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General Terms and Conditions

there is a lot of legal stuff here ...

1 - PREAMBLE

1.1 The following terms and conditions apply to all products and services quoted or sold by Thinking Big. They will continue to apply unless and until Thinking Big clearly and expressly accepts new terms and conditions in writing.

1.2 Thinking Big is not committed by the prices, specifications or information on datasheets, sales documents, or other non-contractual documents, which are provided for information only and are subject to alteration.

1.3 All Clients are aware that by ordering from Thinking Big they accept and agree to be bound without reserves by Thinking Big's terms and conditions, and waive their benefit of their own standard purchasing terms and conditions (included in purchase orders, confirmation letters and the like).

2 - OFFER TERM

2.1 Thinking Big's written proposals are valid for a maximum of 1 month, commencing on the date of mailing unless Thinking Big agrees on an extension of validity in writing.

2.2 Whether or not an offer preceded the order the agreement is deemed to be entered only upon the receipt of the confirmation in writing by the purchaser of the initial order and the following riders.

2.3 Orders must specify the type of products, quantity of each product, the name and address of Client's shipping agent, address for delivery and the latest date of delivery.

2.4 In case of any discrepancy, the details given in the order acceptance form will prevail over those in the order unless Client raised any objection to the details appearing on the order acceptance form, to Thinking Big in writing within seven (7) days after receipt of the order acceptance form.

After this deadline, no order can be cancelled without prior and written authorization and subject to the payment of the charges related to the cancellation by the Client

3 - DOCUMENTATION

3.1 Weights, measurements and any other performance specifications, drawing illustrations in any technical or commercial brochures, advertising etc�are only given for information and shall be binding only if explicitly quoted in the order acceptance form.

3.2 Documents provided to the Client remain Thinking Big property and cannot be, without prior and written Thinking Big's authorization, communicated, copied or reproduced, by the Client.

4 - PRICES

Thinking Big's prices are stated in CDN $, US $, or Euro excluding any tax, custom duty, or delivery (unless otherwise specified and expressly agreed by Thinking Big in writing. Prices are: FOB/FCA Thinking Big factory - Incoterm 2000.

Unless stipulated in writing all prices are valid for a one month period starting the date quotation is sent.

5 - SHIPMENT AND LIABILITY TRANSFER

Thinking Big products will be deemed to have been delivered, and risk transferred when these products are made available to Client consistent with section 6.4. Thereafter, Client assumes all liability and risk therefore. Thinking Big may carry out partial delivery and send the related invoicing.

6 - DELIVERY DATES

6.1 Unless otherwise stated on the order acceptance form, the delivery delay is calculated starting from the last of the following dates: Receipt by Thinking Big of all the information necessary to proceed to the implementation of the order; Receipt by Thinking Big of the down payment;

6.2 Unless otherwise stated on the order acceptance form, delivery dates are given for information only and may be subject to alteration.

6.3 Thinking Big is not liable for any claim, or indemnification arising from any delay, howsoever caused, and expressly agreed in writing between Thinking Big and Client.

6.4 Late delivery due to Client: if Client fails to provide Thinking Big with the necessary information for delivery of the ordered products, at a minimum of twenty-one (21) days preceding the delivery date agreed in writing or within seven (7) days following Thinking Big written request therefore, Thinking Big is authorized to store the ordered products in a suitable warehouse chosen by Thinking Big, the product will be deemed to have been delivered under Clause 5.

6.5 Client shall be liable for any costs, risks and liabilities incurred subsequent to storage under Clause 6.4 above, including (without limitation) re-testing, battery change or refurbishing. Such costs, risks and liabilities shall be borne by Client.

7 - INVOICING AND PAYMENT TERMS

7.1 Unless otherwise agreed in writing, the Client shall be invoiced as follows : a) Fifty per cent (50%) of the Order Price upon written order b) Fifty per cent (50%) of the Order Price upon delivery. Payment is due within thirty (30) days of the date of the Thinking Big invoice, except for the down payment which shall be paid by wire transfer upon the order.

7.2 In case of a payment delay, Client shall pay penalty on the total invoiced amounting to 1.5 times at least the legal rate.

7.3 Thinking Big may suspend performance of its obligations under the General Conditions until full payment of principal. Thinking Big may set off amounts paid by Client against any amount due in accordance with this order or any other order entered into between Client and Thinking Big.

7.4 The down payment made upon the order is a first payment to be deducted from the total amount of the order, it is not a deposit giving to the parties the right to stop the contract; even in case of surrender of this amount.

8 - PROPERTY TRANSFER

Thinking Big shall retain full ownership of, and title to the services or the products until full payment therefore has been received, even thought products have been delivered. The absence of payment of any installment may trigger the recovery of related products. With this respect any title creating an obligation to pay does not constitute payments under the present provision. In spite of the application of this clause of property transfer, the Client shall bear the risks in the event of loss or destruction as from the delivery of the products as the responsibility for the damage which they may cause. He shall also bear the costs of insurance.

9 - WARRANTY and LIABILITY

Software products warranty and liability: Thinking Big warrants that Software products performances shall substantially comply with their accompanying written materials for a period of ninety (90) days from the Delivery Date.

This Clause 9 warranty replaces any other warranties, whether statutory, express or implied, and of any obligations or liabilities of Thinking Big to Client arising out the supplied equipment. No statutory, express or implied warranty of merchantability or fitness for any particular purpose shall apply. This limited warranty is granted to Client personally and shall not be assigned by Client to any third party without Thinking Big's written consent. If products returned to Thinking Big are found either to be serviceable or to be defective for reasons outside this warranty, then the cost of tests, repairs, replacement and return carriage shall be borne by Client.

Are excluded for Thinking Big liability all repairs or intervention having their origin from :

  • non-respect of the specifications provided by Thinking Big relating to the rules of installation and/or use defined by Thinking Big;
  • the deteriorations caused by vandalism, the negligence's or errors of handling of the Purchaser or the final Client of the products
  • the intervention of a person employed by Thinking Big;
  • an event of Force Majeure as defined in article 10 hereafter;
  • coupling with material equipment or systems not provided by Thinking Big or not recommended by Thinking Big;
  • operations of handing-over on technical level of the products, others that those considered to be necessary by Thinking Big.

The Client hereby agrees to release Thinking Big of any responsibility for the direct or indirect damageable consequences such as, but not limitative, to loss of profit or loss of earnings resulting from a defect, or an incident or of a functions stop.

In no case, for Thinking Big could liable be for any illegal and/or fraudulent use of the products which could be made by the Client or the final Client.

10 - FORCE MAJEURE

10.1 Thinking Big shall not be responsible for any failure to comply with these terms and conditions due to causes beyond the reasonable control of either party.

10.2 These Clause 10 causes include, but is not limited to: fire, storm, flood, earthquake, explosion, strike, labor dispute, criminal acts, riot, war (whether actually declared or not), rebellion, insurrection, sabotage, epidemics, quarantine, Force Majeure, acts of government, legal action, etc.

10.3 Thinking Big shall promptly notify Client in writing of the intervention and cessation of such events and of their consequences.

11 - COPYRIGHT AND CONFIDENTIALITY

The copyright in all Thinking Big's documents provided to the Client for the purpose of these terms and conditions shall at all times remain vested in Thinking Big only. The content of these documents, as well as all information delivered for the purpose of these terms and conditions (including reports, drawings, specifications and other data) shall be confidential and shall not be used for any other purpose other than that for which they were provided, nor shall they be reproduced, disclosed or transferred to any third Party without Thinking Big's express written agreement.

12 - GOVERNING LAW

All agreements entered into between Client and Thinking Big governed by the Laws of Prince Edouard Island, Canada. This document will be deemed to have been made in and will be governed by and construed in accordance with the laws and procedures of the Courts of Charlottetown, Prince Edouard Island. Any dispute arising in connection with or as consequence of the agreement shall be exclusively settled by the competent court of Charlottetown, Prince Edward Island, Canada.