ARMILLA TECH LTD.
TERMS OF SALE
These Terms of Sale (“Terms”) apply to all orders (each an “Order”) placed by you to purchase Armilla products and services (“Products”), whether via Armilla’s website, phone, purchase order, or otherwise. By placing any order with Armilla, the Customer agrees to be bound by these Terms and these Terms and each Order constitute a separate agreement for the purchase of Products (this “Agreement”). The Customer represents and warrants that it has the legal capacity to agree to this Agreement. This Agreement is between the Customer and Armilla Tech Ltd. In this Agreement, “Armilla” and “we” mean Armilla Tech Ltd. and
“Customer” and “you” means the purchaser of Products hereunder.
1. Ordering. Armilla may refuse or cancel any Order or limit any Order quantity in its sole discretion, even after receiving an Order. Armilla may also require additional qualifying information prior to accepting or processing an Order. While it is the practice of Armilla to confirm Orders by e-mail, the Customer’s receipt of an e-mail confirmation does not constitute Armilla’s acceptance of the Customer’s Order or Armilla’s confirmation of an offer to sell a Product. Armilla reserves the right to change the prices for any Products at any time without notice.
2. Delivery/Risk of Loss. The acceptance of shipment by any common carrier selected by Armilla shall constitute a delivery to the Customer at the address specified in the applicable Order. Armilla shall have the right to specify the carrier to be used. Armilla will carry insurance for Products damaged in transit. Risk of loss to the Products passes to the Customer on delivery. Title to the Products passes to the Customer upon full payment of the purchase price to Armilla. The costs of shipment, including all taxes, duties, and brokerage fees, shall be for the account of, and shall be paid by, the Customer. Armilla may ship all or any part of the Products in one or more installments, irrespective of whether the applicable Order specifies a precise quantity of Products, and the Customer must accept delivery of any partial shipment of the Products.
Shipping dates given prior to shipment are estimated only. Any estimated timing of delivery of the Products by Armilla is conditional upon Armilla’s receipt of the purchase price for the Products. Armilla’s obligations under an Order are subject to war, invasion, insurrection, riot, the order of any civil authority, breakdowns, strikes, lockouts, labour disputes, accidents, fire, delays in transportation or delivery of merchandise, government regulations or any other cause or causes, whether or not similar to any of the foregoing, beyond Armilla’s reasonable control. Armilla reserves the right to terminate an Order should
fulfillment thereof in whole or in part be delayed or rendered impossible by any of the foregoing causes. In the event of such termination, Armilla’s liability and obligations under or arising out of the applicable Order shall cease except with respect to any Products shipped thereunder prior to such termination and the Customer shall remain liable to accept and pay for Products so shipped.
3. Taxes. The purchase price for the Products is exclusive of any and all sales, use, excise, goods and services, value added and like taxes, duties, tariffs and customs levies applicable to or arising from the sale
and delivery of the Products and the Customer shall be solely responsible for the payment of all such amounts.
4. Cancellations and Returns. An Order may be cancelled or changed at any time prior to shipment of the applicable Products. A Product in its original unopened condition may be returned to Armilla for a refund within 30 days from the date of order of such Product. Opened Products are non-refundable. The
Customer shall deliver the retuned Product to Armilla in accordance with instructions provided by Armilla. All shipping and associated costs to return a Product to Armilla are the responsibility of the Customer.
5. Product Availability. Armilla make no representations as to the completeness, accuracy, reliability, validity or timeliness of any listings, descriptions or images (including, without limitation, any features and specifications such as weights and sizes) for any products or services available through the Armilla website. Such information and the availability of any Product are subject to change at any time without notice. It is the Customer’s responsibility to understand and comply with all applicable local, state, provincial, federal and foreign laws regarding the purchase, possession and use of any Product.
6. Software License. To the extent the Products ordered by the Customer contains, consists of, or makes available Armilla software in any form, such software is licensed to the Customer, and not sold, in accordance with Armilla’s End User Licence Agreement.
7. Limited Warranty. ARMILLA’S LIABILITY UNDER THE FOLLOWING WARRANTY IS LIMITED.
Provided that the Customer strictly adheres to the terms of the applicable Order, including this Agreement, and the Products have been installed, operated and maintained in strict compliance with all instructions and guidelines provided by Armilla, Armilla warrants to the Customer, as the original purchaser of the Products, and for a period of three (3) months from the date of delivery of the Products (“Warranty Period”), that, as at the date of delivery of the Products, the Products shall be free of defects in materials and workmanship (“Limited Warranty”). The Limited Warranty does not apply if the Products have been damaged by accident, vandalism, abnormal usage or abuse, misuse, improper installation or maintenance, negligence, fire, natural disasters, or acts of God, or have been damaged by repairs, modifications, alterations or attachments made by the Customer or third parties which have not been authorized by Armilla or if the Products have not been installed, operated and maintained in accordance with the instructions and guidelines supplied by Armilla.
In order for the Customer to make a claim under the Limited Warranty, the Customer must notify Armilla in writing of such claim within the Warranty Period for the applicable Product. If warranty service is
required, Armilla will issue a Return of Goods Authorization. Armilla will not accept any responsibility for Products returned without a Return of Goods Authorization. The Customer shall be responsible for all costs and expenses associated with returning the Products to Armilla for warranty service.
All claims must include the following and Armilla is under no obligation to process a claim under the Limited Warranty without all of the following having been provided to Armilla within the time period stated: (i) the Return of Goods Authorization obtained from Armilla; (ii) a copy of dated proof of original purchase by the Customer of the Products; (iii) note describing the defect in as specific detail as possible; (iv) Customer contact information for future communication by Armilla; and (vi) return information including street information and telephone number of person receiving delivery of repaired or replaced Products. Armilla shall own all parts removed from repaired or replaced Products. Armilla must be allowed a reasonable opportunity to inspect any alleged defect before any warranty claim is processed, or repairs made, hereunder. The Limited Warranty is for the exclusive benefit of the Customer, as the original purchaser of the Products, and is not assignable or transferable by the Customer.
If the Customer makes a proper warranty claim under the Limited Warranty which is accepted by Armilla, Armilla’s sole liability in respect thereto shall be limited to one of the following (as selected in the sole discretion of Armilla): (i) supplying other Products (whether as a result of repairing the returned Products or replacing same, at the sole discretion of Armilla) which conform in all respects to the Products which
are the subject of the claim; or (ii) repairing the Products which are the subject of the claim; or (iii) refunding the purchase price thereof upon return of the Products by the Customer at the cost of the Customer. Any repair or replacement by Armilla under the Limited Warranty shall not extend the Warranty Period and all materials provided by Armilla as a result of a warranty claim under the Limited Warranty are warranted under the terms and conditions of the Limited Warranty only for the balance of the Warranty Period for the Products which were the subject of the warranty claim. Unless the Customer otherwise directs, Armilla may in its absolute discretion employ, for the purposes of delivering repaired or replaced Products, any rail or truck freight carrier, courier or other public carrier licensed or purporting to be licensed to carry goods for hire at the place of shipment to the place specified in applicable Order and Armilla shall not be liable to the Customer for any act, default or miscarriage by the carrier.
8. DISCLAIMER. EXCEPT FOR THE LIMITED WARRANTY, ARMILLA MAKES NO REPRESENTATIONS OR WARRANTIES IN CONNECTION WITH THE PRODUCTS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ARMILLA HEREBY EXPRESSLY
DISCLAIMS, ALL OTHER WARRANTIES, PERFORMANCE GUARANTEES AND CONDITIONS WHETHER WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES AND CONDITIONS ARISING FROM COURSE OF DEALING OR USAGE OR TRADE. NO SALESPERSON HAS THE AUTHORITY TO ADD TO OR OTHERWISE MODIFY THE LIMITED WARRANTY AS SETOUT HEREIN.
9. LIMITATION OF LIABILITY.
ARMILLA WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY LOSS OR DAMAGE ARISING FROM, CONNECTED WITH, OR RELATING TO THE USE OF THE PRODUCTS BY YOU OR ANY OTHER PERSON, INCLUDING, WITHOUT LIMITATION, ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES. TO THE EXTENT PERMITTED BY LAW, USE OF THE PRODUCTS BY YOU AND YOUR EMPLOYEES, PLAYERS, ATHLETES, AGENTS AND REPRESENTATIVES IS AT YOUR SOLE RISK.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE LIABILITY OF ARMILLA IN RELATION TO THIS AGREEMENT AND THE PRODUCTS, WILL IN ALL CIRCUMSTANCES BE LIMITED TO DIRECT DAMAGES AND ARMILLA WILL NOT BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES OR LOSS OF PROFIT, WHETHER IN CONTRACT, TORT OR OTHERWISE RESULTING FROM ANY CAUSE OF ACTION WHATSOEVER, INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, NEGLIGENT MISREPRESENTATION OR FUNDAMENTAL BREACH OR OTHER THEORY OF LAW.
WITHOUT LIMITING THE GENERALITY OF ANYTHING CONTAINED IN THIS SECTION 9, ARMILLA’S LIABILITY IN AGGREGATE IN RELATION TO THIS AGREEMENT WILL NOT EXCEED THE PURCHASE PRICE.
10. Not for Resale. Armilla sells and ships Products to end-user customers only, and Armilla reserves the right to refuse or cancel the Customer’s Order if Armilla suspects that the Customer is purchasing products for resale.
11. Joint and Several. If two or more individuals, corporations, partnerships or other entities (or any combination of two or more thereof) enter into, or are subject to the terms and conditions of, an Order as the Customer, the liability of each of them thereunder is joint and several.
12. Entire Agreement. Each Order, including these Terms, constitutes the entire agreement between Armilla and the Customer pertaining to the subject matter of such Order and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of Armilla and the Customer.
13. Amendment and Waiver. No supplement, modification or waiver or termination of this Agreement will be binding unless executed in writing by Armilla and the Customer. No waiver of any of the provisions of this Agreement will be deemed or will constitute a waiver of any other provision (whether or not similar) nor will such waiver constitute a continuing waiver unless otherwise expressly provided.
14. Governing Law and Forum. This Agreement is subject to, and shall be interpreted and construed in accordance with, the laws of the province of British Columbia, Canada. Each of the parties consents to
the exclusive jurisdiction of the courts of the province of British Columbia with respect to all disputes arising under this Agreement. The parties disclaim application of the United Nations Convention on Contracts for the International Sale of Goods.
15. Enurement. This Agreement, is binding upon and enures to the benefit of the Customer and Armilla and their respective heirs, executors, administrators, successors and permitted assigns.
16. Time of the Essence. Unless otherwise expressly provided in this Agreement, time shall be of the essence in the performance of all obligations by all parties.
17. Assignment. The Customer may not assignor transfer an Order, by operation of law or otherwise, without Armilla’s prior written consent. Any attempt by the Customer to assign or transfer an Order, without such consent, is null and void. Armilla may freely assign or transfer all Orders without restriction.
18. Interpretation. In this Agreement words in the singular only include the plural and vice versa. Article and Section headings are included solely for convenience, are not intended to be full or accurate descriptions of the content thereof and are not considered part of this Agreement.
19. Invalidity. If any of the provisions contained this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of the remaining provisions contained thereunder or hereunder, as the case may be, are not in any way affected or impaired thereby.
20. Force Majeure. For purposes of this Agreement, “force majeure” means events that are caused by or result from acts beyond the parties’ reasonable control, which events may include, but are not limited to, the unavailability of materials and supplies provided by third parties, natural disasters, pandemics, embargoes, explosions, riots, wars or acts of invasion or terrorism, requirements of law, national or regional emergency, strikes, labour stoppages or slowdowns, or shortage of adequate power or transportation. Neither Party will be responsible or liable in any way for failure or delay in performing its obligations under this Agreement during any period in which such performance is prevented or hindered by an event of force majeure. During such period each party’s obligations, to the extent that they are affected by the event of force majeure, will be suspended and commensurately extended until such time as performance is no longer prevented or hindered, provided that if such period extends for more than ninety (90) calendar days, either Party may thereafter terminate this Agreement without any obligation or liability to the other Party for the same, except only for those provisions of this Agreement which continue in effect beyond its expiration or termination.
21. Notices. Any notices or other communications provided by Armilla under Order will be given via email to any address the Customer has provided to Armilla. For notices made by e-mail, the date on which the message is sent is deemed to be the date on which such notice is transmitted.
22. Survival. Regardless of the circumstances or termination or expiration of an Order, in whole or in part, any provision which by its nature extends beyond such termination or expiration will survive according to its terms, including Sections 7, 9, 14, and 22.
23. Language. The parties have required that this agreement and all documents related hereto be prepared in English. Les Parties ont demandé que cette convention ainsi que tous les documents que s’y rattachent soient rédigé en anglais.
END USER LICENSE AGREEMENT
This End User License Agreement (“EULA”) is a legal agreement between you and Armilla Tech Ltd. (“Armilla”, “we”, “us”) in respect of certain Armilla software and associated media, content, data, materials, and electronic documentation (“Armilla Software”) for use with an Armilla manufactured or branded device (“Armilla Product”).
By using an Armilla Product, you accept the terms of this EULA. If you do not accept these terms, do not use the Armilla Product or the Armilla Software.
1. Grant of Licence. Armilla grants you a limited non-exclusive license to install, use, access, display and run one copy of the Armilla Software on a single Armilla Product, local hard disk(s) or other permanent storage media of one computer and you may not make Armilla Software available over a network where it could be used by multiple computers or Armilla Products at the same time. Certain items of the Armilla Software may be subject to open source licenses. The open source license provisions may override some of the terms of this EULA.
2. Reservation of Rights and Ownership. Armilla reserves all rights not expressly granted to you in this EULA. The Armilla Software is protected by copyright and other intellectual property laws and treaties. Armilla or its suppliers own the title, copyright and other intellectual property rights in the Armilla Software. The Armilla Software is licensed, not sold.
3. Limitations on End User Rights. You shall not, and shall not enable or permit others to, copy, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or algorithms of, the Armilla Software, or modify, or disable any features of, the Armilla Software, or create derivative works based on the Armilla Software. You may not rent, lease, lend, or sublicense the Armilla Software. You may not transfer this EULA or the rights to the Armilla Software granted herein to any third party unless it is in connection with the sale of the Armilla Product which the Armilla Software accompanied. In such event, the transfer must include all of the Armilla Software (including all component parts, the media and printed materials, any upgrades, this EULA) and you may not retain any copies of the Armilla Software. The transfer may not be an indirect transfer, such as a consignment. Prior to the transfer, the end user receiving the Armilla Software must agree to all the EULA terms. Where Armilla Product is being used by your employee, student, player, athlete or other representative (“Representative”), that Representative may use the Armilla Software as if it were you and must comply with these terms on the same basis. Any failure to comply with these terms by a Representative shall be deemed to a failure to comply with this EULA by you.
4. Armilla Software Updates. Armilla may make available to you updates, upgrades, supplements and add-on components (if any) of the Armilla Software, including bug fixes, service upgrades (parts or whole), and updates, the removal of, or enhancements and feature improvements to any Armilla Software (including entirely new versions), (collectively “Updates”) after the date you obtain your initial copy of the Armilla Software. This EULA applies to all and any component of the Updates, unless we provide other terms along with such Updates. To use Armilla Software provided through the Updates, you must first be licensed for the Armilla Software identified by Armilla as eligible for the Updates.
Your Armilla Product may download certain Updates automatically from time to time through Wi-Fi or other network connection. You may change the settings in your Armilla Product to manually download the Updates, however, given the importance of receiving Updates for security or safety related Armilla Software in a timely manner, to resolve critical problems reported to Armilla, and to defend against new threats and vulnerabilities, these Updates may be automatically downloaded and installed which may limit the usage of some Armilla Software and/or hardware. Where an Update will materially alter the Armilla Software, Armilla will provide you with notice of the Update, where practicable. Updates may result in data consumption. We recommend you check availability of any new Updates periodically for optimal use of your Armilla Product.
Armilla is not liable for any injuries, damages, losses and/or costs suffered by users, which are associated with the services and/or information, including recommendations, coaching, tips and/or guidelines, nor for the accuracy of any information provided or acquired by or accessed through Armilla Software. Armilla is not responsible for the accuracy of information contained in any articles or materials appearing on external third party websites or reference materials, or for the security or safety of using them. Reference to information contained on external third party websites or reference materials should be taken neither as an endorsement of the accuracy of that information nor as an endorsement of the contents of that site or reference generally.
5. Consent to Use of Data.
- (b) Technical Information. To provide Updates, you agree that Armilla and its affiliates may collect and use technical information gathered as part of the Armilla Product support services related to the Armilla Software provided to you, if any, such as device number, model name, customer code, access recording, your device’s current Armilla Software version. Armilla may use this information to improve its products or to provide customized services or technologies to you and will not disclose this information in a form that personally identifies you.
- (d) Location Data. Armilla and its partners, licensees and third party developers may provide certain services that rely upon location information, such as your device’s GPS signal or information about nearby Wi-Fi access points and cell towers that may be transmitted to us, with your consent, when you use such location enabled services.
6. Internet Access. Some features of the Armilla Software may require your Armilla Product to have access to the Internet and may be subject to restrictions imposed by your network or Internet provider. Unless your Armilla Product is connected to the Internet through Wi-Fi connection, the Armilla Software will access the internet through your mobile network, which may result in additional charges depending on your payment plan. In addition, your enjoyment of some features of the Armilla Software may be affected by the suitability and performance of your device hardware or data access.
7. Termination. This EULA is effective until terminated by Armilla. Your rights under this EULA will terminate automatically without notice from Armilla if you fail to comply with any of the terms and conditions of this EULA. Upon termination of this EULA, you must cease all use of the Armilla Software and destroy all copies, full or partial, of the Armilla Software.
8. LIMITED WARRANTY. ALL ARMILLA SOFTWARE (WHETHER INCLUDED WITH THE ARMILLA PRODUCT, DOWNLOADED, OR OTHERWISE OBTAINED) IS PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT POSSIBLE PURSUANT TO APPLICABLE LAW, ARMILLA HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY OR WORKMANLIKE EFFORT, FITNESS FOR A PARTICULAR PURPOSE, RELIABILITY OR AVAILABILITY, ACCURACY, LACK OF VIRUSES, NON INFRINGEMENT OF THIRD PARTY RIGHTS OR OTHER VIOLATION OF RIGHTS. SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OR LIMITATIONS OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ARMILLA OR ITS AFFILIATES SHALL BE DEEMED TO ALTER THIS DISCLAIMER BY ARMILLA OF WARRANTY REGARDING ARMILLA SOFTWARE, OR TO CREATE ANY WARRANTY OF ANY SORT FROM ARMILLA.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE ARMILLA SOFTWARE AND ANY SERVICES PERFORMED BY OR ACCESSED THROUGH THE ARMILLA SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. ARMILLA DOES NOT GUARANTEE OR WARRANT THAT ANY INFORMATION, DATA OR CONTENT YOU MAY TRANSFER, STORE OR ACCESS THROUGH USE OF THE ARMILLA SOFTWARE WILL NOT BE SUBJECT TO INADVERTENT DAMAGE, CORRUPTION, LOSS, OR REMOVAL, AND ARMILLA SHALL NOT BE RESPONSIBLE SHOULD SUCH DAMAGE, CORRUPTION, LOSS, OR REMOVAL OCCUR. IT IS SOLELY YOUR RESPONSIBILITY TO MAINTAIN APPROPRIATE ALTERNATE BACKUP OF YOUR INFORMATION AND DATA.
9. LIMITATION OF LIABILITY. ARMILLA WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY LOSS OR DAMAGE ARISING FROM, CONNECTED WITH, OR RELATING TO THE USE OR THE INABILITY TO USE THE ARMILLA SOFTWARE, ITS CONTENT OR FUNCTIONALITY, INCLUDING BUT NOT LIMITED TO DAMAGES CAUSED BY OR RELATED TO ERRORS, OMISSIONS, INTERRUPTIONS, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, FAILURE TO CONNECT, NETWORK CHARGES, AND ALL OTHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES EVEN IF ARMILLA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND YOU AGREE THAT YOU WILL USE THE ARMILLA SOFTWARE AT YOUR OWN RISK.
10. Applicable Law. This EULA is subject to, and shall be interpreted and construed in accordance with, the laws of the province of British Columbia, Canada. Each of the parties consents to the exclusive jurisdiction of the courts of the province of British Columbia with respect to all disputes arising under or in respect of this EULA. The parties disclaim application of the United Nations Convention on Contracts for the International Sale of Goods.
11. Enurement. This EULA, is binding upon and enures to the benefit of you and Armilla and their respective heirs, executors, administrators, successors and permitted assigns.
12. Waiver. No waiver of any of the provisions of this EULA will be deemed or will constitute a waiver of any other provision (whether or not similar) nor will such waiver constitute a continuing waiver unless otherwise expressly provided.
13. Interpretation. In this EULA words in the singular only include the plural and vice versa. Article and Section headings are included solely for convenience, are not intended to be full or accurate descriptions of the content thereof and are not considered part of this EULA.
14. Invalidity. If any of the provisions contained in this EULA is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of the remaining provisions contained thereunder or hereunder, as the case may be, are not in any way affected or impaired thereby.
15. Survival. Regardless of the circumstances or termination or expiration of this EULA, in whole or in part, any provision which by its nature extends beyond such termination or expiration will survive according to its terms, including Sections 7, 8, 9 and 15.
16. Language. The parties have required that this agreement and all documents related hereto be prepared in English. Les Parties ont demandé que cette convention ainsi que tous les documents que s’y rattachent soient rédigé en anglais.