percent (5%) more
or less than the quantity set forth in the Purchase Agreement, the Buyer shall
not be entitled to object or reject the Product or any portion of them by
reason of the surplus or shortfall and shall pay for such Products the price
set forth in the Purchase Agreement.
6. Inspection and Rejection of Non-Conforming Products.
(a) The Buyer or the Distributor, as may be applicable,
shall inspect the Product within seven (7) days of receipt
(“Inspection Period”). The Buyer or the Distributor, as may be
applicable, will be deemed to have accepted the Product unless it
notifies the Supplier in writing of any Non-Conforming Products
during the Inspection Period and furnishes such written evidence
or other documentation as reasonably required by the Supplier.
“Non-Conforming Products” means only the Product shipped is
different than identified in the applicable Purchase Agreement.
(b) If the Buyer or the Distributor, as may be applicable,
timely notifies the Supplier of any Non-Conforming Products, the
Supplier shall, in its sole discretion, (i) replace such Non-
Conforming Products with conforming Products, or (ii) credit or
refund the Purchase Price for such Non-Conforming Products.
The Buyer or the Distributor, as may be applicable, shall ship, at
its expense and risk of loss, the Non-Conforming Products to the
Supplier’s facility located at 1-54 Audia Court, Vaughan, ON
L4K 3N4, unless otherwise provided by the Supplier. If the
Supplier exercises its option to replace any Non-Conforming
Products, the Supplier shall, after receiving the Buyer’s or the
Distributor’s, as may be applicable, shipment of Non-
Conforming Products, ship to the Buyer or the Distributor, as may
be applicable, at the Buyer’s expense and risk of loss, the
replacement Products to the Delivery Point.
(c) The Buyer and the Distributor acknowledge and agree
that the remedies set forth in this section are the Buyer’s and the
Distributor’s, as may be applicable, exclusive remedies for the
delivery of Non-Conforming Products. Except as provided under
Section 8, all sales of Product to the Buyer and the Distributor are
made on a one-way basis and the Buyer and the Distributor have
no right to return the Product purchased under this Agreement to
the Supplier.
7. Order Modification and Cancellation.
(a) Any alterations to the Products to be provided by the
Supplier under the Purchase Agreement must be furnished in
writing by the party requesting such alterations. Both the Buyer
or the Distributor, as may be applicable, and the Supplier will
cooperate in good faith to accommodate reasonable changes that
emerge during the execution of the order under the corresponding
Purchase Agreement. Before any such changes are implemented,
both parties must approve them to guarantee mutual agreement
and understanding of any potential impact on costs or timelines.
Any additional costs or delays resulting from the approved order
modifications will be transparently discussed between the Buyer
or the Distributor, as may be applicable, and the Supplier.
(b) The Distributor and the Buyer, as may be applicable,
shall only be entitled to cancel the Purchase Agreement by giving
written notice to the Supplier prior to the delivery process (as
determined by the Supplier, from time to time, in its sole
discretion) for the Product having begun (as determined by the
Supplier, from time to time, in its sole discretion) by the Supplier.
For greater certainty, the Distributor and the Buyer, as may be
applicable, cannot cancel the Purchase Agreement once such
delivery process for the Product has so begun by the Supplier.
8. Returns, Refunds, or Exchanges.
(a) Returns, refunds or exchanges of the Product, whether
or not the Purchase Price is paid in full, are not permitted.
(b) In some exceptional cases, the Supplier may, in its sole
and absolute discretion, allow a return of the Product in exchange
for a credit note (which credit note shall be in the amount of the
original Purchase Price for such Product less all wire transfer fees,
credit card fees and like fees incurred or to be incurred by the
Supplier in connection with the foregoing) provided that:
(i) The request to return is made within ten (10)
calendar days of the date such Product is
received by the Distributor or Buyer as
applicable by filing an RMA Request form at
https://www.footagetools.com/returns/;
(ii) the Supplier agrees to such return (for greater
certainty, a request to return shall not
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automatically constitute the Supplier’s
agreement to such return);
(iii) a restocking fee of twenty-five percent (25%)
of the Purchase Price of the Product is paid
by the Distributor or the Buyer, as applicable;
(iv) The Product is unused, in first-class working
condition, and has no marks, scratches, or
similar damage (all as reasonably determined
by the Supplier); and
(v) The Product is packaged and returned as per
the conditions provided at:
https://www.footagetools.com/returns/.
9. WARRANTY
(a) Product Registration Required for Limited Warranty
(i) A Product is required to be registered by the
Buyer or an End Consumer, as applicable,
with the Supplier via the Supplier’s
registration portal in order for the limited
warranty in Section 9(b) of these Terms and
Conditions (the “Limited Warranty”) to
apply to such Product.
(ii) In the case of the Buyer, a Product must be
registered at
https://www.footagetools.com/warranty-
registration/, with such web address subject
to change from time to time, within 30
calendar days of the date such Product was
delivered to the Buyer. Failure to register
within this period may limit warranty
coverage, but the Buyer may still claim
warranty protection by providing satisfactory
proof of purchase date and authenticity of the
Product. The Supplier may, at its sole
discretion, provide extended warranty
coverage for registered Products.
(iii) In the case of an End Consumer, a Product
shall be registered at
https://www.footagetools.com/warranty-
registration/, with such web address subject
to change from time to time, within 30
calendar days of the date such Product was
delivered to the End Consumer by the
Distributor, and the End Consumer shall,
concurrently with such registration, deliver
to the Supplier written confirmation
(satisfactory to the Supplier acting
reasonably) of the date such Product was
delivered to the End Consumer (failing which
the Limited Warranty shall not apply to such
Product).
(iv) The day the Product is registered is referred
to in these Terms and Conditions as the
“Registration Date”.
(b) Limited Warranty
(i) Subject to this Section 9(b), the Supplier
warrants that each Product that has been
registered in accordance with Section 9(a)
of these Terms and Conditions shall be free
from defects in materials and
workmanship (a “Material Defect”) for a
period of three (3) years from the date the
Product is purchased from the Supplier,
unless otherwise provided in the Purchase
Agreement or Owner’s Manual (the
“Limited Warranty Period”).
(ii) The Limited Warranty shall end
automatically with the expiry of the
Limited Warranty Period. For greater
certainty, except for a claim under the
Limited Warranty that was made prior to
the expiry of the Limited Warranty Period
(and such claim was made in accordance
with Section 9 of these Terms and
Conditions), the Buyer, the Distributor
and the End Consumer shall not be
entitled to make a claim under or seek
recourse under the Limited Warranty.
(iii) Only the Supplier may amend, modify or
extend the Limited Warranty or the
Limited Warrant Period. The Limited
Warranty Period will not be extended due
to non-use of a Product because of repair
or examination of a Product.
(iv) The Limited Warranty covers Material
Defects only. The failure of or problem
with a Product that is not directly related
to a Material Defect is not covered by the
Limited Warranty. Also not covered by
the Limited Warranty is: (1) damage,
defects, deterioration, wear, error, failure
or the like (collectively “Damage”) caused
by normal wear and tear; (2) Damage
caused during shipment (either from the
Supplier to the Distributor or the Buyer or
from the Distributor to the End
Consumer), storage, handling or
installation of the Product; (3) labour costs
related to the installation, removal and/or
relocation of the Product, as well as any
related costs; (4) replacement of parts due
to normal wear and tear; (5) Damage due
to failing to maintain the Product on a
regular or consistent basis; (6) Damage
due to abuse, misuse, improper use or
improper storage; (7) Damage due to force
majeure, accident, error or negligence; (8)
costs for labour, gaining access, removal,
installation, temporary power or
equipment, or any other expenses, which
may be incurred in connection with
repair; and (9) Damage due to the non-
compliance with the Product’s Operating
Requirements. Whether or not any of the
foregoing has occurred shall be
determined in the Supplier’s sole
discretion and the Buyer, the Distributor
and the End Consumer (as applicable)
shall provide all such information,
pictures, videos, or other documentation
as reasonably requested by the Supplier,
from time to time, in connection with the
Supplier’s determination.
(v) The Limited Warranty is automatically
null and void if: (1) the Product is not used
in conformance with the Product
specifications, including without
limitation the Operating Requirements,
provided by the Supplier or not used in
accordance with the Product’s intended
use; (2) if the Product is improperly
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installed; (3) any service, modification,
repair, alteration, customization,
dismantling or reconstruction is done by a
Person not specifically authorized by the
Supplier; (4) the Product is used with
accessories, other products, equipment or
peripheral substances or with auxiliary
equipment not expressly authorized or
approved by written notice from the
Supplier; (5) the Product has continued to
be used despite that a fault, malfunction or
other problem affecting its performance
was found; (6) the Product has been
subjected to conditions that exceed the
recommended specifications; (7) any part
of the Product has been removed,
modified, altered, or replaced by a Person
not specifically authorized by the
Supplier; or (8) any tools, equipment, or
methods specifically identified in the
Operating Requirements as prohibited or
to be avoided are used with the Product.
Whether or not any of the foregoing has
occurred shall be in the Supplier’s sole
discretion and the Buyer, the Distributor
and the End Consumer (as applicable)
shall provide all such information,
pictures, videos or otherwise as requested
by the Supplier, from time to time, in
connection with the Supplier’s
determination.
(vi) The Limited Warranty shall not apply to
samples or prototypes of a Product.
Samples and prototypes are provided “as
is” and the Supplier has no liability or
responsibility whatsoever for any defects
in materials, workmanship or otherwise or
any uses or decisions made by the
Distributor, Buyer or End Consumer with
or in reliance upon any samples or
prototypes. No warranties of any kind
(express, implied, statutory, or otherwise)
are made in connection with samples or
prototypes except as may be set out in the
CPA or the SGA.
(c) Non-Transferable
(i) The Limited Warranty is non-
transferable.
(d) Disclaimer
(i) The Supplier hereby expressly disclaims,
to the maximum extent permitted by law,
all other warranties, express, implied,
statutory, or otherwise, including any
implied warranty of merchantability and
any implied warranty of fitness, except as
otherwise required under the SGA and the
CPA. If the Buyer, Distributor or End
Consumer has examined a Product, there
is no implied condition under the SGA as
regards defects that such examination
ought to have revealed.
(ii) The Supplier assumes no liability for
direct, indirect, incidental or
consequential damages of any kind,
including, but not limited to such damages
arising from the Buyer or End Consumer’s
failure to adhere to the Operating
Requirements while operating the
Product.
(e) Claims under the Limited Warranty
(i) If a Material Defect occurs during the
Limited Warranty Period, the Buyer,
Distributor or End Consumer, as
applicable, must notify the Supplier in
writing within seven (7) days of such
occurrence and during the Limited
Warranty Period. Such written notice
must be
submitted at
https://www.footagetools.com/returns/,
with such web address subject to change
from time to time, and must identify the
Product and the Material Defect and
include colour photographs or videos of
the Material Defect and information
regarding the circumstances involving the
Material Defect. For greater certainty, the
Limited Warranty shall not cover (1) a
Material Defect that occurred after the
expiry of the Limited Warranty Period
and (2) a Material Defect that occurred
during the Limited Warranty Period but
such written notice was sent after the
expiry of the Limited Warranty Period.
(ii) If the Material Defect is an eligible claim
under the Limited Warranty under
Section 9 of these Terms and Conditions,
the Supplier may, in its sole discretion,
service, repair or perform maintenance on
the Product (if the Product, in the sole
discretion of the Supplier, does not need to
be replaced) in which case the Buyer,
Distributor or End Consumer must
contact the Supplier to arrange for a
technician authorized by the Supplier to
perform such service, repair or
maintenance. The Supplier, Distributor or
End Consumer, as applicable, shall be
solely responsible for all costs of and
related to such service, repair and
maintenance unless covered by the
Limited Warranty.
(iii) If the Material Defect is an eligible claim
under the Limited Warranty under
Section 9 of these Terms and Conditions
and the Supplier, in its sole discretion,
agrees that such service, repair or
maintenance is not sufficient, the Supplier,
in its sole discretion, shall either (1) replace
all parts of the Product that is required (in
the Supplier’s sole discretion) to fix the
Material Defect or (2) replace the Product
with a new Product.
(iv) In the case of (1) under section (iii) above:
(A) the cost of replacement parts
shall be covered by the Limited
Warranty;
(B) the cost to install replacement
parts shall be the sole
responsibility of the Buyer,
Distributor or End Consumer, as
applicable, and such costs are
7
not covered by the Limited
Warranty.
(v) In the case of (2) under section (iii) above,
the cost to install a replacement Product at
the premises of a Buyer, Distributor or
End Consumer, as applicable, shall be the
sole responsibility of the Buyer,
Distributor or End Consumer.
(vi) In the case of either (1) or (2) under section
(iii) above:
(A) the Buyer, Distributor or End
Consumer, as applicable, shall
first deliver the Product to the
Supplier; and
(B) the Supplier shall pay for such
delivery costs and shall be
responsible to insure the Product
against risk of loss or damage to
the Product during such
delivery.
10. General Indemnification. Buyer and Distributor shall indemnify
Supplier from, and defend and hold Supplier harmless from and against,
any losses suffered, incurred or sustained by the Supplier or to which the
Supplier becomes subject, resulting from, arising out of or relating to any
claim: (i) that the Products infringe upon the proprietary or other rights of
any third party (except as may have been caused by a modification by the
Supplier); and (ii) of loss or damage resulting from the Product and the use
thereof.
11. Limitation of Liability.
(a) In no event shall the Supplier Parties be liable for:
(i) any Claims (including arising from, in
connection with, pursuant to or a result of
usage error or lack of maintenance by the
Buyer, the Distributor or the End Consumer)
except under the warranties set out in Section
9 of these Terms and Conditions; or
(ii) punitive, aggravated, economic, loss of
profit, exemplary, indirect, incidental,
special, accidental or consequential Claims;
and, in each of (a) and (b), whether foreseeable or
unforeseeable, including, without limitation, in respect
of Claims relating to loss of life, injury, Product
certification, loss of production, material, time or
labour, loss of use of a vehicle or equipment or any loss,
commercial or otherwise, that may result from, or arise
from, or are in connection with any Product, including
the use or misuse, delivery, installation, supply, repair,
replacement, use, resale or storage of any defect or
malfunction or the like of any Product.
(b) If a court with jurisdiction finds the Supplier liable for
a Claim contrary to this Section 11, such liability of the Supplier
shall be limited to the lesser of: (i) the Purchase Price paid for
the Product in question; or (ii) the replacement cost of the
Product, except where such limitation is prohibited by law,
including in cases of death, personal injury, fraud, or gross
negligence.
12. Indemnification by Distributor Re: End Consumer. The
Distributor agrees to fully indemnify, defend, and hold the Supplier Parties
harmless from and against any and all Claims which may be made or
brought against the Supplier Parties by a Distributor’s End Consumer or
which the Supplier Parties may suffer or incur due to a Distributor’s End
Consumer as a result of, in respect of or arising out of anything referred to
in Section 11 of these Terms and Conditions.
13. Compliance with Law. The Buyer or Distributor, as may be
applicable, is in compliance with and shall comply with all applicable laws,
regulations, and ordinances. The Buyer or Distributor, as may be applicable,
shall maintain in effect all the licences, permissions, authorizations,
consents, and permits that it needs to carry out its obligations under the
corresponding Purchase Agreement and these Terms and Conditions. The
Buyer or Distributor, as may be applicable, shall comply with all export and
import laws of all countries involved in the sale of the Products under the
relevant Purchase Agreement and these Terms and Conditions or any resale
of the Products. The Buyer or Distributor, as may be applicable, assumes
all responsibility for shipments of the Products requiring any government
import clearance. The Supplier may terminate the Purchase Agreement if
any Governmental Entity imposes antidumping or countervailing or any
retaliatory duties or any other penalties on Products.
14. Termination. In addition to any remedies that may be provided
under these Terms and Conditions, the Supplier may terminate the Purchase
Agreement with immediate effect upon written notice to the Buyer or the
Distributor, as may be applicable, if the Buyer or the Distributor, as may be
applicable: (i) fails to pay any amount when due under the Purchase
Agreement; (ii) has not otherwise performed or complied with any of these
terms, in whole or in part; or (iii) becomes insolvent, files a petition for
bankruptcy or commences or has commenced against it proceedings
relating to bankruptcy, receivership, reorganization or assignment for the
benefit of creditors.
15. Paramountcy. In the event of any conflict between the provisions
of these Terms and Conditions and the provisions of the Purchase
Agreement, the provisions of the Purchase Agreement shall prevail.
16. Waiver. No waiver by the Supplier of any provision of these
Terms and Conditions shall be deemed to constitute a waiver of any other
provision, whether or not similar, nor shall such waiver constitute a
continuing waiver unless otherwise expressly provided. No forbearance by
any party to seek a remedy for any breach by any other party shall constitute
a waiver of any rights or remedies with respect to any subsequent breach.
17. Confidential Information. All non-public, confidential, or
proprietary information of the Supplier, including but not limited to,
technical specifications, samples, patterns, designs, plans, drawings,
documents, data, business operations, business plans, customer lists,
pricing, discounts, or rebates, disclosed by the Supplier to the Buyer or the
Distributor, as may be applicable, whether disclosed orally or disclosed or
accessed in written, electronic or other form or media, and whether or not
marked, designated, or otherwise identified as “confidential” in connection
with the Purchase Agreement is confidential, solely for the purpose of
performing the Purchase Agreement and may not be disclosed or copied
unless authorized in advance by the Supplier in writing. Upon the Supplier’s
request, the Buyer or the Distributor, as may be applicable, shall promptly
return all documents and other materials received from the Supplier. The
Supplier shall be entitled to injunctive relief for any violation of this Section
17. This Section 17 does not apply to information that is: (a) in the public
domain; (b) known to the Buyer or the Distributor, as may be applicable, at
the time of disclosure; or (c) rightfully obtained by the Buyer or the
Distributor, as may be applicable, on a non-confidential basis from a third
party.
18. Assignment. Neither the Purchase Agreement, these Terms and
Conditions nor any rights or obligations of the Buyer or the Distributor, as
may be applicable, may be assigned without the prior written consent of the
Supplier. Any purported assignment or delegation in violation of this
section is null and void. The Supplier may, at any time and without the
consent of the Buyer or the Distributor, as may be applicable, assign the
Purchase Agreement, these Terms and Conditions and its rights or
obligations.
19. Relationship of the Parties. The relationship between the Supplier
and the Buyer or Distributor, as applicable, is that of independent
contractors. Nothing contained in these Terms and Conditions and the
Purchase Agreement shall be construed as creating any agency, partnership,
joint venture, or other form of joint enterprise, employment, or fiduciary
relationship between the parties, and neither party shall have authority to
8
contract for or bind the other party in any manner whatsoever. No
relationship of exclusivity shall be construed from these Terms and
Conditions and the Purchase Agreement.
20. No Third-Party Beneficiaries. The Purchase Agreement and these
Terms and Conditions are for the sole benefit of the parties hereto and their
respective successors and permitted assigns and nothing herein, express or
implied, is intended to or shall confer upon any other Person any legal or
equitable right, benefit, or remedy of any nature whatsoever under or by
reason of these Terms and Conditions and the Purchase Agreement.
21. Governing Law. These Terms and Conditions shall be construed
in accordance with the laws of the Province of Ontario and the laws of
Canada applicable in the Province of Ontario and shall be treated in all
respects as an Ontario contract. Each of the parties irrevocably attorns to
the jurisdiction of the courts of the Province of Ontario.
22. Dispute Resolution.
(a) In the event of the dispute, any controversy,
disagreement, or claim arising out of, relating to or in connection
with the Purchase Agreement or these Terms and Conditions or
any breach thereof, including any questions regarding its
existence, validity, or termination (collectively, the “Dispute”),
shall be first attempted to be resolved by the parties hereto in
informal good-faith negotiations. In the event that these
information negotiations do not result in a resolution of such
Dispute, the parties hereto agree to conclusively resolve such
Dispute by arbitration under the Rules of the ADR Institute of
Canada.
(b) The arbitration shall be conducted by one arbitrator.
The party initiating arbitration (the “Claimant”) shall suggest an
arbitrator in its request for arbitration (a “Request”). The other
party or parties (the “Respondent”) shall, within fifteen (15) days
of receipt of the Request, accept such arbitrator or suggest an
alternative arbitrator and shall notify the Claimant in writing of
the name of such Person. If the Respondent accepts the suggested
arbitrator or fails to submit the name of an arbitrator within such
15-day period, the arbitrator named in the Request shall decide
the Dispute as the sole arbitrator. Otherwise, following such 15-
day period, the parties involved in the Dispute shall have a further
15-day period to mutually agree upon a sole arbitrator, following
which, either of the parties involved in the Dispute may apply to
have a Judge of the Ontario Superior Court of Justice appoint a
sole arbitrator.
(c) The arbitration award shall be in writing and shall be
final and binding on the parties. The award may include an award
of costs, including reasonable solicitor's fees, disbursements and
charges. Judgment upon award may be entered by any court
having jurisdiction thereof or having jurisdiction over the parties
or their assets.
23. Notices. Each party shall deliver all notices, requests, consents,
claims, demands, waivers and other communications under the Purchase
Agreement or these Terms and Conditions (other than routine
communications having no legal effect) (each, a “Notice”) in writing and
addressed to the parties at the addresses set forth in the Purchase Agreement
(or to such other address that may be designated by the receiving party from
time to time in accordance with this Section 23). Notices sent in accordance
with this Section 23 will be conclusively deemed validly and effectively
given: (a) on the date of receipt, if delivered by personal delivery, or by a
nationally recognized same day or overnight courier (with all fees prepaid);
(b) upon the sender’s receipt of an acknowledgment from the intended
recipient (such as by the “read receipt” function, as available, return email
or other form of written acknowledgment), if delivered by email of a PDF
document; (c) when sent, if sent by facsimile (with confirmation of
transmission) on the date of transmission if a business day or if not a
business day or after 5:00 p.m. on the date of transmission, on the next
following business day; or (d) on the third business day after the date mailed
by certified or registered mail by the Canada Post Corporation, return
receipt requested, postage prepaid.
24. Severability. If any term or provision of these Terms and
Conditions is invalid, illegal, or unenforceable in any jurisdiction, such
invalidity, illegality, or unenforceability shall not affect any other term or
provision of these Terms and Conditions or invalidate or render
unenforceable such term or provision in any other jurisdiction.
25. Survival. Provisions of these Terms and Conditions which by
their nature should apply beyond their terms will remain in force after any
termination or expiration of the applicable Purchase Agreement and these
Terms and Conditions.
26. Time. Time shall be of the essence and no extension or variation
of these Terms and Conditions shall operate as a waiver of this provision.
27. Calculation of Time. When calculating the period of time within
which or following which any act is to be done or step taken pursuant to the
Purchase Agreement or these Terms and Conditions, the date which is the
reference date in calculating such periods shall be excluded.
28. Entire Agreement. These Terms and Conditions, the Owner’s
Manual and the applicable Purchase Agreement constitute the entire
agreement between the parties pertaining to the subject matter of these
Terms and Conditions and supersedes all prior agreements and discussions,
whether oral or written, of the parties. There are no representations,
warranties or other agreements, whether oral or written, between the parties
in connection with the subject matter of these Terms and Conditions except
as specifically set out in these Terms and Conditions. The Buyer and the
Distributor, as applicable, acknowledge that they have received, read, and
understood these Terms and Conditions and have had the opportunity to
seek independent legal advice prior to entering into the Agreement.
29. Binding Effect. These Terms and Conditions shall enure to the
benefit of and shall be binding upon the parties and their respective
successors, permitted assigns, heirs, executors and administrators.
30. Amendments and Modifications. No amendment, supplement,
modification, waiver, or termination of these Terms and Conditions shall be
binding unless made in writing and signed by authorized representatives of
both parties. No waiver of any breach or default shall constitute a waiver of
any other breach or default, whether of the same or any other provision. No
delay or omission by either party in exercising any right or remedy shall
operate as a waiver thereof or of any other right or remedy.
