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Terms and Conditions of Glissner Product Sales and Service

Introduction

GLISSNER's sale of Products and Support and GLISSNER's license of Software are governed by these GLISSNER Terms and Conditions of Sale and Service.

1. Definitions

  1. GLISSNER is the operating name of Canada Corporation 11958267 Canada Inc. GLISSNER and 11958267 Canada Inc. may be used interchangeably through this Agreement.
  2. Delivery means standard GLISSNER shipping to and arrival at the receiving area at the "Ship To" address specified in Customer's order.
  3. Exhibits means attachments that describe or otherwise apply to the sale or license of Products or Support.
  4. Products means hardware, Software, documentation, accessories, supplies, parts and upgrades that are determined by GLISSNER to be available from GLISSNER upon receipt of Customer's order.
  5. Custom Products means Products modified, designed or manufactured to meet Customer requirements.
  6. Software means one or more programs capable of operating on a controller, processor or other hardware Product ("Device") and related documentation. Software is either a separate Product, included with another Product ("Bundled Software"), or fixed in a device and not removable in normal operation ("Firmware").
  7. Specifications means specific technical information about GLISSNER Products which is published in GLISSNER Product manuals and technical data sheets in effect on the date GLISSNER ships Customer's order.
  8. Support means hardware maintenance and repair; Software updates and maintenance; training; and other standard support services provided by GLISSNER.
  9. Custom Support means any agreed non-standard Support, including consulting and custom project services.
  10. Down Payment means the agreed-upon payment that must be made by Customer for this Agreement to go into effect, and shall be applied as a credit to the final purchase price as per the purchase agreement.

2. Prices

  1. Prices are valid for the period quoted by GLISSNER or for the applicable purchase agreement ordering period, whichever expires first. Prices may be changed at GLISSNER’s sole discretion at any time before the Down Payment is paid and this Agreement is executed. Change orders that extend Delivery beyond those validity periods become new orders at prices in effect when GLISSNER receives the change orders. Support prices, except for Custom and prepaid Support, may be changed by GLISSNER upon 15 days written notice.
  2. Prices are exclusive of, and Customer will pay, applicable sales, use, service, value added or like taxes, unless Customer has provided GLISSNER with an appropriate exemption certificate for the Delivery jurisdiction.

3. Orders

All orders are subject to acceptance by GLISSNER.

  1. Customer will specify Ship To addresses within the country where the order is placed, unless otherwise agreed.
  2. Customer may cancel orders for Products (except Custom Products) prior to shipment at no additional charge. Customer will pay all charges for returning Products to GLISSNER's shipping location if Product orders are cancelled after shipment.

4. Delivery

GLISSNER will make reasonable efforts to meet Customer's Delivery requirements. If GLISSNER is unable to meet Customer's Delivery requirements, alternative arrangements may be agreed. In the absence of such agreement, Customer's sole remedy is to cancel the order.

5. Shipment, risk of Loss or Damage, and title

GLISSNER will ship according to GLISSNER's standard commercial practice, and risk of loss or damage and title will pass from GLISSNER to Customer at the Ship To address. Shipping and handling charges will be listed separately on GLISSNER's invoice when not included in the Product's purchase price. If Customer requests special packing or shipping instructions are agreed to by GLISSNER, charges will be billed separately to Customer, and risk of loss or damage and title will pass to Customer on delivery to Customer's carrier or designate.

6. Installation and acceptance

  1. Product installation information is available with Products or upon request. Installation by GLISSNER, when included in the purchase price, is complete when the Product passes GLISSNER's installation and test procedures.
  2. For Products without installation included in the purchase price, acceptance by Customer occurs upon Delivery. For Products with installation included in the purchase price, acceptance by Customer occurs upon completion of installation by GLISSNER. If Customer schedules or delays installation by GLISSNER more than 30 days after Delivery, Customer acceptance of the Product(s) will occur on the 31st day after Delivery.

7. Payment

  1. Full Payment is due on the invoice date to secure the order. GLISSNER may change credit or payment terms at any time when, in GLISSNER's opinion, Customer's financial condition, previous payment record, or the nature of Customer's relationship with GLISSNER so warrants.
  2. GLISSNER may discontinue performance if Customer fails to pay any sum due, or fails to perform under this or any other GLISSNER agreement if, after 10 days written notice, the failure has not been cured.

8. Warranty

  1. Product warranty period and additional information is available with products or upon request.
  2. Products purchased from GLISSNER will receive the standard warranty in the country of purchase. If Customer moves such Products to another country where GLISSNER has Support presence, then Customer will receive the destination country standard warranty.
  3. The warranty period begins on the date of Delivery, or the date of installation if installed by GLISSNER. If Customer schedules or delays installation by GLISSNER more than 30 days after Delivery, the warranty period begins on the 31st day after Delivery.
  4. GLISSNER warrants GLISSNER hardware Products against defects in materials and workmanship. GLISSNER further warrants that GLISSNER hardware Products conform to Specifications.
  5. GLISSNER warrants that Software will not fail to execute its programming instructions due to defects in materials and workmanship when properly installed and used on the Device(s) designated by GLISSNER. GLISSNER further warrants that GLISSNER owned standard Software will substantially conform to Specifications.
  6. GLISSNER does not warrant that the operation of Products will be uninterrupted or error free.
  7. If GLISSNER receives notice of defects or non-conformance to hardware Specifications, or substantial non-conformance to GLISSNER owned standard Software Specifications during the warranty period, GLISSNER will, at its option, repair or replace the affected Products. If GLISSNER is unable, within a reasonable time, to repair, replace or correct a defect or non-conformance in a Product to a condition as warranted, Customer will be entitled to a refund of the purchase price upon prompt return of the Product to GLISSNER. GLISSNER will pay expenses for return of such Products to GLISSNER.
  8. GLISSNER warrants that GLISSNER Support will be provided in a professional and workmanlike manner. GLISSNER will replace, at no charge, parts which are defective and returned to GLISSNER within 2 years of Delivery.
  9. Some newly manufactured GLISSNER Products may contain and use remanufactured parts which are equivalent to new in performance.
  10. The above warranties do not apply to defects resulting from improper or inadequate maintenance by Customer; Customer or third party supplied software, interfacing or supplies; unauthorized modification; improper use or operation outside of the Specifications for the Product; abuse, negligence, accident, loss or damage in transit; improper site preparation; or unauthorized maintenance or repair.
  11. THE ABOVE WARRANTIES ARE EXCLUSIVE AND NO OTHER WARRANTY, WHETHER WRITTEN OR ORAL, IS EXPRESSED OR IMPLIED. TO THE EXTENT PERMITTED BY LAW, GLISSNER SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT.

9. Support

  1. Customer may order Support from GLISSNER's based on current Support offerings. Some Support (and related Products) may not be available in all countries. Orders for Support are subject to the terms of the Support Exhibit or quotation in effect on the date of order.
  2. To be eligible for Support, Products must be at current specified revision levels and, in GLISSNER's reasonable opinion, in good operating condition.
  3. GLISSNER may, at no additional charge, modify Products to improve operation, supportability and reliability, or to meet legal requirements.
  4. Relocation of Products is Customer's responsibility. Relocation may result in additional Support charges and modified service response times. Support of Products moved to another country is subject to availability.
  5. GLISSNER will provide Support for products not supplied by GLISSNER when approved by GLISSNER in writing. GLISSNER will provide Support for GLISSNER Products when Customer allows GLISSNER to perform modifications if requested by GLISSNER under Section 9. c) above. Customer is responsible for removing any products not eligible for Support to allow GLISSNER to perform Support services. If Support services are made more difficult because of such product(s), GLISSNER will charge Customer for the extra work at GLISSNER's standard rates.
  6. Support does not cover any damage or failure caused by:
    1. use of non-GLISSNER media, supplies and other products
    2. site conditions that do not conform to GLISSNER's site specifications.
    3. neglect, improper use, fire or water damage, electrical disturbances, transportation by Customer, modification by people other than GLISSNER employees or subcontractors, or other causes beyond GLISSNER's control
    4. inability of any non-GLISSNER products in Customer's environment to correctly process, provide or receive date data (i.e., representations for month, day, and year), and to properly exchange date data with the Products supplied by GLISSNER.

10. Licenses

"Use" means storing, loading, installing, executing or displaying Software on a Device. "Software License" means the Use authorization(s) for the Software specified by GLISSNER in its quotation, invoice or other documentation. Each Software License has a corresponding License Fee.

"License Fee" means the fee or fees designated by GLISSNER for Use of Software. Different License Fees may apply to particular Software if more than one Software License is available for that Software.

  1. In return for the License Fee, GLISSNER grants Customer a non- exclusive license to Use the object code version of the Software listed in Customer's order in conformance with
    1. the terms set forth herein; and
    2. Use restrictions and authorizations for the Software specified by GLISSNER in its quotation, invoice or terms that accompany the Software; and
    3. GLISSNER's third party suppliers' terms that accompany the Software. In the event of a conflict, the third party suppliers' terms that accompany the Software will take precedence over the Use restrictions and authorizations specified by GLISSNER and the terms set forth herein, and the Use restrictions and authorizations specified by GLISSNER will take precedence over the terms set forth herein.
  2. Unless otherwise specified, in return for the applicable License Fee, GLISSNER grants Customer a license to Use one copy of the Software on one Device at any one time.
  3. Unless otherwise specified, all Software Licenses will be perpetual unless terminated or transferred in accordance with Section 10.
  4. Software is owned and copyrighted by GLISSNER or by third party suppliers. Customer's Software License confers no title or ownership and is not a sale of any rights in the Software. Third party suppliers may protect their rights in the Software in the event of any infringement.
  5. Bundled Software or Firmware provided to Customer may only be used when operating the associated Device in configurations as sold or subsequently upgraded by GLISSNER. Customer may transfer Firmware only upon transfer of the associated Device.
  6. Updates, upgrades or other enhancements are available under GLISSNER Support agreements. GLISSNER reserves the right to require additional licenses and fees for Use of the Software on upgraded Devices.
  7. Customer will not modify, disassemble or decompile the Software without GLISSNER's prior written consent. Where Customer has other rights under statute, Customer will provide GLISSNER with reasonably detailed information regarding any intended disassembly or decompilation. Customer will not decrypt the Software unless necessary for legitimate use of the Software.
  8. GLISSNER may terminate Customer's or any transferee's or sublicensee's Software License upon notice for failure to comply with any applicable Software License terms.

11. Intellectual property rights

  1. GLISSNER will defend or settle any claim against Customer, (or third parties to whom Customer is authorized by GLISSNER to resell or sublicense), that Products or Support (excluding Custom Products and Custom Support), delivered under these GLISSNER Terms and Conditions of Sale and Service infringe a patent, utility model, industrial design, copyright, trade secret, mask work or trademark in the country where Products are used, sold or receive Support, provided Customer
    1. promptly notifies GLISSNER in writing; and
    2. cooperates with GLISSNER in, and grants GLISSNER sole control of the defense or settlement
  2. GLISSNER will pay infringement claim defense costs, settlement amounts and court-awarded damages. If such a claim appears likely, GLISSNER may modify the Product, procure any necessary license, or replace it. If GLISSNER determines that none of these alternatives is reasonably available, GLISSNER will refund Customer's purchase price upon return of the Product if within one year of Delivery, or the Product's net book value thereafter.
  3. These terms state GLISSNER's entire liability for claims of intellectual property infringement.

12. Limitation of Liability and Remedies

  1. Products are not specifically designed, manufactured or intended for saleas parts, components or assemblies for the planning, construction, maintenance, or direct operation of a nuclear facility. Customer is solely liable if Products or Support purchased by Customer are used for these applications. Customer will indemnify and hold GLISSNER harmless from all loss, damage, expense or liability in connection with such use.
  2. To the extent GLISSNER is held legally liable to Customer, GLISSNER's liability is limited to:
    1. payments described in Sections 8. i) and 11. b) above;
      1. damages for bodily injury;
      2. direct damages to tangible property up to a limit of the feespaid under contract to GLISSNER;
      3. other direct damages for any claim based on a material breach of Support services, up to a maximum of 12 months of the related Support charges paid by Customer during the period of material breach; and
      4. other direct damages for any claim based on a material breach of any other term of these GLISSNER Terms and Conditions of Sale and Service, up to a limit of US$1,000,000 or the amount paid to GLISSNER for the associated Product, whichever is less.
      5. Notwithstanding Section 12. b) above, in no event will GLISSNER or its affiliates, subcontractors or suppliers be liable for any of the following:
    2. actual loss or direct damage that is not listed in 12. b) above;
      1. damages for loss of data, or software restoration;
      2. damages relating to Customer's procurement of substitute products or services (i.e., "cost of cover"); or
      3. incidental, special or consequential damages (including downtime costs or lost profits, but excluding payments described in Section 11. above and damages for bodily injury).
      4. THE REMEDIES IN THESE GLISSNER TERMS AND CONDITIONS OF SALE AND SERVICE ARE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES.

13. GENERAL

  1. Transactions may be conducted through Electronic Data Interchange ("EDI") or other electronic methods, as agreed.
  2. GLISSNER will not be liable for performance delays or for non-performance, due to causes beyond its reasonable control.
  3. If either party becomes insolvent, is unable to pay its debts when due, files for bankruptcy, is the subject of involuntary bankruptcy, has a receiver appointed, or has its assets assigned, the other party may cancel any unfulfilled obligations.
  4. Neither party may assign any rights or obligations hereunder without prior written consent of the other party.
  5. Customer who exports, re-exports or imports Products, technology or technical data purchased hereunder, assumes responsibility for complying with applicable laws and regulations, and for obtaining required export and import authorizations. GLISSNER may suspend performance if Customer is in violation of applicable regulations.
  6. Disputes arising in connection with these GLISSNER Terms and Conditions of Sale and Service will be governed by the laws of Ontario, Canada.
  7. Provisions herein which by their nature extend beyond the termination of any sale or license of Products or Support will remain in effect until fulfilled.
  8. If any term or provision herein is determined to be illegal or unenforceable, the validity or enforceability of the remainder of the terms or provisions herein will remain in full force and effect.
  9. These GLISSNER Terms and Conditions of Sale and Service and any Exhibits constitute the entire agreement between GLISSNER and Customer, and supersede any previous communications, representations or agreements between the parties, whether oral or written, regarding transactions hereunder. Customer's additional or different terms and conditions will not apply. Customer's purchase or license of Products and Support will constitute Customer's acceptance of these GLISSNER Terms and Conditions of Sale and Service, which may not be changed except by an amendment signed by an authorized representative of each party.