Last Updated: July 18, 2019
1. INTRODUCTION.
1.1 Read Me. These Standard Terms for the Sale of Products and Services (the “Terms”) apply to your purchase of products and services from Progressive Automations Inc. ("Progressive Automations", “us” “we” or “our”) and contain very important information regarding your rights and obligations, as well as conditions, limitations, and exclusions that might apply to you. Please read these Terms carefully. By ordering products or services from us (whether through our website, by telephone, or otherwise), you confirm your acceptance of these Terms.
1.2 Incorporation and Conflict. These Terms are incorporated into all contracts for the supply of products and services by Progressive Automations. If there is a separate written agreement between us and you, these Terms will prevail over the separate written agreement in the event of a conflict unless that separate written agreement has been signed by an authorized representative of Progressive Automations and expressly provides that it prevails over these Terms.
1.3 Notice of Binding Arbitration; Waiver of Class Action. THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION IN SECTION 14 WHICH PROVIDES THAT YOU WILL RESOLVE ALL DISPUTES THROUGH MANDATORY AND BINDING ARBITRATION, UNLESS YOU OPT OUT THROUGH THE MECHANISM PROVIDED IN THESE TERMS OR ARE IN A PROVINCE, STATE, OR COUNTRY IN WHICH THE COURTS WILL NOT PERMIT YOU TO CONSENT TO BINDING ARBITRATION. THIS MEANS THAT, IN THE EVENT OF A DISPUTE WITH PROGRESSIVE AUTOMATIONS, YOU WILL NOT BE ABLE TO HAVE THAT DISPUTE RESOLVED BY A JUDGE OR A JURY. ADDITIONALLY, IN SECTION 14 OF THESE TERMS, YOU ALSO WAIVE YOUR RIGHT TO PARTICIPATE IN CLASS ACTIONS AGAINST PROGRESSIVE AUTOMATIONS. PLEASE CAREFULLY READ SECTION 14.
1.4 Age of Majority; Entities. By placing an order for products or services, you affirm that you are of legal age to enter into these Terms, and you accept and are bound by these Terms. If you place an order on behalf of an organization or company, you affirm (a) that you are authorized to bind any such organization or company to these Terms; and (b) such organization or company accepts and is bound by these Terms. In such a circumstance, the words “you” and “your” as used in these Terms will refer to and apply to both that entity and you personally.
1.5 Restriction. You may not order or obtain products or services from Progressive Automations if you: (a) do not agree to these Terms; (b) are not the older of (i) at least 18 years of age or (ii) legal age to form a binding contract with Progressive Automations; or (c) are prohibited from accessing or using this website or any of this website’s contents, products or services by applicable law.
1.6 Modifications. We may amend these Terms at any time in our sole discretion by posting the amended Terms on our website, which is currently located at www.progressiveautomations.com or www.progressiveautomations.ca, depending on your jurisdiction (either such website, the “Website”). Such amendment will become effective as of the “Last Updated” date posted on the Website. You are responsible for reviewing these Terms before purchasing any products or services from Progressive Automations. Your order of products or services on or after the “Last Updated” date or your continued use of the Website constitutes your acceptance of and agreement with such amendments.
1.7 Terms of Use. These Terms are an integral part of the Website Terms of Use that apply generally to the use of our Website. You should also carefully review our Website Privacy Policy before placing an order for products or services from us.
2. ORDER, ACCEPTANCE, CANCELLATION, AND PRODUCT INFORMATION.
2.1 Advertisements and Acceptance. Advertisements respecting our products and services are invitations to you to make offers to purchase products and services and are not offers to sell. You agree that your order is an offer to buy, under these Terms, all products and services listed in your order. A properly-completed order on our Website or with one of our sales representatives by you constitutes only your offer to purchase the products or services in your order, even if we have processed payment for such offer. All orders must be accepted by us or we will not be obligated to sell the products or services to you. We will confirm acceptance by sending you an acceptance confirmation email or otherwise an express written confirmation of acceptance. We may choose not to accept orders at our sole discretion, even after we send you a confirmation email with your order number and details of the items you have ordered. You must immediately notify us of any discrepancy between the details in the order confirmation email you receive and your actual order. Failure to notify us of such discrepancy within 24 hours of your order will result in you becoming bound to purchase the items as described in the order confirmation email.
2.2 Depictions of Products. Products may differ slightly from how depicted in any illustrations, photography or descriptions on our Website. We have endeavoured to display as accurately as possible the colours of our products as they appear on our Website. However, as the actual colours you see will depend on photographic processes and your screen, we cannot guarantee that your screen’s display of any colour will be accurate.
2.3 Product Changes. Our products and services may change or be discontinued at any time. Products and services that are delivered will have similar characteristics of the products and services you ordered, but non-material changes between what is delivered and what is described online are possible. We may ship products with minor specifications changes, provided that the characteristics of such product are materially the same as the ordered products.
2.4 Cancellation or Modification. No cancellation or modification of an order is effective until such time as Progressive Automations confirms acceptance of the cancellation or modification. Progressive Automations reserve the right, in its sole and arbitrary discretion, to reject any request for cancellation or modification of an order. You shall reimburse Progressive Automations for all reasonable costs and expenses incurred by Progressive Automations in connection with the cancellation or alteration of an order.
2.5 Availability. Delivery of products is subject to availability. If you have paid for a product but it is unavailable, we will notify you of the unavailability and either refund you the purchase price for such product or provide you with a replacement product of equal or greater value. Alternatively, you may keep your order until such time as the product becomes available again, subject to our right to cancel the order in the event the price of the product has materially changed upon becoming available.
2.6 Limited Quantities. Despite anything to the contrary in these Terms, we may impose a limit on the purchasable quantity of a particular product or service.
2.7 Promotional Offers. At our discretion, we may make available certain products or services at a discount or for free for a trial period (“Promotions”). We reserve the right to modify or cancel these Promotions at any time. If we reasonably determine you have violated the terms applicable to the Promotion, we may charge you the full price for the product or service that was otherwise subject to the Promotion.
3. BLANKET ORDERS.
3.1 At our discretion, we may agree to divide your order into separate scheduled shipments on the following terms:
(a) Shipments may be scheduled no more than 12 months later than the date we receive your order;
(b) Shipment dates may be modified only in accordance with the following terms:
(i) A modified shipment must be within the same blanket order period (typically a 12 month period);
(ii) Shipment dates may not be delayed unless we have received at least 48 hours notice prior to the scheduled shipping release date; and
(iii) Shipment dates may not be accelerated without our prior written consent.
(c) Any changes to your order or shipment schedule may be subject to additional charges;
(d) Any cancellation of a scheduled shipment will be subject to a cancellation charge equal to an amount no less than 25%, and no greater than 100%, of the price of the products that were included in such shipment (as determined by Progressive Automations in its sole discretion);
(e) Such other terms as we may specify in writing.
4. PRICES AND PAYMENT TERMS.
4.1 Prices. All prices, discounts, and promotions posted on this Website or in any of our catalogues or promotional materials are subject to change without notice. The price charged for a product or service will be clearly stated in your order confirmation email. Price increases will only apply to orders placed after the time of the increase. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your total price and will be itemized in your shopping cart (for web based orders) and in your order confirmation email. We strive to display accurate price information, however, we may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.
4.2 Terms of Payment. Terms of payment are within our sole discretion and, unless otherwise agreed by us in writing, payment must be received by us before our acceptance of an order. If we have agreed to net terms (i.e. payment in arrears), we will invoice you for your order and invoices are due and payable within the time stated on your invoice. Partial shipments of an order may be invoiced separately from other parts of your order.
4.3 Late Payments. Excluding invoices you have successfully disputed, we may charge late payment interest of 26.8% per year calculated daily and compounded monthly or the maximum rate permitted by law, whichever is less, on all late payments. Without waiving any of our other rights or remedies, we may refuse additional orders and suspend any shipments or services until all overdue amounts are paid in full, and if any amounts remain outstanding for over a year we may cancel any outstanding orders and you shall pay a cancellation fee equal to an amount no less than 25%, and no greater than 100%, of the price of the products that were included in such cancelled order (as determined by Progressive Automations in its sole discretion). You shall also reimburse us for all costs and expenses incurred in collecting any late payments, including legal fees.
4.4 Invoice Disputes. This Section 4.4 applies if we have invoiced you for your order. You shall notify us in writing of any dispute with any invoice (along with substantiating documentation) within five business days from your receipt of the disputed invoice (“Invoice Dispute Period”). You will be deemed to have accepted all invoices unless we receive notice of your dispute within the Invoice Dispute Period, and you shall pay all undisputed amounts due under such invoices by the payment date specified in such invoices. The Parties shall seek to resolve all such disputes promptly and in good faith. Notwithstanding anything to the contrary, you shall continue performing your obligations under these Terms during any such dispute, including, without limitation, your obligation to pay all due and undisputed invoice amounts.
4.5 Payment Method. We accept PayPal, American Express, Visa, Mastercard, JCB Card, Discover Card, Wire Transfer, and EFT/ACH for all purchases (unless we notify you otherwise). Subject to our written approval, we may also accept payment by cheque. You represent and warrant that if you pay by credit card: (a) the credit card information you supply to us is true, correct and complete; (b) you are duly authorized to use such credit card for the purchase; (c) charges incurred by you will be honoured by your credit card company; and (d) you will pay charges incurred by you, including shipping and handling charges and all applicable taxes.
4.6 No Set-Off. Except with our express written consent, you shall not, and have no right to, withhold, offset, recoup, or debit any amounts owed (or to be owed) to Progressive Automations, whether under these Terms or otherwise, against any other amount owed (or to be owed) by us to you for any reason, including, without limitation, relating to our breach or non-performance of these Terms, any order you make, any alleged claim, claim, or judgment you have against us, or any other agreement between us and you.
4.7 Purchase Money Security Interest. If you have not paid in full for a product at the time of shipment, you hereby grant Progressive Automations a security interest in such product and the proceeds therefrom to secure your payment obligations under these Terms. You acknowledge that the security interest granted under this Section 4.7 is a purchase money security interest under British Columbia law. Progressive Automations may file a financing statement for such security interest, and you will execute any documentation necessary to perfect Progressive Automation’s security interest in such product.
5. SHIPMENTS; DELIVERY; TITLE AND RISK OF LOSS.
5.1 Shipment. We will arrange for shipment of the products to you. Please check the individual product page or speak with one of our customer service representatives for specific delivery options. You will pay all shipping and handling charges prior to shipment of your order unless otherwise specified in the order confirmation. For more information concerning our shipping policies and your shipping options, please see our Shipping Policy. Each shipment will constitute a separate sale, and you shall pay for the products shipped whether such shipment is in whole or partial fulfilment of your order, including, without limitation, shipments under Section 3.
5.2 Title and Risk of Loss. Title and risk of loss pass to you upon our transfer of the ordered products to the carrier or other provider of shipment services.
5.3 Delivery Dates. Shipping and delivery dates are estimates only and cannot be guaranteed. Shipping and delivery of products are subject to delay. We are not liable for any delays in shipments or deliveries. You may cancel your order by providing us notice if your order has not shipped within 35 days after the estimated shipment date.
5.4 Rejection of Delivery. This section 5.4 applies to Custom Orders. Refusing delivery of a product does not release you of your payment obligations for such product (including, without limitation, shipping and handling fees).
6. RETURNS AND REFUNDS.
6.1 Procedure. Except for any products designated by us as non-returnable, we will accept a return of the products for a refund of your purchase price, less the original shipping and handling costs, or an exchange for a product of equal or lesser value, provided such return is made within 30 days of delivery with valid proof of purchase and provided such products are returned in their original condition. To return products, you must:
(a) call 1-800-676-6123 or email our Returns Department at sales@progressiveautomations.com to indicate whether you will be seeking an exchange or a refund of the product and to obtain a Return Merchandise Authorization (”RMA”) number before shipping your product. No returns of any type will be accepted without an RMA number;
(b) Include the RMA number on the outside of the package or RMA invoice inside the package; and
(c) Ship the package back to us.
6.2 Shipping and Handling. You are responsible for all shipping and handling charges on returned items unless otherwise specified. Reasonable shipping and handling charges will be refunded to you in the case of a defective product or error on our part with respect to the returned product. You bear the risk of loss during shipment. We, therefore, strongly recommend that you fully insure your return shipment against loss or damage and that you use a carrier that can provide you with proof of delivery for your protection. All returns are subject to a 5% restocking fee, except if the product is returned due to a material defect or error on our part.
6.3 Processing Time. Refunds and exchanges are processed within approximately seven business days of our receipt of the returned product. In the case of refunds for purchases by credit card, your refund will be credited back to the same payment method used to make the original purchase. WE OFFER NO REFUNDS ON ANY PRODUCTS DESIGNATED BY US AS NON-RETURNABLE.
6.4 Custom Orders. Except for warranty claims under Section 8, products ordered as part of a Custom Order are non-returnable.
7. INTELLECTUAL PROPERTY RIGHTS.
Progressive Automations is and will remain the sole and exclusive owner of all intellectual property rights (such as copyrights, patents, trademarks, and industrial designs) in and to each product sold to you and any related specifications, instructions, documentation, or other materials. You do not have and will not acquire any ownership of intellectual property rights in or to the products sold to you by us.
8. LIMITED WARRANTY & DEFECTIVE PRODUCTS.
8.1 Product Warranty. We warrant to you that all products purchased from us will materially conform to the product’s manufacturer’s published specifications as of the date of shipment and be free from material defects in material and workmanship for the applicable period set out in the table below measured from the date of shipment (”Warranty Period”). The Warranty Period for a product purchased from us will depend on its classification in the table below.
|
Product |
Warranty Period (From Date of Shipment) |
|
Linear Actuators |
18 Months |
|
Control Systems |
18 Months |
|
PLC Controls |
18 Months |
|
Mounting Brackets |
60 Months |
|
Table Lifts |
60 Months |
|
Power Supplies |
18 Months |
|
Actuator Parts |
18 Months |
|
Accessories |
18 Months |
8.2 Disclaimer. EXCEPT FOR THE WARRANTY IN SECTION 8.1, WE MAKE NO WARRANTY WHATSOEVER (WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE) REGARDING THE PRODUCTS OR SERVICES PURCHASED FROM US, INCLUDING WITHOUT LIMITATION ANY: (a) WARRANTY OR CONDITION OF MERCHANTABILITY; (b) WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OR CONDITION OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY. WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT ANY PRODUCT WILL MEET YOUR SPECIFIC NEEDS, WORK IN ANY PARTICULAR ENVIRONMENT, WILL PERFORM WITHOUT INTERRUPTION OR BE ERROR FREE, OR WILL WORK IN CONJUNCTION WITH YOUR DEVICES OR EQUIPMENT.
THE PRODUCT WARRANTY IN SECTION 8.1 APPLIES ONLY TO THE BUYER OF THE PRODUCT UNDER THESE TERMS AND DOES NOT APPLY TO ANY THIRD PARTY (INCLUDING WITHOUT LIMITATION ANY CUSTOMER OF THE BUYER).
8.3 Conditions. Our liability for the breach of the warranty in Section 8.1 is conditional upon:
(a) you providing us with written notice of the defective product with a reasonable description of the deficiency within 14 days of the time when you discovered or ought to have discovered the defect (the “Claim Notice”);
(b) you returning the defective product to our place of business, at your own expense, together with an RMA issued by us. Call 1-800-676-6123 or email our Warranty Department at sales@progressiveautomations.com to obtain a Return Merchandise Authorization (also an “RMA”) number before shipping your product;
(c) you providing us a reasonable opportunity after receiving the Claim Notice to examine such products at our place of business; and
(d) us reasonably verifying that the returned product is defective.
8.4 Limitations. We will not be liable for a breach of the warranty in Section 8.1 if:
(a) you make any further use of such products after you deliver to us a Claim Notice;
(b) the defect arises because you failed to follow our or the manufacturer’s oral or written instructions or guidelines as to, or you were negligent with respect to, the storage, handling, installation, transportation, assembly, commissioning, use, or maintenance of the products;
(c) the defect arises from use or storage in an extremely hazardous environment;
(d) you alter, tamper, or repair such products without our prior written consent; or
(e) such product is disassembled, packed, or shipped back to us improperly.
Without limiting the generality of Section 8.4(c), for the purposes of this Agreement “use in an extremely hazardous environment” includes, without limitation:
(i) use outside of a product’s rated International Protection Rating;
(ii) use in temperatures higher or lower than the product’s temperature rating;
(iii) use in extreme weather events, such as hurricanes, tropical storms, typhoons, blizzards, or electrical storms; and
(iv) use in radioactive environments, unless the product is approved for such use.
8.5 Product Remedy. Subject to Section 8.3 and Section 8.4, with respect to any products that are the subject of a Claim Notice during the Warranty Period, we shall, in our sole discretion, repair or replace such products (or the defective part) and ship them to you at our cost.
8.6 Exclusive Remedy. THE REMEDIES IN SECTION 8.5 WILL BE YOUR SOLE AND EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTION 8.1. UNDER NO CIRCUMSTANCES WILL PROGRESSIVE AUTOMATIONS BE LIABLE FOR REMOVAL OF ANY PRODUCT FROM YOUR DEVICES, EQUIPMENT, OR FACILITIES OR FOR ANY REINSTALLATION OR ASSEMBLY OF A PRODUCT.
8.7 No Breach. If we receive a Claim Notice and, after our investigation, we determine that there has been no breach of Section 8.1, you are responsible for the costs associated with the RMA evaluation and return shipping costs.
8.8 Alternative Warranty. Notwithstanding Sections 8.1 to 8.6, if Progressive Automations has agreed in writing to provide you with a warranty for a product which warranty differs from that described in Sections 8.1 to 8.6 (an “Alternate Warranty”), then the Alternate Warranty will operate in substitution for Sections 8.1 to 8.6 and Sections 8.1 to 8.6 will be of no force or effect with respect to the product subject to the Alternate Warranty. For greater certainty, the “Warranty Terms” posted on our Website is not an Alternate Warranty.
9. LIMITATION OF LIABILITY; ASSUMPTION OF RISK
9.1 Exclusion of Liability. NEITHER PROGRESSIVE AUTOMATIONS NOR ITS REPRESENTATIVES ARE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR AGGRAVATED DAMAGES, OR LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, WHETHER ARISING OUT OF OR RELATING TO ANY PRODUCT OR SERVICE, ANY BREACH OF THESE TERMS, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT PROGRESSIVE AUTOMATIONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER PROGRESSIVE AUTOMATIONS NOR ITS REPRESENTATIVES ARE LIABLE FOR ANY OMISSIONS, ERRORS, OR INACCURACIES IN ANY INFORMATION OR MATERIALS MADE AVAILABLE TO YOU AND NEITHER PROGRESSIVE AUTOMATIONS NOR ITS REPRESENTATIVES HAVE LIABILITY FOR YOUR INTERPRETATION, MISINTERPRETATION, OR APPLICATION OF ANY INFORMATION OR MATERIALS WE MAKE AVAILABLE.
9.2 Liability Cap. IN NO EVENT WILL PROGRESSIVE AUTOMATIONS’ OR ITS REPRESENTATIVES’ AGGREGATE LIABILITY EXCEED THE AMOUNTS PAID BY YOU FOR THE PRODUCTS AND SERVICES SUPPLIED BY US UNDER THESE TERMS, WHETHER SUCH LIABILITY ARISES OUT OF OR IS RELATED TO ANY PRODUCT OR SERVICE, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE.
9.3 Assumption of Risk. WITHOUT LIMITING THE GENERALITY SECTION 9.1 AND 9.2:
(a) YOU ASSUME ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY PRODUCTS IN THE PRACTICE OF ANY PROCESS OR OTHERWISE, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY US, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE PRODUCTS; and
(b) YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR THE APPLICATION, USE, AND OPERATION OF ANY PRODUCTS, WHETHER OR NOT SUCH APPLICATION, USE, OR OPERATION HAS BEEN APPROVED OR AUTHORIZED BY PROGRESSIVE AUTOMATIONS.
10. TESTING.
Prior to any application or use of any product supplied pursuant to these Terms, you shall at your own expense conduct, or shall cause to be conducted, in accordance with best industry standards comprehensive testing of each such product to verify that each such product is safe and suitable for your intended application or use of such product and to verify that such product meets or exceeds all applicable industry standards and regulations for your intended application or use.
11. CONFIDENTIALITY.
11.1 Confidential Information. We may disclose or make available to you information about our business affairs, products, and services, confidential information, and materials comprising or relating to intellectual property rights, trade secrets, third-party confidential information and other sensitive or proprietary information, such as pricing information, whether or not marked, designated or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure and as established by documentary evidence:
(a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 11 by you;
(b) is or becomes available to you on a non-confidential basis from a thirdparty source, so long as such third party is not and was not prohibited from disclosing such Confidential Information;
(c) was known by you or in your possession before it was disclosed to you by us;
(d) is required to be disclosed under applicable law or court order.
11.2 Non-Disclosure. You shall keep and maintain all Confidential Information in strict confidence and shall protect the Confidential Information with at least the same degree of care (and in any event no less than reasonable care) that you use to protect your own confidential and proprietary information. You shall not disclose or permit your personnel to disclose any Confidential Information (or summaries thereof) to the public or any third party without the prior written consent of Progressive Automations. You are responsible for any breach of this Section 11 by any of your employees, contractors, directors, officers, agents, shareholders, or other representatives.
12. COMPLIANCE WITH LAWS.
12.1 Compliance Generally. You shall at all times comply with all laws, regulations, by-laws, and court orders applicable to these Terms, your obligations under these terms, and your use or sale of any product or service. Without limiting the generality of the foregoing, you shall:
(a) at your own expensive maintain all certifications, credentials, licenses, and permits necessary to conduct your business relating to the purchase or use of our products or services; and
(b) not engage in any activity or transaction involving any product or service that violates any law, regulation, by-law, or court order, whether by way of shipment, use, or otherwise.
12.2 Export Controls. The products licensed or sold under these Terms are subject to applicable Canadian, United States and other export control laws and regulations, and you agree you are responsible for ensuring compliance with such laws and regulations. Without limiting the generality of the previous sentence, you acknowledge and agree that you may be required to obtain export permits to export products on Canada’s Export Control List, or to a country on Canada’s Area Control List or if the products are of United States origin.
12.3 No Corruption of Foreign Public Officials. You and your directors, officers, employees, and agents are, and have always been, in compliance with the Corruption of Foreign Public Officials Act (S.C. 1998, c. 34) (“CFPOA”). Without limiting the generality of the foregoing, you shall, and shall cause your directors, officers, employees, and agents to comply with CFPOA.
13. GOVERNING LAW.
These Terms and all matters related to them are governed by the law of the Province of British Columbia and Canada therein, without giving effect to: (a) any choice or conflict of law provision or rule (whether of the Province of British Columbia or any other jurisdiction); or (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods.
14. DISPUTES.
14.1 Arbitration. If the courts in your province, state, or country will not permit you to consent to binding arbitration, then any legal suit, action, or proceeding arising out of or related to these Terms will be instituted exclusively in the courts of the Province of British Columbia, Canada, and you irrevocably submit to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Otherwise, you agree that in the event of any dispute between you and Progressive Automations arising out of or relating to these Terms, any products or services we make available, or the relationship between Progressive Automations and you, that you and Progressive Automations shall consult and negotiate with each other and, recognizing your mutual interests, attempt to reach a solution satisfactory to both you and Progressive Automations. If you and Progressive Automations do not reach settlement within a period of 60 days, then such dispute shall be referred to and finally resolved by mandatory and binding arbitration under the International Commercial Arbitration Rules of Procedure of the British Columbia International Commercial Arbitration Centre. The appointing authority shall be the British Columbia International Commercial Arbitration Centre. The case shall be administered by the British Columbia International Commercial Arbitration Centre in accordance with its Rules. The place of arbitration shall be Vancouver, British Columbia, Canada. The number of arbitrators shall be set to one unless otherwise required by the Rules. The language of the arbitration will be English. The existence and content of the arbitration proceedings, including documents submitted by the parties, correspondence to and from the British Columbia International Commercial Arbitration Centre, correspondence to and from the arbitrator, and orders and awards issued by the sole arbitrator, shall remain strictly confidential and shall not be disclosed to any third party (except for professional advisors) without the express written consent from the other party unless: (a) (i) the disclosure to the third party is reasonably required in the context of conducting the arbitration proceedings; and (ii) the third party agrees unconditionally in writing to be bound by the confidentiality obligation stipulated herein; or (b) such disclosure is required by applicable law or court order.
You may opt out of the above arbitration clause. If you opt out, then neither you nor we will be able to require the other to participate in arbitration for the purposes of resolving any dispute, claim or controversy between you and Progressive Automations arising out of or relating to these Terms, any products or services we make available, or the relationship between Progressive Automations and you. To opt out, you must, within 30 days of accepting these Terms, deliver to Progressive Automations a clear written statement indicating that you wish to opt out of the arbitration provisions in these Terms. The statement must contain: (a) your name; (b) your mailing address; (c) your telephone number; (d) your email address; and (e) your Account name (if any). The opt-out statement must be delivered to the following address:
Progressive Automations Inc.
6691 Elmbridge Way #160
Richmond, British Columbia
V7C 4N1
If you opt out of the arbitration clause in the manner provided above, then you irrevocably agree that the courts of British Columbia will have exclusive jurisdiction to settle any dispute, claim, or controversy arising out of or related to these Terms, any products or services we make available, or the relationship between Progressive Automations and you.
14.2 Waiver of Class Action and Jury Trial. You hereby agree to waive any right you may have to commence or participate in any class action against Progressive Automations related to any claim and, where applicable, you also agree to opt out of any class proceedings against Progressive Automations. Where applicable, if a dispute arises between us and you, you hereby waive any right you may have to participate in a trial by jury with respect to that dispute.
15. DEFINITIONS
“Custom Order” means:
(a) an order for a product that is:
(i) custom made by Progressive Automations based in part or in whole on specifications provided by you; or
(ii) not in stock with Progressive Automations at the time of the order;
(b) a large or specialized order as determined by Progressive Automations in its sole and arbitrary discretion.
“Representatives” means Progressive Automations’ employees, officers, directors, partners, shareholders, agents, lawyers, third-party advisors, successors and permitted assigns.
16. GENERAL
16.1 Force Majeure. No delay, failure, or default on Progressive Automation’s part will constitute a breach of these Terms to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, national emergency, revolution, epidemic, restraints or delays affecting carriers, inability or delay in obtaining supplies or suitable materials, or other causes beyond our reasonable control.
16.2 No Third-Party Beneficiaries. These Terms do not and are not intended to confer any legal, equitable, or other rights or remedies upon any person or entity other than you. For greater certainty, no person other than you may avail itself of the warranties described in Section 8.
16.3 Relationship. The relationship between Progressive Automations and you will be that of independent contractors, and neither of us nor any of our respective officers, agents or employees will be held or construed to be partners, joint ventures, fiduciaries, employees or agents of the other as a result of these Terms or your use of our Website.
16.4 No Waiver. The failure of Progressive Automations to assert a right hereunder or to insist upon compliance with any term or condition will not constitute a waiver of that right or excuse any subsequent non-performance of any such term or condition by you.
16.5 Headings. The headings used in these Terms are included for convenience only and will not limit or otherwise affect these Terms.
16.6 Severability. If any term or provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
16.7 Assignment. We may assign these Terms in part or in their entirety, including our rights, interests, and obligations hereunder, without notice to you or your consent. These Terms are personal to you and you may not assign these Terms nor your rights, interests, or obligations under these Terms to any person without our express written consent.
16.8 Entire Agreement. Subject to section 16.9, this Agreement, together with our Privacy Policy, Website Terms of Use, and any other agreement incorporated by reference, constitutes the sole and entire agreement between you and Progressive Automations regarding the subject matter herein and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
16.9 Supplemental Contract. These Terms are subject to any other written and duly executed contract you may have with Progressive Automations if such contract expressly supersedes these Terms.
16.10 Language. The parties acknowledge that they have required that the Terms and all related documents be prepared in English. Les parties reconnaissent avoir exigé que les présentes modalités de vente et tous les documents connexes soient rédigés en anglais.
16.11 Enurement. These Terms will enure to the benefit of and be binding upon the parties to these Terms and their respective successors, heirs, and permitted assigns.
16.12 Survival. Sections 4.6, 5.2-5.4 7, 8.2, 8.6, 8.7, 8.9, 9, 10, 11, 12, 13, 14, 16 and all other provisions of these Terms which must survive termination to fulfill their purpose, will survive termination or expiration of these Terms.
16.13 Equitable Relief. You hereby acknowledge and agree that any breach by you of these Terms would result in harm to Progressive Automations, and that Progressive Automations could not be adequately compensated for such harm by monetary award. Accordingly, you hereby agree that in the event of any such breach, in addition to all other remedies available to Progressive Automations at law or equity, Progressive Automations will be entitled as a matter of right, and without posting bond or proving damages, to, notwithstanding Section 14, apply to any court of competent jurisdiction for such equitable relief by way of restraining order, injunction, decree or otherwise as may be appropriate to ensure compliance by you with these Terms.
16.14 Consumer Rights. Nothing in these Terms affects consumer rights that, pursuant to applicable law, cannot be limited or waived.
16.15 Notice. We may give you notice at the email address (or if no email address, other contact information) you provide to Progressive Automations during the sale or registration process. Except as otherwise stated herein, you may give us notice by letter at:
Progressive Automations Inc.
6691 Elmbridge Way #160
Richmond, British Columbia
V7C 4N1