Quadlogic Controls Corporation (“Quadlogic”) offers certain products (the “Products”) and services (“Services”) (including software licensed as part of the Products or Services (the “Software”)) pursuant to these terms and conditions. By executing a purchase order (the “Purchase Order”) for Products or Services or completing or by making use of Products or Software, the party that executes the applicable Purchase Order or the entity that uses the Product, Services or Software (in either case, the “Customer”) agrees that the following terms and conditions apply to its receipt of Products and Services and use of the Software by it and all persons who use the Software licensed to it.
1. Previous Agreements: These terms and conditions supersede those contained in all previous quotations, orders and agreements, oral or written, and shall govern future transactions between the Customer and Quadlogic, except where there is a duly executed resale and distribution agreement or purchasing agreement in force as between the parties hereto, in which case such agreements remain in place but in the event of any inconsistency between such agreements and these terms and conditions, these terms and conditions will prevail.
2. Quotations: Quotations furnished by Quadlogic are not intended as and shall not be construed as constituting an offer to the Customer. Any quotation of Quadlogic is subject to, and shall not become binding upon Quadlogic until (i) actual receipt by Quadlogic of the Customer’s written order based on all the terms and conditions stated herein, without qualification, and (ii) Quadlogic’s acceptance of such order or the delivery of the products. All quotations shall expire thirty (30) days from the date of issuance unless otherwise stated on the quote. All quotations that include time or manpower support are presented only as an estimate of the amount of time required and are based upon information available to Quadlogic and provided by the Customer at the time of the quotation; such estimates do not constitute a guarantee that the required Service or Product will be delivered within the stated time period or at the stated cost. Quadlogic reserves the right to revise the pricing to current prices if a Purchase Order is not released by the Customer within six (6) months. Any drawings, specifications, notes or other data attached to any executed quotation or Purchase Order furnished by Quadlogic shall be deemed to be part hereof.
3. Pricing: Prices for all goods and services shall be in accordance with Quadlogic’s then current price list except as otherwise agreed in writing by Quadlogic and the Customer. Quadlogic reserves the right to amend its price list at any time or times without notice to the Customer. The Customer shall pay for all freight, insurance, taxes, duties, levies, customs or similar charges on such goods and services, whether or not the same is set forth in the Purchase Order.
4. Payment: Except as otherwise agreed to by Quadlogic in writing, all invoices are due not later than thirty (30) days from the date of the invoice. Overdue invoices bear interest at a rate of 2% per month, compounded monthly, (equivalent to 26.8% per annum) from the date of invoice. Subject to applicable laws, payment by credit card will incur an additional 3% surcharge to help offset merchant fees. Quadlogic reserves the right to require payment of the purchase price for goods prior to shipment. Title to the Product (excluding any software components of the Product or intellectual property rights) shall pass to the Customer upon payment in full by the Customer for the Product; provided however, that title to any software components of the Product and all intellectual property rights therein shall at all times remain with Quadlogic or its licensors. As security for payment, the Customer hereby grants to Quadlogic a purchase money security interest in the Product (together with their proceeds including insurance proceeds). The Customer acknowledges that a copy of these standard terms and conditions of sale or any other appropriate document may be registered with the relevant authorities to perfect the security interest granted in the Product. Until paid for in full, the Customer will not pledge or otherwise encumber the Product.
5. Modifications to Orders: No modifications of any order, or of these terms and conditions, shall be binding on Quadlogic unless agreed to in writing and signed by an authorized representative of Quadlogic.
6. Cancellation: In the event of cancellation of all or any part of a Purchase Order, the Customer shall be liable for the payment of reasonable cancellation charges which shall not exceed the unit retail list price of the Products or Services cancelled. Only standard Products may be returned and then only with prior agreement of Quadlogic at a minimum charge for restocking of thirty per cent (30%) of the sale price. Products which include custom components or work such as cabling, special paint, custom circuit boards, or software are not returnable. Return shipping charges are the responsibility of the Customer. In respect of Services (including SaaS services and Professional services) the Customer will only be entitled to cancel a Purchase Order as set out therein.
7. Taxes: Prices quoted are exclusive of any sales, use or other taxes unless so stated on the quotation. Any such taxes are solely the responsibility of the Customer.
8. Delivery: The acceptance of shipment by a common carrier shall constitute a delivery to the Customer and Quadlogic shall not be responsible for merchandise damaged in transit. Delivery dates as quoted are estimates and not guarantees and are based on conditions at the time of quotation. All deliveries are F.O.B. Quadlogic factory and will be shipped freight collect unless specifically agreed otherwise.
9. Delays in Shipment: Promises of shipment date made by Quadlogic shall not constitute a binding legal commitment by Quadlogic to ship on or before such date. Quadlogic makes every reasonable effort to ensure shipment on the promised date.
10. Installation: Unless otherwise agreed upon by the parties in a Purchase Order for Professional Services (as described below), the Customer shall be responsible for the installation of the Product by a certified electrician or person qualified to install the Product in the jurisdiction of installation. FAILURE TO ENSURE THE PRODUCT IS INSTALLED BY A CERTIFIED ELECTRICIAN OR PERSON QUALIFIED TO INSTALL THE PRODUCT IN THE JURISDICTION OF INSTALLATION SHALL VOID THE REPRESENTATIONS, WARRANTIES, COVENANTS AND CONDITIONS CONTAINED IN SECTIONS 11 THROUGH 15. The Customer shall ensure that the installer maintains appropriate insurance or bonding.
11. Conformity to Specifications: If any Product or Service (including Software) fails to conform to the stated and agreed upon specifications, Quadlogic’s sole and exclusive liability shall be limited to either supplying other Products or Services which do conform in all respects to such specifications, or refunding the purchase price (upon return of the product if requested by Quadlogic). The use of the Products or Services supplied hereunder will constitute acceptance and all warranties and obligations of Quadlogic regarding such products shall be discharged.
12. Service and Support: Quadlogic will provide general service and technical support to the Customer, in accordance with the then-current service and technical support policies and conditions in effect.
13. Warranty: Quadlogic warrants the hardware included in its Products (“Product Hardware”) to be free from defects in material and workmanship, under normal and proper use in accordance with instructions of Quadlogic for three (3) years from the date of shipment. IN PROVIDING PRODUCTS UNDER THESE TERMS AND CONDITIONS, QUADLOGIC MAKES NO WARRANTIES AND DISCLAIMS ALL REPRESENTATIONS AND CONDITIONS WHATSOEVER, EITHER EXPRESS OR IMPLIED (INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), ORAL OR WRITTEN, IN FACT OR BY OPERATION OF LAW OR OTHERWISE, EXCEPT AS EXPRESSLY STATED IN THESE TERMS AND CONDITIONS. QUADLOGIC WILL REPAIR OR REPLACE ANY PRODUCT HARDWARE FOUND TO BE DEFECTIVE BUT IT IS UNDERSTOOD AND AGREED THAT QUADLOGIC’S LIABILITY WITH RESPECT TO THE PRODUCTS SOLD HEREUNDER IS RESTRICTED TO REPAIR OR REPLACEMENT ONLY AND DOES NOT EXTEND TO LOSS OR DAMAGE RESULTING FROM THE USE OF SUCH DEFECTIVE PRODUCTS. Quadlogic warrants parts and labor on all repairs for the longer of: (i) three (3) years from the date of shipment of the original Product Hardware to the Customer and (ii) ninety (90) days after the date of shipment of the repaired Product Hardware back to the Customer. All complaints, including in respect of repaired or replaced Product Hardware must be made in writing within thirty (30) days of the date the warranty breach is discovered, provided that the discovery is made within the three (3) year period beginning on the date of original shipment of the Product. The non-return of Products will constitute complete acceptance by the Customer unless arrangements have been made for such return. The Products complained of must be held for inspection by representatives of Quadlogic before adjustment can be expected. Quadlogic does not accept responsibility for breakage or loss after obtaining a clear receipt from the carrier.
14. Warranty Repair Shipments: The Customer is responsible to arrange for and pay for all shipping of Products returned to Quadlogic for warranty repair. If the Product is found by Quadlogic to be a legitimate warranty claim, Quadlogic will arrange for and pay for the return shipment, otherwise the Customer is also responsible for paying for the return shipment. The Customer is responsible to obtain an RMA (Return Material Authorization) number from Quadlogic before returning any Products.
15. Advance Replacement: The Customer may request an advance replacement for any Product found to not conform to Quadlogic’s published specifications. This includes Products shipped from the factory which is of the wrong type. The replacement Product will be shipped and billed to the Customer’s account in accordance with standard payment terms for that Customer. For Product in-warranty and where Quadlogic determines that a Product does not comply with the specifications upon return, Quadlogic’s standard warranty terms will apply for that Product. In this case, Quadlogic will credit all charges incurred for the advance replacement. Where Quadlogic determines that the Product conforms to its specifications, Quadlogic will return the unit at the Customer expense. If the Customer does not require the unit to be returned, a thirty per cent (30% of sale price) re-stocking fee will apply. Where there is an Outside-of-Warranty Fault Found a repair fee may apply.
16. SaaS Services: The Customer may order Services which allow the Customer to access software hosted by Quadlogic and its service providers or store data produced by the Software and Products (such as meter data) (“SaaS Services”) by agreeing to a Purchase Order with Quadlogic. Quadlogic provides hosting of the SaaS Services using third party suppliers of hosting services which may include Amazon Web Services, and are provided from locations worldwide without restriction. OTHER THAN AS EXPLICITLY PROVIDED IN A PURCHASE ORDER, QUADLOGIC PROVIDES THE SERVICES PROVIDED BY SUCH THIRD PARTY SUPPLIERS ON AN “AS-IS” BASIS, AND THE CUSTOMER’S USE OF SUCH SERVICES MUST COMPLY WITH ANY TERMS AND CONDITIONS OF SUCH THIRD PARTY SUPPLIERS IMPOSED ON THE USE OF THEIR SERVICES. USE OF THE SAAS SERVICES IS AT THE CUSTOMER’S OWN RISK. The Customer represents and warrants that if it elects to use SaaS Services, it will have all rights, licenses and consents necessary to allow the SaaS Services to be provided by Quadlogic and third party suppliers as set out in these terms and conditions. QUADLOGIC MAKES NO WARRANTY AND DISCLAIMS ALL REPRESENTATIONS AND CONDITIONS, EITHER EXPRESS OR IMPLIED (INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), ORAL OR WRITTEN, IN FACT OR BY OPERATION OF LAW OR OTHERWISE CONCERNING THE SERVICES PROVIDED BY THIRD PARTY SUPPLIERS AND SHALL HAVE NO OBLIGATION OR LIABILITY WITH RESPECT TO THE PERFORMANCE OF ANY THIRD PARTY SUPPLIER IN CONNECTION WITH THE SAAS SERVICES. Improper or unauthorized use of the SaaS Services may lead to a suspension of services by Quadlogic or its third party suppliers until such time as such improper or unauthorized use is remedied.
17. Professional Services: The Customer may order other Services, including meter installation, commissioning, servicing or sealing (“Professional Services”) by agreeing to a Purchase Order with Quadlogic. Quadlogic may perform such Professional Services itself or using third party suppliers. Quadlogic and its third party suppliers will provide the Professional Services in a workmanlike manner and in material conformance with any requirements agreed to in a Purchase Order. Subject to the disclaimers and limitations of liability set out herein, Quadlogic will be responsible for the conduct of such third party suppliers and its personnel who perform Professional Services. The Customer will provide a safe work environment for the provision of Professional Services where they are performed outside of Quadlogic’s or its third party suppliers’ facilities.
18. Trademarks and Copyright: All names, logos and marks identifying Quadlogic and its products and services referenced in Quadlogic’s products or services are trademarks or registered trademarks of Quadlogic or are under license to Quadlogic. All other products, brand or company names mentioned in the products or services are the trademarks of their respective owners. Quadlogic owns and retains the copyrights in the documents, related graphics and materials published on Quadlogic’s products or services. Nothing contained herein shall be construed as conferring any license or right under any patent, trademark, tradename or copyright of Quadlogic or any third party.
19. Rights in Products and Software: Quadlogic and its licensors shall retain exclusive rights to their respective products, software, intellectual property rights, including copyrights, trademarks, patents and trade secrets, schematics, logic, diagrams, and manufacturing processes. Quadlogic and its licensors shall retain ownership and does not convey, nor does the Customer obtain any right, title, or interest in software, specifications or data furnished or developed by Quadlogic either prior to or in the performance hereof. Quadlogic grants to the Customer (and its personnel and service providers) a non-exclusive license to use the object code of the Software with, and only with the items supplied by Quadlogic hereunder and in connection with the Customer’s business purposes in accordance with these terms and conditions (including for greater certainty Section 20). The Customer (and its personnel and service providers) will not: (a) make any modifications to any Products, Software and documentation, (b) distribute the Products, Software and documentation to any third party, (c) remove, efface or obscure any trademark notices from the Products, Software and documentation, (d) use, license, sell or otherwise distribute the Products or Software except as provided in these terms and conditions (for greater certainty Section 20), (e) attempt to modify in reverse engineer, decompile or disassemble any portion of the Software and Products, (f) use the Software, Products, Services or documentation in violation of any applicable law or regulatory requirement, or (g) lease, rent, distribute, assign, sell or sublicense the Products or Software, in whole or in part, or to use the Products or Software in a time-sharing, subscription service, hosting or outsourcing arrangement. The Customer (and its personnel and service providers) may not install, access, or use any software in connection with the Software or Product unless such software was provided by or otherwise authorized by Quadlogic. Improper or unauthorized use of the Software or Products may lead to a suspension by Quadlogic of the Customer’s license until such time as such improper or unauthorized use is remedied. This license is non-exclusive, non-transferable and personal to the Customer for use in Canada and the U.S. unless otherwise agreed to in a Purchase Order. Acts and omissions of users of the Products or Software provided or licensed to the Customer will be deemed to be acts or omissions of the Customer.
20. Third Party Software: The Products and Software may be distributed with, or include as components, software governed by licenses from third parties (including open source software and software licensed under a GPL-type license) (“Third Party Software” and “Third Party License”). Any Third Party Software is licensed to the Customer (and its personnel and service providers) subject to the terms and conditions of the corresponding Third Party License, notwithstanding anything to the contrary in these terms and conditions. More information on Third Party Licenses applicable to the Third Party Software included as components of the Software or Products can be found in the documentation for the applicable Software or Product. Depending on the Third Party License you may place a request to obtain the corresponding source code from us for a period of three years after our last shipment of the Product including the Third Party Software, by sending a money order or check for $65.00USD and “source for product Y version X” in the memo line of the payment to:
Quadlogic Controls Corporation
PO BOX 1867
Long Island City, NY 11101
QUADLOGIC MAKES NO WARRANTY AND DISCLAIMS ALL REPRESENTATIONS AND CONDITIONS, EITHER EXPRESS OR IMPLIED (INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), ORAL OR WRITTEN, IN FACT OR BY OPERATION OF LAW OR OTHERWISE CONCERNING THIRD PARTY SOFTWARE AND SHALL HAVE NO OBLIGATION OR LIABILITY WITH RESPECT TO THIRD PARTY SOFTWARE.
21. Application Programming Interfaces (API) and Software Development Kits (SDK): Quadlogic may offer APIs for its Products and Services as separate Products. The purchase of a license key may be required in order to enable and expose APIs on certain Products and Services. Support for APIs and SDKs may be limited. The Customer (and its personnel and service providers) may only use SDKs and related APIs for their intended purpose as permitted hereunder or under any separate applicable license terms for APIs and SDKs. The Customer and its users may not use or attempt to use features of Quadlogic software that Quadlogic has not exposed or enabled for the purpose of utilizing the SDKs and related APIs. Acts and omissions of users of the API or SDK provided or licensed to the Customer will be deemed to be acts or omissions of the Customer.
22. Disclaimer: QUADLOGIC MAKES NO WARRANTY AND DISCLAIMS ALL REPRESENTATIONS AND CONDITIONS, EITHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, IN FACT OR BY OPERATION OF LAW OR OTHERWISE, WITH RESPECT TO THE NON-INFRINGEMENT, MERCHANTABILITY, ACCURACY, RELIABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE OR OTHERWISE OF THE PRODUCTS OR SERVICES, OR ON ANY PARTS OR COMPONENTS OR LABOUR FURNISHED AS PART OF THE SALE. QUADLOGIC MAKES NO WARRANTY AND DISCLAIMS ALL REPRESENTATIONS AND CONDITIONS, EITHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, IN FACT OR BY OPERATION OF LAW OR OTHERWISE AS TO THE AVAILABILITY OR RESPONSE TIME OF THE SERVICE, THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICE WILL MEET THE CUSTOMER’S REQUIREMENTS.
23. Limitation of Liability: IN NO EVENT SHALL QUADLOGIC OR ITS SUPPLIERS (INCLUDING THE HOSTING SERVICE PROVIDER FOR SAAS SERVICES), OR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO THE CUSTOMER OR ANY OTHER PARTY FOR ANY LOSS OF PROFIT (OTHER THAN PROFIT WHICH FORMS PART OF AMOUNTS PAYABLE BY THE CUSTOMER TO QUADLOGIC PURSUANT TO A PURCHASE ORDER), LOSS OF USE, DATA LOSS, DAMAGE TO HARDWARE OR SYSTEMS, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES ARISING OUT OF THE SALE, DELIVERY, INSTALLATION, SERVICING, USE, LOSS OF USE, OF THE PRODUCTS, SOFTWARE, OR SERVICES OR OF ANY PART THEREOF, IRRESPECTIVE OF WHETHER QUADLOGIC OR ITS SUPPLIERS (INCLUDING THE HOSTING SERVICE PROVIDER FOR SAAS) OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS HAS ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE TOTAL LIABILITY TO THE CUSTOMER EXCEED THE SUM PAID TO QUADLOGIC BY THE CUSTOMER FOR THE PRODUCTS, SERVICE OR SOFTWARE WHICH GAVE RISE TO THE LIABILITY. UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW, IN NO EVENT SHALL THE CUSTOMER BRING A CLAIM DIRECTLY AGAINST ANY OF QUADLOGIC’S SUPPLIERS (INCLUDING THE HOSTING SERVICE PROVIDER FOR SAAS SERVICES) OR ANY OF ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS DIRECTLY IN CONNECTION WITH THE SERVICES, PRODUCTS, OR SOFTWARE CONTEMPLATED BY THESE TERMS AND CONDITIONS.
24. Indemnity from the Customer: The Customer shall indemnify and hold Quadlogic and its suppliers (including the hosting service provider for SaaS Services), and their respective directors, officers, employees and agents harmless with respect to any general, specific, indirect, consequential, incidental, exemplary or punitive damage, liability or claim of any kind in connection with the loss of or damage to property and personal injury, including death, resulting from or in connection with the Products, Software or Services supplied by Quadlogic or any act or failure to act of Quadlogic. The Customer shall defend at its own cost and expense any and all suits or proceedings brought against Quadlogic and its suppliers (including the hosting service provider for SaaS Services), and their respective directors, officers, employees and agents or any of them, in connection with this indemnity.
25. Export: If Products are to be exported, the Customer agrees to comply with all applicable export control laws and regulations.
26. Design Ownership: Purchase of Products does not entitle the Customer or any other party to reproduce or make copies of the product or any component thereof or to reproduce or transmit the design or any information about the design in any way whatsoever.
27. High Risk Activities: The Products, Software and Services are not fault-tolerant and are not designed or intended for use in hazardous environments requiring fail-safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, direct life-support machines, or any other application in which their failure could lead directly to death, personal injury, or severe physical or property damage. Quadlogic and its suppliers expressly disclaim any express or implied warranty of fitness for any such activities.
28. Confidentiality: In connection with the Customer’s use of the Products and Services, the Customer may gain access to valuable information and trade secrets of Quadlogic and its suppliers that is, by its nature, confidential. The Customer shall protect the confidentiality of such information and only disclose it as required to exercise its rights and perform its obligations set out in these terms and conditions or any Purchase Order.
29. Government Regulations: These terms and conditions, and any confidential information provided, is subject to any restrictions concerning the export of products or technical information from Canada or the USA which may be imposed by the Canadian or United States Government. Accordingly, each party agrees that it will not export, directly or indirectly, any confidential information acquired under this agreement or any products utilizing any such confidential information to any country for which the Canadian or United States Government or any agency thereof at the time of export requires an export license or other governmental approval, without first obtaining the written consent to do so from the appropriate regulatory body or other agency in the Canadian or United States Government when required by an applicable statute or regulation.
30. Force Majeure: Quadlogic shall not be liable for default or delay in performance if caused, directly or indirectly, by acts of God; war; force of arms; fire; the elements; epidemic, pandemic; riot; labor disputes; picketing or other labor controversies; sabotage; civil commotion; accidents; any governmental action, acts or omissions of third parties, prohibition or regulation; delay in transportation facilities; shortage or breakdown of or inability to obtain or non-arrival of any labor, material or equipment used in the manufacture of the products covered hereby; or from any cause whatsoever beyond Quadlogic control, whether or not such cause be similar or dissimilar to those enumerated. Quadlogic shall use reasonable efforts to promptly notify the Customer of the happening of any such contingency and of the contemplated effect thereof on the manufacture and delivery of the Products, Software and Services.
31. Severability: In the event that any word, phrase, clause, sentence or other provision hereof shall violate any applicable statute, ordinance, or rule of law in any jurisdiction in which it is used, such provision shall be ineffective to the extent of such violation without invalidating any other provision hereof.
Governing Law; Venue: This document and the sale of any products and services hereunder shall be governed by, and construed and enforced in accordance with, the laws of the State of New York, without regard to New York’s conflicts of laws principles. Each party hereby irrevocably consents, attorns and submits, generally and unconditionally, to the exclusive jurisdiction and venue of the state and federal courts sitting and having jurisdiction in New York County, New York (and all appellate courts therefrom) over any and all actions or proceedings arising out of or related to this agreement (including any Purchase Order). TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT THAT THEY MAY HAVE TO TRIAL BY JURY OF ANY SUCH SUIT, ACTION OR PROCEEDING.
32. Titles: The titles in this agreement are for reference and convenience only and will not affect the meaning of the agreement.
REVISED FEBRUARY 2023