QRamp’s General Terms & Conditions

1. Applicability.

a. These terms and conditions of sale (these “Terms”) apply to all purchases of QRamp products (“Goods”) manufactured and sold by ThruFlow Inc. (“Seller”) to Buyers. For the purposes of these Terms, a “Buyer” is an individual or entity that purchases Goods directly from Seller and includes resellers that, order, procure, or pay for Goods for resale/distribution purposes (“Resellers”).

b. Individuals or entities that have purchased Goods from authorized Resellers and not directly from Seller are subject to terms and conditions of sale were established by such Reseller, which will in no event be binding upon Seller unless otherwise expressly agreed to.

c. The accompanying quote or sales order or purchase order and invoice (the “Sales Confirmation”), the Lifetime Limited Warranty and these Terms (collectively, this “Agreement”) comprise the entire agreement between the Buyer and Seller for the sale of Goods, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase, if any, regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfilment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.

d. Buyer acknowledges that these Terms are subject to change from time to time and the Buyer and Seller agree that each sale of Goods will be governed by the version of Terms available online at www.thruflow.com at the time of acceptance by Seller of an order for such Goods.

e. Seller has the right, in its sole discretion and without liability or penalty, to accept or reject any purchase order made by Buyer. Each purchase order shall be deemed to be an offer by Buyer to purchase the Goods pursuant to the terms of this Agreement and, when accepted by Seller as herein provided, shall give rise to a contract between Buyer and Seller on the terms and conditions set forth herein. Seller may accept any purchase order by confirming the order (whether by written confirmation, sales order, invoice or otherwise) or by delivering such Goods, whichever occurs first.

f. To the extent there are any conflicts, errors or inconsistencies between: (i) the documents comprising of the Sales Confirmation, the invoice shall prevail in regard to that conflict, error or inconsistency; (ii) the invoice and these Terms, the invoice shall prevail in regard to that conflict, error or inconsistency; and (iii) these Terms and the Lifetime Limited Warranty, these Terms shall prevail in regard to that conflict, error or inconsistency.

2. Delivery.

a. Unless otherwise agreed in writing by the Buyer and Seller, upon its acceptance of Buyer’s offer to purchase Goods, Seller shall: (i) deliver the Goods to 700 Gillard St, Wallaceburg, Ontario, or any other shipping point agreed to by Seller and Buyer in writing (“Shipping Point”); (ii) as a service to Buyer, arrange for the shipment of the Goods from the Shipping Point to a Buyer designated location (“Shipping Destination”); and (iii) provide Buyer with an estimated time of arrival based on the transportation carrier’s forecast. Seller shall not be liable to Buyer for any losses, claims, damages (direct or consequential), costs and expenses attributable to the transportation carrier’s failure to deliver the Goods to the Shipping Destination by the estimated time of arrival.

b. Buyer shall take delivery of the Goods within three (3) business days of Seller’s written notice that the Goods have been released from the Shipping Point.

c. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfilment of Buyer’s purchase order. Seller shall do its best to notify Buyer of any partial shipments prior to the Goods leaving Seller’s facility.

d. If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller’s notice that the Goods have been delivered at or to the Shipping Point, or if Seller is unable to deliver the Goods at or to the Shipping Point because Buyer has not provided appropriate instructions, documents/information, licenses, addresses or authorizations:

(i) at Seller’s sole discretion, the Goods may be deemed to have been delivered with risk of loss and title to the Goods passing to Buyer; and
(ii) Seller, at its option, may arrange for the storage of the Goods until Buyer takes possession of the same, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).

3. Non-Delivery.

a. The quantity of any instalment of Goods as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.

b. The Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) to the Shipping Point unless Buyer gives written notice to Seller of the non-delivery within five (5) days of the date when the Goods would, in the ordinary course of events, have been received at the Shipping Destination.

c. Any liability of Seller for non-delivery of Goods shall be limited to fulfilling the purchase order and delivering the Goods to the Shipping Point within a reasonable time after written notice of non-delivery by Buyer. Seller shall not be liable to Buyer for any losses, claims, damages (direct or consequential), costs and expenses attributable to the non-delivery of Goods to the Shipping Point.

d. Buyer acknowledges and agrees that the remedies set forth in this Section 3 are Buyer’s sole and exclusive remedies for the non-delivery of Goods.

4. Quantity.

If Seller delivers to Buyer a quantity of Goods more or less than the quantity set forth in the Sales Confirmation, Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods at the Price set forth in the Sales Confirmation adjusted pro rata.

5. Shipping Terms.

Unless otherwise agreed to in writing in the Sales Confirmation,

a. delivery shall be made FOB to the Shipping Point; and

b. all transportation charges and expenses shall be paid by Buyer, including the cost of any insurance against loss or damage in transit which Seller may obtain on Buyer’s behalf as an additional service. Special methods of transportation will be used upon Buyer’s request and at Buyer’s additional expense provided reasonable notice of Buyer’s transportation requirements are given by Buyer to Seller prior to shipment.

6. Title, Risk of Loss/Damage and Security Interest.

a. Risk of loss or damage and title (subject to any Security Interest) passes to Buyer once the ordered Goods have been compiled, properly packaged and made available for delivery to the transportation carrier or Buyer (or Buyer’s representative(s)) at the Shipping Point. As collateral security for the payment of the Price of the Goods, Buyer hereby grants to Seller a lien on and first priority security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing (the “Security Interest”).

b. Buyer agrees to reasonably cooperate with Seller and to assist in facilitating the perfection of the Security Interest under the applicable purchase money security interest (“PMSI”) statute. Such perfection may include, among other things, promptly executing and delivering appropriate financing statements or similar documentation to Seller upon request, provided that Seller shall be solely responsible for the preparation and filing of any documentation required to affect such perfection. Accordingly, the applicable PMSI and all related liens on a given Good purchased hereunder shall be deemed automatically released in full by Seller upon Seller’s receipt of payment in full for such Good, and no PMSI shall attach to any Good purchased hereunder for which Seller has received full payment in advance. Confiscation or destruction of, or damage to, the Goods shall not release, reduce or in any way affect the liability of Buyer hereunder or the Security Interest of Seller.

7. Order Cancellations.

a. Seller may, in its sole discretion, without liability or penalty, cancel any purchase order placed by Buyer and accepted by Seller, in whole or in part, if:

(i) Seller discontinues its sale of Goods or reduces or allocates its inventory of Goods; or
(ii) Seller determines that Buyer is in violation of its payment obligations hereunder or has materially breached or is in material breach of this Agreement; or
(iii) fulfilling the purchase order is prevented by any impediments arising out of national or international foreign trade or customs requirements or any embargoes or other sanctions.

b. Buyer may cancel or change any order placed with Seller without liability or penalty provided the order was canceled or changed before the Goods were placed in the Buyer’s or transportation carrier’s possession; otherwise, all costs, expenses and risks (loss or damage) associated with the return of shipped Goods to Seller’s facility shall be borne by Buyer and title to such Goods shall pass back to Seller upon Seller taking possession of the Goods at its facility.

8. Inspection and Rejection of Non-Conforming or Damaged Goods.

a. Buyer shall inspect the Goods within five (5) business days of physical receipt (“Inspection Period”) of the same either from the transportation carrier or directly from Seller when shipping had not been arranged. Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Non-Conforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller such as, but not limited to, the original sales order or invoice and photographs. “Non-Conforming Goods” means only the following:

(i) product shipped is different than identified in Buyer’s Sales Confirmation; or
(ii) product’s label or packaging incorrectly identifies its contents.

b. If Buyer timely notifies Seller of any Non-Conforming Goods, Seller shall, in its sole discretion,

(i) replace such Non-Conforming Goods with conforming Goods, or
(ii) credit or refund the Price for such Non-Conforming Goods, together with any reasonable and direct shipping and handling expenses incurred by Buyer in connection therewith. Upon Seller’s written request, Buyer shall ship:
(iii) at Seller’s expense and risk of loss, the Non-Conforming Goods to the Shipping Point unless otherwise agreed to in writing; and
(iv) deliver the Goods, in either their original packaging or packaging providing an equal degree of protection. If Seller exercises its option to replace Non-Conforming Goods, Seller shall, after receiving Buyer’s shipment of Non-Conforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods.

c. Buyer may not make any deduction from any payment due hereunder by reason of loss or damage to Goods in transit. On Buyer’s written request, Seller, in its sole discretion, may agree as a service to Buyer to process Buyer’s claim against the transportation carrier for any loss or damage in transit, provided that Seller receives such claim within the claims period noted by the transportation carrier and/or insurance provider as the case may be. All claims must be accompanied by a delivery receipt signed by transportation carrier’s agent at time of delivery and any other documentation the transportation carrier and/or insurance provider may require, or such claims may be waived.

d. Buyer acknowledges and agrees that the remedies set forth in Sections 8 (b)and (c) are Buyer’s exclusive remedies for the delivery of Non-Conforming Goods or Goods lost or damaged in transit. Except as provided under Sections 8 (b)and (c) or elsewhere in this Agreement, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller without Seller’s written consent.

9. Price.

Buyer shall purchase the Goods from Seller at the purchase price (the “Price”) set forth in the Sales Confirmation unless Buyer and Seller agree otherwise in writing.

10. Payment Terms.

a. Seller shall issue an invoice to Buyer within seven (7) days after the completion of delivery of the Goods to the Shipping Point. Unless the Sales Confirmation states otherwise, Buyer shall pay all properly invoiced amounts due to Seller within thirty (30) days from the invoice date. All payments hereunder must be in Canadian dollars unless Buyer is not a Canadian entity or individual residing in Canada, in which case, U.S. dollars. Buyer shall make all payments hereunder by wire transfer / cheque / credit card / cash. In the event of a payment dispute, Buyer shall deliver a written statement to Seller no later than ten (10) days before the date payment is due on the disputed invoice listing all disputed items. The Buyer and Seller shall seek to resolve all such disputes expeditiously and in good faith. Notwithstanding anything to the contrary, Buyer shall continue performing its obligations under this Agreement during any such dispute, including Buyer’s obligation to pay all due and undisputed invoice amounts in accordance with the terms of this Agreement.

b. Buyer shall pay:

(i) a 4% credit card service fees if Buyer subsequently decides to effect payment by credit card post the thirty (30) day payment period; and
(ii) interest on all late payments of 2% compounded monthly which is equal to an effective annual rate of 27.0995% (subject to any limit imposed by applicable law). Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, legal fees, on a full indemnity basis. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend or cancel the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for thirty (30) days following written notice thereof.

c. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.

11. Resellers.

a. Notwithstanding anything to the contrary in this Agreement, Resellers shall not:

(i) make any representations, conditions, warranties, guarantees, indemnities, similar claims or other commitments:
(ii) actually, apparently or ostensibly on behalf of Seller, or
(iii) to any customer or other person with respect to the Goods, which are additional to or inconsistent with any then-existing representations, conditions, warranties, guarantees, indemnities, similar claims or other commitments in this Agreement or any written documentation provided by Seller to Buyer including the Lifetime Limited Warranty (collectively, “Misrepresentations”); and
(iv) engage in any unfair, competitive, misleading or deceptive practices respecting Seller, Seller’s Trade-Marks or the Goods, including any product disparagement.

b. Resellers:

(i) may unilaterally establish their own resale prices and terms regarding the Goods they resell provided, however, that Seller reserves the right to establish the maximum prices at which the Goods may be resold;
(ii) are responsible for all credit risks regarding, and for collecting payment for, all Goods sold to their customers, whether or not they made full payment to Seller for the Goods;
(iii) remain obligated to pay Seller for any Good even if they were unable to collect the purchase price for any Good from their customer;
(iv) will not, upon written notice from Seller, resell Goods to individuals or entities within the territory of other Resellers that have secured, from Seller, sales exclusivity over a certain territory;
(v) must provide, in relation to every sale of Goods, the Seller’s Lifetime Limited Warranty included in a written warranty statement with the Goods or direct their customer to the Lifetime Limited Warranty found on Seller’s website at qramp.com/warranty;
(vi) must promptly notify Seller of any complaint or adverse claim about any Good or its use of which they become aware; and

c. No product warranty is extended to Resellers and Resellers shall not provide any product warranty regarding any Good other than the Seller’s Lifetime Limited Warranty if applicable.

12. Intellectual Property Rights.

Buyer acknowledges and agrees that:

(i) any and all of Seller’s Intellectual Property Rights are the sole and exclusive property of Seller or its licensors;
(ii) Buyer shall not acquire any ownership interest in any of Seller’s Intellectual Property Rights under this Agreement;
(iii) any goodwill derived from the use by Buyer of Seller’s Intellectual Property Rights ensures to the benefit of Seller or its licensors, as the case may be; and
(iv) Buyer shall use Seller’s Intellectual Property Rights solely for the purposes of performing its obligations under this Agreement and only in accordance with this Agreement and/or the written instructions of Seller.

a. Seller hereby grants to Resellers only, a non-exclusive, non-transferable and non-sublicensable license to use Seller’s Trade-Marks solely on or in connection with the promotion, advertising and sale of Goods in accordance with the terms and conditions of this Agreement and/or Seller’s written instructions. Such Reseller will promptly discontinue the display or use of any Trade-Mark or change the manner in which a Trade-Mark is displayed or used with regard to the Goods when requested by Seller. Other than the express licenses granted by this Agreement, Seller grants no right or license to such Reseller, by implication, estoppel or otherwise, to the Goods or any Intellectual Property Rights of Seller.

b. A Reseller is authorized to refer to itself, and advertise itself as an authorized reseller or distributor of the Goods, as the case may be. Any use of the name “ThruFlow” by such Reseller in connection with the sale of Goods or advertising of the name “ThruFlow” is at Reseller’s sole cost and expense.

c. Resellers shall not use the name ThruFlow, QRamp, or any other trade-mark or trade name adopted by Seller or any Trade-Mark:

(i) on, or directly or indirectly in connection with, any place of business or other facility that is not used for, or directly related to, the marketing of the Goods; and
(ii) in, or directly or indirectly as a part of, the trade, corporate or firm name or style of Reseller or of any division, subsidiary or affiliate thereof.

d. Notwithstanding the foregoing, Resellers shall submit to Seller for prior approval any proposed publication, advertising or other printed material identifying itself as an authorized Reseller of Goods, including references to itself as an authorized Reseller of Goods in any telephone, internet or other directory listings; provided that this Section 12(e) does not apply to those materials that were provided and approved by Seller for Reseller’s intended use.

e. Buyer shall not:

(i) take any action that may interfere with any of Seller’s rights in or to Seller’s Intellectual Property Rights, including Seller’s ownership or exercise thereof;
(ii) challenge any right, title or interest of Seller in or to Seller’s Intellectual Property Rights;
(iii) make any claim or take any action adverse to Seller’s ownership of Seller’s Intellectual Property Rights;
(iv) register or apply for registrations, anywhere in the world, for Seller’s Trade-Marks or any other trade-mark that is similar to Seller’s Trade-Marks or that incorporates Seller’s Trade-Marks in whole or in a confusingly similar part;
(v) use any mark, anywhere, that is confusingly similar to Seller’s Trade-Marks;
(vi) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Goods or any Seller Trade-Mark;
(vii) misappropriate any of Seller’s Trade-Marks for use as a domain name without prior written consent from Seller; and
(viii) alter, obscure or remove any of Seller’s Trade-Marks or trade-mark or copyright notices or any other proprietary rights notices placed on the Goods or packaging, marketing materials or other materials that Seller may provide.

f. Upon the receipt of written notice by Seller, Reseller shall immediately cease all display, advertising, promotion and use of all of Seller’s Trade-Marks and shall not thereafter use, advertise, promote or display any trade-mark, trade name or product designation or any part thereof that is similar to or confusing with Seller’s Trade-Marks or with any trade-mark, trade name or product designation associated with Seller or any Good.

g. In these Terms, “Intellectual Property Rights” shall mean all industrial and other intellectual property rights of Seller comprising or relating to: (a) Patents; (b) Trade-Marks; (c) internet domain names, whether or not Trade-marks, registered by any authorized private registrar or Governmental Authority, web addresses, web pages, website and URLs; (d) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, data, data files, and databases and other specifications and documentation; (e) industrial designs and industrial design registrations; (f) trade secrets; (g) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection under the laws of any jurisdiction in any part of the world.

h. In these Terms, “Trade-Marks” shall mean all rights in and to Seller’s Canadian and foreign trade-marks, trade dress, trade and business names, brand names, logos, design rights, corporate names and domain names and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals and extensions of, such rights and all similar or equivalent rights or forms of protection in any part of the world.

13. Taxes.

The Price for the Goods are exclusive of all applicable taxes (including HST and provincial sales tax). Each party herein will be responsible for the payment of and will pay any applicable taxes, duties, customs and levies levied on that party from time to time in relation to this Agreement.

14. Limited Warranty.

a. The Seller’s non-transferable Lifetime Limited Warranty as detailed on Seller’s website extended to End Users only (as defined in the Lifetime Limited Warranty) and only upon their purchase of Goods directly from the Seller or an authorized Reseller of the Seller.

b. EXCEPT FOR THE CONDITIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, SELLER MAKES NO CONDITION OR WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) CONDITION OR WARRANTY OF MERCHANTABILITY; OR (b) CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR USE; OR (c) CONDITION OR WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

15. Limitation of Liability.

EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNT PAID TO SELLER FOR THE GOODS SOLD HEREUNDER FOR THE PARTICULAR PURCHASE AT ISSUE. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL SELLER (INCLUDING ITS AFFILIATES, PARTNERS AND SUBCONTRACTORS) BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL OR INDIRECT CLAIMS, LOSSES, DAMAGES OR EXPENSES OF ANY KIND, INCLUDING FOR LOSS OF PROFITS OR REVENUE, LOSS OF GOODWILL, LOSS OF EXPECTED SAVINGS OR EXPECTED PROFITS, COSTS OF PURCHASED OR REPLACEMENT PRODUCTS, BUSINESS INTERRUPTION, LOST BUSINESS OR OPPORTUNITY, LOSS OF USE OF EQUIPMENT OR PLANT, LOSS OF PRODUCTION, COST OF CAPITAL OR FINANCING, LOSS OF INFORMATION OR DATA, OR FOR ANY SPECIAL, PUNITIVE, AGGRAVATED OR EXEMPLARY LOSSES, DAMAGES OR EXPENSES OF ANY NATURE INCURRED, SUFFERED OR ARISING OUT OF THIS AGREEMENT OR ANY GOODS (OR THE USE THEREOF) PROVIDED BY SELLER UNDER THIS AGREEMENT, EVEN IF SELLER OR THE BUYER HAS BEEN ADVISED OF OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THE BUYER AND SELLER AGREE THAT THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION ARE SEPARATE AND INDEPENDENT FROM ANY REMEDIES WHICH EITHER PARTY MAY HAVE HEREUNDER AND SHALL BE GIVEN FULL FORCE AND EFFECT WHETHER OR NOT ANY OR ALL SUCH REMEDIES SHALL BE DEEMED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

16. Indemnity.

Subject to the terms and conditions of this Agreement, Buyer shall indemnify, defend and hold harmless Seller and its parent, officers, directors, partners, shareholders, employees, agents, affiliates, successors and permitted assigns against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees, charges and disbursements, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, arising out of or relating to any claim of a third party:

a. alleging or relating to any bodily injury, death of any person or damage to real or tangible personal property caused by the willful or negligent or fraudulent or deceptive acts or omissions of Buyer or any Misrepresentations made by Buyer; or

b. relating to a purchase of a Good by any person purchasing directly or indirectly through Buyer and not directly relating to a claim of a breach of the Lifetime Limited Warranty; or

c. relating to any failure by Buyer or its personnel to comply with any applicable laws or these Terms; or

d. alleging that Buyer breached its agreement with a third party as a result of, or in connection with, entering into, performing under or terminating this Agreement.

17. Compliance with Law.

Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall comply with all export and import laws of all countries involved in the sale of Goods under this Agreement or any resale of Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on the Goods.

18. Termination.

In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer:

(i) fails to pay any amount when due under this Agreement and such failure continues for thirty (30) days after Buyer’s receipt of written notice of non-payment;
(ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or
(iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against its proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

19. Waiver.

No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

20. Confidential Information.

All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.

21. Force Majeure.

The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting transportation carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of ninety (90) days, Buyer shall be entitled to give notice in writing to Seller to terminate this Agreement.

22. Assignment.

Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.

23. Relationship of the Buyer and Seller.

The relationship between the Buyer and Seller is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Buyer and Seller, and neither the Buyer nor Seller shall have authority to contract for or bind the other party in any manner whatsoever.

24. No Third-Party Beneficiaries.

a. Subject to the next section 24(b) paragraph, this Agreement is for the sole benefit of the Buyer and Seller hereto and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.

b. The Parties hereby designate End Users (as defined in the Lifetime Limited Warranty) as third-party beneficiaries of the current Lifetime Limited Warranty as detailed on Seller’s website at https://qramp.com/warranty/.

25. Governing Law.

All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the Province of Ontario unless both the Buyer and Seller agree otherwise in writing. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

26. Choice of Forum.

The Buyer and the Seller will attempt in good faith promptly to resolve any dispute arising hereunder by negotiations between representatives of each respective party who have authority to settle the dispute. Any dispute not so resolved by negotiation may then be submitted to the courts of Ontario. Any legal suit, action, litigation or proceeding of any kind whatsoever in any way arising out of, from or relating to this Agreement and all contemplated transactions, shall be instituted in the courts of Ontario, and both the Buyer and the Seller irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation or proceeding unless both the Buyer and Seller agree otherwise in writing. The Buyer and Seller agree that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

27. Notices.

All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the Buyer and Seller at the addresses set forth on the face of the Sales Confirmation or to such other address (including electronic addresses) that may be designated by the receiving party in writing. Notices sent in accordance with this Section will be deemed effectively given:

a. when received, if delivered by hand, with signed confirmation of receipt;

b. when received, if sent by a nationally recognized overnight courier, signature required;

c. when sent, if by facsimile, with confirmation of transmission if sent during the addressee’s normal business hours, and on the next business day if sent after the addressee’s normal business hours;

d. when sent by electronic mail (“email”) provided the sender requests a read receipt (an email is deemed to be received 2 hours after the time sent (as recorded on the device from which the sender sent the email), unless the sender receives an automated message that the email has not been delivered, in which case resending the email is acceptable); and

e. on the ten (10) day after the date mailed by certified or registered mail by the applicable postal service or reputed courier, return receipt requested, postage prepaid.

28. Severability.

If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

29. Survival.

Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Confidential Information, Governing Law, Choice of Forum, and Survival.