The following are the terms and conditions upon which Cubresa Inc. (“Cubresa”) shall sell the products noted in the attached purchase contract to you (“Customer”):
1. GENERAL TERMS
1.1. All products are furnished only on the terms and conditions stated herein.
1.2. Customer’s terms and conditions in any order documentation pre-printed or otherwise, shall not apply.
1.3. Cubresa’s acceptance of the Customer’s order is expressly conditioned on the Customer’s assent to the terms set forth in this document. Cubresa agrees to furnish the goods and services ordered by the Customer only on these terms, and the Customer’s acceptance of any portion of the goods and services covered by this document shall confirm their acceptance by the Customer.
1.4 These terms may only be revised or amended by a written agreement signed by an authorized representative of both parties.
2. QUOTATIONS / OFFERS
2.1. Cubresa’s quotations are non-binding and constitute solicitations for offers to purchase only.
2.2. Cubresa agrees to be bound by the quoted prices for a period of sixty (60) days.
3.1 Product Prices are exclusive of taxes and Customer shall pay applicable sales, use, service, value added or like taxes, unless Customer has provided Cubresa with an appropriate exemption certificate for the delivery destination acceptable to the applicable taxing authorities.
3.2 Insurance, freight, taxes and other charges are not included and will be additionally charged to Customer, unless otherwise stated in Cubresa’s order confirmation.
4. DATE OF DELIVERY / PARTIAL DELIVERY
4.1. The products shall be delivered within four (4) months from receipt by Customer of Cubresa’s final order confirmation or at an agreed date. Any specific date of delivery agreed to by Cubresa is approximate only and is based on conditions at the time of the agreement. Notwithstanding the following provisions, Cubresa may postpone the specified date if circumstances require, as determined by Cubresa, in its sole discretion.
4.2. Neither party shall be liable for delays in performance due to Act of God, strike, or due to unforeseen circumstances that prevent delivery of the products. The same applies if the delay occurs at Cubresa’s suppliers or their sub suppliers. In these cases, Cubresa shall be entitled to postpone delivery for the duration of the obstruction and an additional appropriate time to resume performance and/or to make partial shipments. In
case of permanent obstructions, Cubresa shall also have the right to cancel the contract in part or in whole.
4.3. If the date of delivery is postponed by Customer or if timely delivery is made impossible by reasons within the responsibility of Customer, including but not limited to the provision by Customer of technical assistance, correct and complete information and data, Cubresa may, at its reasonable discretion, ship the purchased goods to storage or, if shipment is already in progress, also revert shipment to Cubresa’s premises. Any additional costs caused thereby will be charged to Customer.
4.4. In case of permanent obstructions, Cubresa shall also have the right to cancel the contract in part or in whole. Cubresa will promptly inform Customer about the obstructions and, in the event of cancellation of the purchase contract, will reimburse Customer any payments already made for unavailable parts.
4.5. If the obstructions last for a period of more than six months, Customer may cancel the purchase contract with respect to the unavailable parts after setting a reasonable final term for delivery. Customer may cancel the entire contract only if Customer cannot be reasonably expected to have an interest in partial delivery without the unavailable parts.
4.6. Meeting the scheduled delivery and/or installation dates is contingent upon Customer providing proper and reasonable cooperation in a timely manner, including but not limited to site preparation and the provision of technical support, precise and complete data, and information on all aspects related to the delivery and installation of the products, etc.
4.7. If the date of delivery is postponed by Customer or if delivery or the installation start is delayed for reasons within the responsibility of Customer, Cubresa may, at its reasonable discretion, ship the purchased goods to storage or, if shipment is already in progress, also revert shipment to Cubresa’s premises. Any additional costs caused thereby will be borne by Customer, including but not limited to transport and/or storage related charges including insurance. At the reasonable discretion of Cubresa, Customer shall provide an adequate warehouse with appropriate storage environment (e.g. climate controlled and insured). Cubresa reserves the right to claim further damages.
5. TERMS OF PAYMENT
5.1. For total amounts exceeding $15,000.00 (or an equivalent amount in any other currency) incl. sales tax, terms of payment are as follows:
* 60% net of total within 3 days from receipt by Customer of Cubresa’s final order confirmation
* 30% net of total within 10 days from date of delivery
* 10% net of total within 10 days from date of acceptance of the product.
Payments of $15,000.00 (or an equivalent amount in any other currency) incl. sales tax or lower shall be due and payable in full within 14 days from date of invoice.
5.2. In case shipment or delivery is delayed due to circumstances caused by or within the responsibility of Customer, delivery shall be deemed performed 30 days after Cubresa reports ability to deliver. Customer shall be responsible for any and all additional costs caused by the delay.
5.3. In case of a delay of acceptance due to circumstances caused by or within the responsibility of Customer, payment due upon acceptance of the product shall be due and payable in full
– (1) six months after delivery
– (2) upon acceptance,
whichever occurs first. 4.2. above shall apply mutatis mutandis.
5.4. Customer agrees to provide all information reasonably requested by Cubresa to carry out credit approval.
5.5. Cubresa shall be entitled to charge interest at the rate of 10% per annum on any payments that are not received when due. Cubresa reserves the right to claim damage compensation in connection with Customer failing to fulfill its obligations under this purchase contract.
5.6. In case of partial delivery by Cubresa, Customer shall pay an appropriate part of the amount due (for example, if one or more separable components remain to be delivered), Customer shall pay the amount due for all components that have been delivered. The amount due shall be paid in full if the components that have not been delivered are only of minor value and do not affect the product’s suitability for safe clinical use.
5.7. Customer shall not have the right to offset any claims without the express consent by Cubresa.
6. TRANSPORTATION AND RISK OF LOSS
6.1. Cubresa may insure the purchased goods at Customer’s expense. Appropriate means of transportation to Customer’s site will be chosen by Cubresa. Upon mutual agreement, Customer may arrange their
own means of transportation, insurance, and payment of all import duties and fees.
6.2. Title and Risk of loss to the products shall pass upon delivery from the offices of Cubresa. Cubresa shall retain a security interest and right of possession in the products until Customer makes full payment.
7. INSTALLATION / ACCEPTANCE / ACCEPTANCE PROTOCOL
7.1. Installation will be performed by a Cubresa Service Engineer. Installation will generally require no more than one visit of a Cubresa engineer.
7.2. If completion of the installation is delayed for more than six (6) months after delivery due to circumstances caused by or within the responsibility of Customer, including but not limited to false or incomplete technical information regarding Customer’s equipment or premises, or incorrect or missing data, Customer shall be charged any and all additional costs resulting from such delay. In addition, Cubresa shall no longer be obligated to perform the installation.
7.3. If a Cubresa Service Engineer is required to attend the site more than once, or in case Cubresa has notified Customer of modified requirements, is required to attend the site more than the scheduled amount necessary due to circumstances caused by or in the responsibility of Customer, Customer shall bear the additional costs.
7.4. After complete installation and prior to final acceptance, one of Cubresa’s Service Engineers will test the system to assure its capability of functioning according to the specifications. At least one representative of Customer shall be present during this procedure. Customer shall examine the product in the presence of a Cubresa Service Engineer during the acceptance test. Any defect or missing part shall be listed in the acceptance protocol.
7.5. After successful performance of the acceptance test, Customer shall accept the product and sign Cubresa’s acceptance protocol to verify acceptance. Customer agrees that signature of a responsible party shall be legally binding on Customer. The acceptance protocol shall become part of the contract. It shall be provided to Customer prior to installation upon request.
7.6. Acceptance shall not be refused because of minor problems that do not affect the suitability for safe product use.
8.1. Included in the sale price are the number of training sessions / on-site assistance as determined by Customer’s purchase order and Cubresa’s final order confirmation.
8.2. Any additional training sessions / on-site assistance requested by Customer will be charged to Customer according to Cubresa’s current price list.
9.1. Cubresa warrants that the goods manufactured and/or sold hereunder by Cubresa are free from defects in material and workmanship under normal use and in substantial compliance with operational features of Cubresa’s
published specifications at the time of sale. The warranty period shall be one (1) year beginning (i) six (6) months after delivery, (ii) three (3) months after installation, (iii) acceptance of the purchased goods, or (iv) first customer use, whichever occurs first.
9.2. Cubresa will, at its own discretion, repair or replace defective parts. Repair or replacement parts may be new, used or refurbished. Parts replaced shall, at Cubresa’s discretion, become Cubresa’s property.
9.3. During the warranty period, Customer may request up to ten (10) hours of engineer’s overtime work for service visits. Any additional working hour or fraction thereof outside normal working hours requested by Customer will be charged to Customer according to Cubresa’s latest price list.
9.4. The quality of the product is to be measured exclusively by the given specifications which also form a part of the contract.
9.5. In the interest of conservation of scarce materials, products may contain remanufactured parts. Such parts are subject to the same high standards of quality control applied to other parts and are covered by this warranty.
9.6. Any warranty or liability is excluded with respect to malfunction caused by general wear, accident, abuse, misuse, alteration, neglect, failure to use Cubresa systems under normal or specified operating conditions and
environment, lack of routine care or maintenance or the like.
9.7. Notwithstanding section 9.10. below, spare parts are subject to the same warranty as new products for a period of ninety (90) days from delivery to Customer.
9.8. THIS LIMITED WARRANTY IS EXPRESSLY IN LIEU OF AND EXPRESSLY EXCLUDES ALL OTHER EXPRESS OR IMPLIED WARRANTIES INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE, COMMERICAL PRACTICE, USE, OR APPLICATION.
9.9. Notwithstanding anything to the contrary contained herein, Cubresa does not warrant that the Software (as hereinafter defined) provided with the products will be error-free or bug-free or that the use of such software will be uninterrupted. In addition, except as otherwise stated herein, the Software is provided without any additional warranties.
9.10. In-warranty repair or replacement parts are warranted for the unexpired portion of the original warranty period.
10. LIMITATIONS OF LIABILITY
10.1. The total liability of Cubresa shall not exceed any payment received for the respective Cubresa product contributing to the loss or damage claimed. The foregoing shall apply to any and all claims, including but not limited to tort claims.
10.2. Cubresa (and its affiliates) shall not be liable for any loss of use, revenue or anticipated profits, loss of business, loss of stored or transmitted data, interruption of service, or for indirect, incidental, unforeseen, special, punitive or consequential damages arising out of or in connection with this agreement or the sale or use of Cubresa’s products, whether in any action in warranty, contract, tort (including without limitation, negligence or strict liability) arising out of or in any connection with the use of, of the inability to use, the products.
10.3. In no event shall Cubresa’s liability hereunder exceed the actual loss or damage sustained by Customer.
10.4. Cubresa shall not be liable for any damage caused by (i) the use of purchased goods before performance of the acceptance test according to clause 6.4. above; (ii) the use, operation, service, modification of Cubresa
products contrary to relevant manuals, written warnings, automated warnings, or instructions of Cubresa personnel; (iii) the use of Cubresa products in conjunction with third party products, unless this use has been expressly authorized in writing by Cubresa; and (iv) the use of any product supplied by Cubresa as a convenience to Customer that is not manufactured by Cubresa and is not generally offered by Cubresa.
10.5. With respect to bodily injury or death to third parties, Cubresa’s liability shall be restricted to an equitable proportion as reflects its relative fault in relation to Customer’s contribution to the injury or death of the third party subject to the general limitation set out in clause 10.1 above.
10.6. Customer agrees to defend, indemnify and hold harmless Cubresa from and against any and all liabilities, judgments, awards, settlements, losses, damages and expenses in connection with any third party claim, suit, or other action arising from (i) the negligence and willful misconduct of the Customer or its directors, officers, or employees; (ii) use of the Cubresa products prior to completion of the applicable acceptance by anyone other than Cubresa personnel; (iii) use, operation, service, modification of the Cubresa products contrary to relevant manuals, written warnings, automated warnings, or instructions by Cubresa personnel; (iv) use of the Cubresa products in
conjunction with third party products, unless the use has been expressly authorized in writing by Cubresa; or (v) use of any product supplied by Cubresa as a convenience to Customer and that is not manufactured by
Cubresa and is not generally offered by Cubresa.
11. SECURITY INTEREST
11.1. As security for payment of the purchase price (including all applicable taxes), Customer hereby grants to Cubresa a purchase money security interest (as defined in The Personal Property Security Act (Manitoba)) in the products noted in this purchase contract in favour of Cubresa and in all proceeds thereof, accretions thereto and substitutions therefor including, without limitation, all cash and non-cash proceeds of, and all present and future accounts, accounts receivable and chattel paper, arising from, relating to or connected with any and all of the products received upon the sale, lease, exchange, collection, loss or other disposition of same, and, to the extent not otherwise included, all payments under insurance (whether or not Cubresa is the loss payee thereon).
11.2. If any third parties take steps to levy execution upon or otherwise dispose of the assets of Customer, Customer shall immediately notify Cubresa and coordinate delivery of the product to Cubresa in substantially the same condition as it was provided to Customer by Cubresa (reasonable wear and tear accepted). If Customer fails to notify Cubresa and coordinate delivery as aforesaid, Customer will be held liable for any damages caused to Cubresa including any costs associated with the enforcement of its purchase money security interest in the products.
12. EXPORT CONTROL
12.1. Cubresa shall not be liable for (i) any delay in delivery or (ii) any inability to deliver that is due to export restrictions. In this case, Cubresa may cancel the contract and shall not be liable for any damages arising out of or in connection with such cancellation.
13. INTELLECTUAL PROPERTY, LICENSES
13.1. All rights to patents, trademarks, and any other intellectual property shall remain the property of Cubresa, its affiliates and/or its licensors, as applicable. The Software provided by Cubresa is licensed to the Customer, and not sold. Cubresa and/or its affiliates, suppliers and/or licensors presently owns and will continue to own all right, title, and interest in and to the Software and its source code, and any and all copyrights, trademarks, trade names, logos and other proprietary rights in and to the Software and any other materials provided to or otherwise made available to Customer hereunder, and all worldwide intellectual property rights embodied herein.
13.2. Cubresa grants Customer a non-exclusive, non-transferable, fully paid-up license for any software delivered with or integrated in the Cubresa products (the “Software”), solely for the use in conjunction with the Cubresa
products and in accordance with its intended use.
13.3. Customer hereby accepts any further license conditions for the Software that may be required by third party manufacturers or licensors in so far as such conditions are commonly used or reasonably acceptable to Customer. Cubresa will make such additional license conditions available to Customer upon request.
13.4. All title and interest to the Software provided to Customer shall remain with Cubresa, its affiliates and/or its licensors, as applicable. Customer shall not copy, modify or reverse engineer Software and shall prevent third party access to the Software.
13.5. Customer’s rights with respect to the Software are limited to those expressly granted in this Agreement. Cubresa reserves all rights and licenses in and to the Software not expressly granted to Customer under this
Agreement. There are no implied licenses or other rights granted to Customer by this Agreement.
14. CONFIDENTIALITY, DATA PROTECTION
14.1. Cubresa shall treat all confidential Customer information with strict confidentiality.
14.2. Customer shall keep in confidence all information, including but not limited to technical data, product descriptions, and any other information which is readily and reasonably identifiable as confidential based on its nature and/or the circumstances of its disclosure. For clarification only, this shall include information provided verbally. Such information shall not be disclosed to any third parties or employees, except for employees who are directly involved in the operation of the purchased products.
15. APPLICABLE LAW / ARBITRATION / PARTIAL INVALIDITY
15.1. The sale and these Terms and Conditions will be governed by the laws of the Province of Manitoba.
15.2. Any dispute shall be heard and determined by one arbitrator, unless any party’s claim exceeds $1,000,000, exclusive of interest and attorneys’ fees, in which case the dispute shall be heard and determined by three arbitrators.
15.3. Language of the arbitration shall be English.
15.4. The arbitration tribunal shall not award punitive damages.
15.5. The arbitration shall be final and binding, shall be the sole and exclusive remedy regarding any and all claims and counterclaims presented, and may not be reviewed by or appealed to any court except for enforcement of the final and binding arbitration determination.
15.6. Each party shall bear its own costs and expenses and an equal share of the cost of the arbitrator(s) and administrative fees of the arbitration.
15.7. Nothing in this agreement shall prevent Cubresa from seeking injunctive relief or other legal remedy to prevent unauthorized copying, disclosure, use, retention, or distribution of Cubresa’s intellectual property.
15.8. Cubresa shall have the exclusive right to bring legal action for failure to pay for products and services furnished in the courts of Cubresa’s headquarters.
15.9. If any part of the terms and conditions is held void or unenforceable, such part will be treated as separable, leaving valid the remainder of these terms and conditions. Any such invalid clause will be replaced by the valid clause that generally comes closest to the commercial intention of the invalid clause.
Terms and Conditions of Service
The following are the terms and conditions upon which Cubresa Inc. (“Cubresa”) shall provided the services noted in the attached purchase contract to you (“Customer”):
1. GENERAL TERMS
1.1. All services performed by Cubresa are subject to these Standard Terms and Conditions of Service. Any standard terms and conditions used by Customer shall be of no force and effect as to the services to be performed by Cubresa for Customer.
1.2. If and to the extent that a conflict arises between these Standard Terms and Conditions of Service and Cubresa’s Standard Terms and Conditions of Sale, these Standard Terms and Conditions of Service shall prevail.
2. SCOPE AND DEFINITION
2.1. Service will be provided for platforms and applications set forth in a separate service agreement or order confirmation (“Agreement”). “Effective Date” shall mean effective date of the separate service agreement or date of order confirmation, which ever applies.
2.2. Within the scope of the Agreement, Cubresa shall provide the following services to Customer:
a) Hotline: Cubresa offers a telephone support hotline accessible during normal business hours, Monday through Friday, 7:00 AM through 6:00 PM Central Standard Time (CST).
b) Preventative Maintenance: Cubresa will perform one (1) comprehensive preventative maintenance visit per year. This maintenance inspection will include the examination of the proper functioning of the system modules, examination of spare parts and wear parts and Cubresa’s service engineer shall be available for technical advice to users. This annual maintenance visit shall take no longer than twelve (12) hours and shall be performed in one (1) day.
c) Service visits on request. In addition, Customer shall be entitled to request service visits for the purpose of eliminating possible malfunctions. The service visit will be performed by Cubresa if subject to the judgement of the responsible Cubresa employee an existing problem cannot be solved by simpler means. Customer shall provide reasonable cooperation.
d) Spare parts: Cubresa will supply and deliver all necessary spare parts. Any original parts removed and/or replaced during any service process shall become the property of Cubresa.
e) Software Maintenance: Customer will receive all maintenance software updates of applications covered by the Agreement as released by Cubresa. Software updates are later versions of existing software, which do not necessarily introduce new functionalities.
2.3. Cubresa shall have no obligation to perform services which become necessary due to:
lack of proper care; use of Cubresa products that is not in compliance with Cubresa’s manuals, instructions for use and a reasonable degree of care for such products; use of Cubresa products in combination with devices, parts of devices, or accessories that have not been expressly cleared by Cubresa for use with such Cubresa system; maintenance or repair of Cubresa products that have not been authorized by Cubresa personnel; unauthorized modification of Cubresa products; failure of Customer to immediately report any malfunction of a Cubresa system or continuous use of the system after occurrence of any such malfunction; faults, failures or damages caused by intentional or negligent behavior; force majeure.
2.4. Cubresa shall be entitled to appoint subcontractors to perform the services.
3. SERVICE DELIVERY, REACTION TIME
3.1. Technical service other than hotline, fax, and e-mail support and, in certain cases, repair of parts, which may be performed at Cubresa’s premise, will be performed at Customer’s premises where the product is located.
3.2. Cubresa shall react to Customer reports of malfunctioning Cubresa systems by phone, fax or email within no more than one (1) business day (a business day being any day other than Saturday, Sunday or a statutory holiday in the Province of Manitoba) by phone call. If the malfunction cannot be eliminated by phone call, the dispatch of spare parts as well as maintenance and repair will normally be initiated within one (1) business day after the problem analysis by phone, pending availability of personnel and material and location of the product.
3.3. Customer shall allow Cubresa free access to the system, and shall offer a suitable workplace, including an internet connection and a telephone, if needed. Cubresa shall use the internet connection and telephone line exclusively to perform the service work under the Agreement.
3.4. Customer shall ensure safe conditions at the location of the system. In particular, Customer shall inform Cubresa of existing safety regulations that are relevant for Cubresa personnel.
3.5. Customer shall provide the assistance reasonably required by Cubresa. In the event that Customer is unable to provide appropriate assistance, Cubresa shall be entitled to provide additional personnel for which Customer may be charged the current service fees charged by Cubresa. Furthermore, Cubresa shall be entitled to delay any performance until reasonably required assistance is provided by Customer.
4. SERVICE SCHEDULE / REPORT OF DEFECTS
4.1. Customer and Cubresa shall mutually agree on dates and times for service visits at least two (2) business days in advance.
4.2. Cubresa will provide services Monday through Friday from 8.00 am till 5.00 pm local time. Services provided at other times will be charged to the Customer as overtime.
4.3. In the event that a service appointment is cancelled due to reasons within Customer’s responsibility, Customer shall inform Cubresa at least one (1) business day in advance.
4.4. In the event that Customer fails to notify Cubresa in due time, Cubresa shall be entitled to charge Customer for all costs reasonably incurred with regard to the appointment.
4.5. In the event that any malfunctions occur, Customer shall immediately cease using the product and inform Cubresa of the malfunction without delay. Customer shall not resume use of the system before Cubresa has given notice that the malfunction has been eliminated.
5. TERMS OF PAYMENT, CHANGES IN PRICE
5.1. Unless otherwise expressly agreed, prices are delivery duty unpaid (DDU, Incoterms 2000).
5.2. Payments shall be made annually in advance. The first payment shall be due on the Effective Date.
5.3. All invoices are payable net within thirty (30) days from the date of invoice.
5.4. Cubresa reserves the right to adjust the yearly service fees according to general price increases. Such changes in price become effective in the year following the price adjustment, provided that Cubresa has notified Customer of these changes at least four (4) months in advance.
6. RENEWAL AND TERMINATION
6.1. The Agreement shall have an initial term of one (1) year, unless otherwise specified in the Agreement.
6.2. Either party may terminate the Agreement by giving at least three (3) months written notice towards the end of the initial term or any anniversary thereof.
6.3. Notwithstanding the foregoing, either party will have the right to terminate the Agreement in its entirety and with immediate effect if there is a material breach by the other party not remedied within thirty days of notice thereof;
if the other party becomes subject to voluntary or involuntary bankruptcy, receivership, or related proceedings; or at a party’s dissolution.
Statutory provisions regarding termination without notice shall not be restricted by the foregoing.
6.4. Notwithstanding anything to the contrary contained herein and/or in the Agreement, Cubresa shall have the right to terminate this Agreement in the event that the products being covered hereunder reach the Cubresa or original product manufacturer designated “end of life” or otherwise are no longer offered commercially by Cubresa or the original product manufacturer. Upon the effective date of termination under this subsection, Cubresa shall refund to Customer a pro-rated amount of the paid amount, reflecting the amount due for the unused portion of this agreement.
7. LIMITATION OF LIABILITY / WARRANTY / LIMITATION
7.1. Cubresa shall only be liable for damages which have been caused by Cubresa’s negligent or willful breach of an essential duty under the Agreement or which have been caused by gross negligence or intentional misconduct of Cubresa. In all cases, Cubresa’s liability shall be limited to the foreseeable damage. The foregoing shall apply for any and all claims, including but not limited to tort claims.
7.2. Cubresa shall not be liable for completeness of data delivered by the systems.
7.3. The warranty period for any and all services and goods provided hereunder shall be one (1) year.
7.4. In the interest of conservation of scarce materials, products may contain remanufactured parts. Such parts are subject to the same high standards of quality control applied to other parts and are covered by this warranty.
7.5. No claims, regardless of form, arising out of, or in any way connected with the terms of this agreement may be brought by a party more than one (1) year after the cause of action therefore has occurred.
8. PATENTS AND INTELLECTUAL PROPERTY
8.1 All rights to patents, trademarks, and any other intellectual property shall remain the property of Cubresa.
9. DATA PROTECTION, CONFIDENTIALITY
9.1. Cubresa undertakes to observe all data protection regulations applicable in the course of providing its services.
9.2. Customer agrees that Cubresa may remotely access the products at Customer’s site within the scope of this agreement, and may process and store data in order to perform the remote services.
9.3. Customer shall keep in confidence all information, including but not limited to technical data, descriptions or products and services provided, pricing, discount, and any other information which is readily and reasonably identifiable as confidential based on its nature and/or the circumstances of its disclosure. For clarification only, this shall include information provided verbally.
9.4. For the improvement of products and customer support Cubresa shall be entitled to collect statistical data stored on Customer’s products. This data will be stored anonymous and used exclusively for internal purposes.
10. APPLICABLE LAW / ARBITRATION / PARTIAL INVALIDITY / CHANGES
10.1. These Standard Terms and Conditions of Service will be governed by the laws of the Province of Manitoba.
10.2. Any claim or controversy arising out of or relating to these standard terms and/or any other legal relationship between the parties shall be settled in Province of Manitoba by arbitration in accordance with The Arbitration Act (Manitoba).
10.3. Any dispute shall be heard and determined by one arbitrator, unless any party’s claim exceeds $1,000,000, exclusive of interest and attorneys’ fees, in which case the dispute shall be heard and determined by three arbitrators.
10.4. Language of the arbitration shall be English.
10.5. The arbitration tribunal shall not award punitive damages.
10.6. The arbitration shall be final and binding, shall be the sole and exclusive remedy regarding any and all claims and counterclaims presented, and may not be reviewed by or appealed to any court except for enforcement of the final and binding arbitration determination.
10.7. Each party shall bear its own costs and expenses and an equal share of the cost of the arbitrator(s) and administrative fees of the arbitration.
10.8. Nothing in this agreement shall prevent Cubresa from seeking injunctive relief or other legal remedy to prevent unauthorized copying, disclosure, use, retention, or distribution of Cubresa’s intellectual property.
10.9. Cubresa shall have the exclusive right to bring legal action for failure to pay for products and services furnished in the courts of Cubresa’s headquarters.
10.10. If any part of the terms and conditions is held void or unenforceable, such part will be treated as separable, leaving valid the remainder of these terms and conditions, and any such invalid clause will be replaced by the valid clause that generally comes closest to the commercial intention of the invalid clause.
10.11. Cubresa reserves the right to change these Standard Terms and Conditions of Service and will inform Customer of these changes in advance by e-mail. Customer has the right to reject such changes within thirty (30) days of notification. Otherwise the changes shall be considered approved. Cubresa will inform Customer separately about his right of objection upon notification of the changes.