PLEASE READ THIS DOCUMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU. THIS DOCUMENT CONTAINS A DISPUTE RESOLUTION CLAUSE.
This Agreement contains the terms and conditions that apply to your purchase from FX Satellites, a Canadian Corporation ("FX", "our" or "we") that will be provided to you ("Customer") on orders for products and/or services sold in Canada. By accepting delivery of the products and/or services described on the invoice, Customer agrees to be bound by and accepts these terms and conditions.
THESE TERMS AND CONDITIONS APPLY UNLESS THE CUSTOMER HAS SIGNED A SEPARATE PURCHASE AGREEMENT WITH FX, IN WHICH CASE THE SEPARATE AGREEMENT SHALL GOVERN.
These terms and conditions are subject to change without prior written notice at any time, in FXs sole discretion.
1. Other Documents. Other than as specifically provided in any separate formal purchase agreement between Customer and FX, these terms and conditions may NOT be altered or amended by the use of any other document(s).Any attempt to alter or amend this document or to enter an order for product(s) or services and support that are subject to altered terms and conditions will be null and void, unless otherwise agreed to in a written agreement signed by both Customer and FX.
2. Governing Law. THIS AGREEMENT AND ANY SALES THEREUNDER SHALL BE DEEMED TO HAVE BEEN MADE IN THE PROVINCE OF ALBERTA AND SHALL BE CONSTRUED AND INTERPRETED ACCORDING TO THE LAWS OF THE PROVINCE OF ALBERTA AND THE APPLICABLE LAWS OF CANADA. THE PARTIES HEREBY AGREE TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE PROVINCE OF ALBERTA.
3. Payment Terms; Orders; Quotes; Interest. Terms of payment are within FXs sole discretion, and unless otherwise agreed to by FX, payment must be received by FX prior to FXs acceptance of an order. Payment for the products and services and support may be made by credit card, wire transfer, or some other prearranged payment method unless credit terms have been agreed to by FX. If credit terms have been agreed to by FX, invoices are due and payable within thirty (30) days after the date of the invoice. FX may invoice parts of an order separately. Orders are not binding upon FX until accepted by FX. Any quotations given by FX will be valid for the period stated on the quotation. Customer agrees to pay interest on all amounts past due at a rate of one and one half percent 1.5% per month (19.56% per year).
4. Shipping Charges; Taxes. Separate charges for shipping and handling will be shown on the invoice(s). Unless Customer provides FX with a valid and correct tax exemption certificate applicable to the product ship-to location prior to FXs 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 FXs net income. If applicable, a separate charge for taxes will be shown on the invoice.
5. Title; Risk of Loss. Title to products passes from FX to Customer on shipment from FXs facility. Loss or damage that occurs during shipping is FXs responsibility. Title to software will remain with the applicable licensor(s). Ship dates are estimates only. FX is not liable for delays in shipment or failure to ship by the estimated ship date.
6. Warranties. FX warrants that FX branded Products conform to FXs published specifications at the time of delivery. FX warrants that services provided by FX will be consistent with FXs standard specifications or, if none, with FXs standard practices. Customer acknowledges that FX acts as a distributor for Products not branded by FX (Resale Products) and that matters relating to the quality of the Products are not within FXs control. Accordingly, FX MAKES NO WARRANTIES WHATSOEVER CONCERNING RESALE PRODUCTS. THE FOREGOING WARRANTIES ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES OR CONDITIONS EXRESS OR IMPLIED. FX EXPRESSLY EXCLUDES ANY IMPLIED OR EXPRESS WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY.
FX provides Free-to-Air satellite Products for the sole purpose of accessing Free-to-Air channels. Any additions of third-party software or modifications to your equipment will result in your warranty being considered null and void. Additions and modifications to your equipment may also result in criminal charges in your home country and expose your home to security issues. FX does not support the theft of encrypted satellite signals and reserves the right to refuse sale should it be suspected that the product will be used illegally.
7. Software. All software is provided subject to the license agreement that is part of the package. Customer agrees that it will be bound by the license agreement once the package is opened or its seal is broken. FX does not warrant any software under this Agreement. Warranties, if any, for the software are contained in the license agreement that governs its purchase and use.
8. Return Policies. Under FXs "Return Policy", end-user Customers who buy FX-branded products directly from FX may return them to FX up to 30 days after you receive them for a refund of the product purchase price if already paid. You 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 fifteen percent (15%) restocking fee, unless otherwise prohibited by law. FXs "Return Policy" can be found on request.
9. Exchanges. From time to time, FX may, in its sole discretion, exchange products or portions of a product. Any exchanges will be made in accordance with FXs exchange policies in effect on the date of the exchange.
10. Products. FX continually upgrades and revises its products and service offerings to provide FX customers with new choices. FX may revise and discontinue products at any time without prior notice to customers. FX will ship products that have the functionality and performance of the products ordered, but changes between what is shipped and what is described in a specification sheet or catalogue are possible. The parts and assemblies used in building FX products are selected from new and equivalent-to-new parts and assemblies in accordance with industry practices. Spare parts may be new or reconditioned.
11. Limitation of Liability. FX (INCLUDING AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS) DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING ANY LIABILITY FOR PRODUCTS NOT BEING AVAILABLE FOR USE. FX WILL NOT HAVE ANY LIABILITY FOR ANY DAMAGES ARISING FROM THE USE OF THE PRODUCTS IN ANY HIGH RISK ACTIVITY, INCLUDING, BUT NOT LIMITED TO, THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, MEDICAL SYSTEMS, LIFE SUPPORT OR WEAPONS SYSTEMS. FX WILL NOT BE LIABLE FOR LOST PROFITS, LOSS OF BUSINESS, OR OTHER INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY EXCEPT AS EXPRESSLY PROVIDED HEREIN.
CUSTOMER AGREES THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF PRODUCTS OR SERVICES, FX 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 FX NOR CUSTOMER MAY INSTITUTE ANY ACTION IN ANY FORM ARISING OUT OF THIS AGREEMENT MORE THAN EIGHTEEN (18) MONTHS AFTER THE CAUSE OF ACTION HAS ARISEN, OR IN THE CASE OF NONPAYMENT, MORE THAN EIGHTEEN (18) MONTHS FROM THE DATE OF LAST PAYMENT.
SOME PROVINCES DO NOT ALLOW THE EXCLUSION OF LIMITATION OF (i) INCIDENTAL OR CONSEQUENTIAL DAMAGES OR (ii) IMPLIED WARRANTIES OR CONDITIONS, SO THE ABOVE EXCLUSIONS MAY NOT APPLY.
12. Dispute Resolution.
A. Acknowledgments Customer acknowledges that FX possesses valuable confidential and proprietary information, including trade-marks and business practices, that would be damaging to FX if revealed in open court. The parties further acknowledge and agree that it is preferable to resolve all disputes between them confidentially, individually, and in an expeditious and inexpensive manner. The parties accordingly acknowledge and agree that private dispute resolution is preferable to court actions.
B. Good Faith Negotiation. Before commencing any arbitration in the manner set out in Subsection 12(c) below, the parties shall first attempt to resolve any dispute or differences between them by way of good faith negotiation. The good faith negotiation shall commence by each party communicating their position regarding the complaint, claim, dispute, or controversy to the other party, and how the parties should resolve the dispute. The parties shall then make good faith efforts to negotiate a resolution of the claim, dispute, or controversy. Neither party shall commence any arbitral proceedings unless and until the good faith negotiation fails.
C. Arbitration. ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS CAPABLE IN LAW OF BEING SUBMITTED TO BINDING ARBITRATION) AGAINST FX, its agents, employees, officers, directors, successors, assigns or affiliates (collectively for purposes of this paragraph, "FX") arising from or relating to this Agreement, its interpretation, or the breach, termination or validity thereof, the relationships between the parties, whether pre-existing, present or future, (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), FX's advertising, or any related purchase SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY THE ALBERTA ARBITRATION & MEDIATION SOCIETY (AAMS) under its Code of Procedure and any specific procedures for the resolution of small claims and/or consumer disputes then in effect (available via the Internet at http://www.aams.ab.ca/, or via telephone at 780-433-4881). The arbitration will be limited solely to the dispute or controversy between Customer and FX. Any award of the arbitrator(s) shall be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. Information may be obtained and claims may be filed with the AAMS at #605, 10707 100 Avenue, Edmonton, Alberta, T5J 3M1.
D. Injunctive Relief and Provisional Relief in Aid of Arbitration. Notwithstanding the provisions in this Section 12 or anywhere else in this Agreement, FX shall have the right to seek and obtain any provisional or interim relief from any court of competent jurisdiction to protect its trade-mark or property rights or to preserve the status quo pending good faith negotiation and/or arbitration.
13. Applicable Law; Customer agrees to comply with all applicable laws and regulations of the various provinces and of Canada.
14. Exports. Customer acknowledges that the Products licensed or sold hereunder are subject to, and Customer agrees to comply with the export control laws and regulations of Canada and the United States.
15. Headings. The section headings used herein are for convenience of reference only and do not form a part of these terms and conditions, and no construction or inference shall be derived therefrom.
16. Force Majeure. FX shall not be liable for any delay or failure in performance caused by circumstances beyond its reasonable control.
Privacy Reminder: FX respects your privacy. To review a copy of our privacy policy outlining our collection, use and disclosure of your personal information, please click on the Privacy Policy link at the bottom of the page or call (403) 590-9145.
FX Terms and Conditions of Sale
Effective Date: January 1, 2008