This Agreement is entered into by and between the you ("Customer") and Novel Solutions. Written approval is not a prerequisite to the validity or enforceability of this Agreement and no solicitation of any such written approval by or on behalf of Novel Solutions shall be construed as an inference to the contrary. If a Customer has requested any service or Product provided by Novel Solutions, Novel Solutions’ acceptance is expressly conditional on Customer's assent to these terms to the exclusion of all other terms; if these terms are considered an offer by Novel Solutions, acceptance is expressly limited to these terms.
The following terms shall have the meaning defined herein.
(a) Agreement - this agreement, which incorporates these terms and conditions.
(b) Business Day - from 9:00 a.m. to 5:00 p.m. eastern time Monday through Friday, except for Canadian government holidays.
(c) Product or Products - the computer software or hardware set forth in the applicable invoice from Novel Solutions, including any updates or upgrades provided to Customer by the applicable manufacturer.
(d) Problem - an error in the Product that causes it not to conform materially to the applicable user documentation provided by manufacturer.
(e) Technical Support - the technical support provided by Novel Solutions personnel.
(f) Workaround - a temporary solution or fix that restores operational capability without severely compromising the performance of the Product(s) or integrity of the operating system or data. Workarounds may include changes to configuration parameters or operational processes.
(g) Website - the information, software, graphics and links found on www.novel-solutions.ca.
(a) Payment Terms
Customer agrees that Novel Solutions’ obligations hereunder are contingent upon Customer's payment of fees to Novel Solutions. Invoices are due and payable thirty (30) days from date of invoice. In the event that any invoice is not paid when due, Customer will be subject to a late fee at the rate of one and one-half percent (1.5%) per month on the outstanding amount or the maximum rate permitted by law, whichever is less.
(b) Shipping Charges
Separate charges for shipping and handling will be shown on the invoice(s).
(c) Taxes
Unless Customer provides Novel Solutions with a valid and correct tax exemption certificate applicable to the product ship-to location prior to Novel Solutions’ acceptance of the order, the Customer is responsible for goods and services tax, sales and all other taxes associated with the order, however designated, except taxes on Novel Solutions’ net income. If applicable, a separate charge for taxes will be shown on Novel Solutions’ invoice.
(a) Rights of Novel Solutions
Title to all work product created by Novel Solutions under the terms of the Agreement will remain the property of Novel Solutions. To the extent that Customer's employees, agents, or contractors participate in creating any modifications to the Software, Customer assigns all intellectual property rights to such information, inventions, ideas, discoveries, or other matter provided to Novel Solutions under the Agreement, except where Novel Solutions is advised otherwise by Customer, in advance, that information provided to Novel Solutions constitutes Customer's existing intellectual property.
(b) License Grant
For Workarounds for which Novel Solutions owns the intellectual property rights, Novel Solutions will grant Customer a non-exclusive license, without right of sublicense, to use the Workarounds solely for Customer's own business purposes but not for marketing, distribution, or resale.
For Custom Developed Software Novel Solutions will include an “End User License Agreement” along with the Software product that covers the use and explains all the Rights of the product.
Each party will protect the other's confidential information from unauthorized dissemination and use the same degree of care that such party uses to protect its own like information, but in no event less than a reasonable degree of care.
(a) Limited Services Warranty
All work performed hereunder will be in a professional and workmanlike manner.
(b) Warranty Disclaimer
OTHER THAN THE LIMITED WARRANTY PROVIDED ABOVE, ALL WORK PERFORMED HEREUNDER WILL BE "AS IS" WITHOUT WARRANTY OF ANY KIND. NOVEL SOLUTIONS DOES NOT PROVIDE A GUARANTEE TO FIX ANY REPORTED PROBLEMS OR PROVIDE FIXES WITHIN A PREDEFINED TIME FRAME.
THE LIMITED WARRANTIES APPLICABLE TO NOVEL SOLUTIONS PRODUCTS ARE INCLUDED IN THE DOCUMENTATION PROVIDED WITH THE PRODUCTS. THERE ARE NO WARRANTIES FOR SERVICES. NOVEL SOLUTIONS MAKES NO EXPRESS WARRANTIES EXCEPT THOSE STATED IN NOVEL SOLUTIONS’ APPLICABLE WARRANTY STATEMENT IN EFFECT ON THE DATE OF THE INVOICE. ANY SUCH WARRANTIES WILL BE EFFECTIVE, AND NOVEL SOLUTIONS WILL BE OBLIGATED TO HONOUR ANY SUCH WARRANTIES, ONLY UPON NOVEL SOLUTIONS’ RECEIPT OF PAYMENT IN FULL FOR THE PRODUCT TO BE WARRANTED.
NOVEL SOLUTIONS DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NOVEL SOLUTIONS’ RESPONSIBILITY FOR WARRANTY CLAIMS IS LIMITED TO REPAIR AND REPLACEMENT AS SET FORTH IN NOVEL SOLUTIONS’ APPLICABLE WARRANTY STATEMENT IN EFFECT ON THE DATE OF THE INVOICE. NOVEL SOLUTIONS RESERVES THE RIGHT TO MODIFY ITS WARRANTY AT ANY TIME, IN ITS SOLE DISCRETION.
Under Novel Solutions’ "Total Satisfaction Return Policy", Customers who buy Novel Solutions products directly from Novel Solutions may return them to Novel Solutions up to 30 days after you receive them for a refund of the product purchase price if already paid. The Customer must prepay return shipping charges and insure the shipment or accept the risk of loss or damage during shipment and the refund credit will not include any shipping and handling charges shown on your invoice, and will be subject to a twenty percent (20%) restocking fee, unless otherwise prohibited by law. Novel Solutions’ "Total Satisfaction Return Policy" can be found online at www.Novel-Solutions.ca or on request.
IN NO EVENT SHALL NOVEL SOLUTIONS, ITS AFFILIATES, OWNERS, EMPLOYEES, AGENTS, OR REPRESENTATIVES BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, PERSONAL INJURY, COSTS OF REPLACEMENT GOODS, LOSS OR DAMAGE TO DATA ARISING OUT OF THE USE OR INABILITY TO USE THE NOVEL SOLUTIONS WEBSITE OR ANY NOVEL SOLUTIONS PRODUCTS OR SERVICES, DAMAGES RESULTING FROM USE OF OR RELIANCE ON THE INFORMATION OR MATERIALS PRESENTED ON THE NOVEL SOLUTIONS WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY EVEN IF NOVEL SOLUTIONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
CUSTOMER AGREES THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF PRODUCTS OR SERVICES, NOVEL SOLUTIONS IS NOT LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE AGGREGATE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PURCHASE OF PRODUCTS AND/OR SERVICES UNDER THIS AGREEMENT.
THE FOREGOING LIMITATIONS APPLY REGARDLESS OF THE CAUSE OR CIRCUMSTANCES GIVING RISE TO SUCH LOSS, DAMAGE OR LIABILITY, EVEN IF SUCH LOSS, DAMAGE OR LIABILITY IS BASED ON NEGLIGENCE OR OTHER TORTS OR BREACH OF CONTRACT (INCLUDING FUNDAMENTAL BREACH OR BREACH OF A FUNDAMENTAL TERM).
NEITHER NOVEL SOLUTIONS NOR CUSTOMER MAY INSTITUTE ANY ACTION IN ANY FORM ARISING OUT OF THIS AGREEMENT MORE THAN SIX (6) MONTHS AFTER THE CAUSE OF ACTION HAS ARISEN, OR IN THE CASE OF NON-PAYMENT, MORE THAN SIX (6) MONTHS FROM THE DATE OF LAST PAYMENT.
This Website contains links to other third-party Web Sites, these links are provided solely as a convenience to our Customers and not as an endorsement by Novel Solutions of the contents. Novel Solutions is not responsible for the content of any third-party Web Site, nor does it make any representation or warranty of any kind regarding any third-party Web Site including, without limitation:
(i) any representation or warranty regarding the legality, accuracy, reliability, completeness, timeliness, security, suitability of any content on any third-party Web Site,
(ii) any representation or warranty regarding the merchantability and fitness for a particular purpose of any material, content, software, goods, or services located at or made available through such third-party Web Sites, and
(iii) any representation or warranty that the operation of the third-party Web Site will be uninterrupted or error free, that defects or errors in such third-party Web Sites will be corrected, or that such third-party Web Sites will be free from viruses or other harmful components.
(a) Governing Law
The Agreement will be governed by the laws of the province of Ontario, Canada, without regard to the principles of conflict of laws. The parties hereto consent to the exclusive jurisdiction and venue of the Metropolitan Toronto courts located in the province of Ontario, and expressly waive any objection to the jurisdiction or convenience of such courts.
(b) Waiver
Failure by either party to enforce any provision of the Agreement will not be deemed a waiver of future enforcement of that or any other provision.
(c) Force Majeure
Except for the obligation to make payments, non-performance of either party will be excused to the extent performance is rendered impossible due to causes beyond such party's reasonable control.
(d) Allocation of Risk
This Agreement defines a mutually agreed-upon allocation of risk, and the Technical Support price reflects such allocation of risk.
This Agreement sets forth the entire understanding and agreement between the parties concerning the subject matter hereof and may be amended only in a writing signed by authorized representatives of both parties. No terms on any purchase order from Customer shall in any way modify, replace, or supersede the terms of this Agreement.
Each of the terms, conditions and policies in this Agreement stand alone. Should any provision of this Agreement be found by a court of competent jurisdiction to be invalid or unenforceable, all other provisions of the Agreement will remain in full force and effect.
Novel Solutions may, at any time and from time to time, modify this Agreement by reasonable prior notice sent to you or displayed on its Website. As well, you agree to check Novel Solutions’ Website periodically to review whether any modifications have been made. Your continued use of the Service following notice of such modification shall be deemed to be your acceptance of that modification. If you do not agree to any modification of this Agreement, you must immediately stop using the Service.