ARTICLE 1.0 – SCOPE AND DEFINITIONS
1.01 In these terms and conditions, “KRM” means K. R. MOELLER ASSOCIATES LTD., having its registered offices at 3-1050 Pachino Court, Burlington, Ontario L7L 6B9, and “Customer” means you the customer. “Product” means any MODIO® Product that may be advertised in any publication, flyer, brochure, or on KRM’s website at www.modio.audio (the “Website”), listed in an order or quotation (“Quotation”), and sold by KRM to Customer, which KRM agrees to supply to Customer on these terms and conditions.
1.02 The Products advertised, listed or described in any publication or on the Website are invitations to Customer to make offers to KRM to purchase such Products, and are not offers to sell Products to Customer. Customer is deemed to make an offer to KRM to purchase the Product(s) referenced in a Quotation or any order upon submitting an order to KRM by the online checkout process or in any manner that may be agreed upon by KRM. The terms and conditions of use of the Website are set out at https://www.modio.audio/legal.
1.03 If Customer submits an order to KRM for any Product(s), either electronically, by telephone, or otherwise, Customer agrees on his or her own behalf, and on behalf of the party or parties on whose behalf Customer is submitting the order, that these Terms and Conditions shall be applicable to the purchase and sale of Product (the “Terms and Conditions”) and shall constitute a sale agreement (“Agreement”) entered into between KRM and Customer, irrespective of whether Customer accepts these Terms and Conditions by a written acknowledgement, by implication, or by acceptance of Products hereunder. The Terms and Conditions shall form part of any order placed by Customer (“Order”). Any term or condition on any Order or other document submitted by Customer shall be of no force or effect whatsoever. In particular, acceptance by KRM of an Order sent by Customer shall not be deemed an acceptance of any conflicting or additional terms and conditions. KRM specifically rejects any different or additional terms and conditions proposed by Customer.
ARTICLE 2.0 – ORDERS
2.01 If KRM assigns a single Quotation number to any proposed order, any Order must quote such single Quotation number or the Order cannot be processed.
2.02 Information contained in a Quotation or which are given to Customer by KRM’s agents or employees constitutes an invitation to treat but does not constitute an offer by KRM to supply Products. By placing an Order, Customer makes an offer to KRM to purchase the Products. Any Order shall be subject to acceptance by KRM and KRM may decline any Order in whole or in part, for any lawful reason whatsoever. If KRM accepts Customer’s Order, KRM will notify Customer of its acceptance by sending an Order confirmation (the “Order Confirmation”).
2.03 While KRM will make reasonable best efforts to supply Customer with the Products listed on the Order Confirmation, KRM cannot guarantee that the Products will be available for purchase or immediately available for delivery, and there may be occasions where KRM is unable to supply these Products because, for example, (a) such Products are no longer being manufactured or available, (b) KRM is unable to source relevant components, or (c) there was a pricing error. In such circumstances KRM will contact Customer and may suggest alternative Products that Customer might wish to purchase (at the same or different price). In the event of a pricing error, KRM will communicate the correct price to Customer. If Customer does not accept KRM’s proposed substitution or the price modification, then KRM will cancel the Order and refund any money that Customer may have paid to KRM in respect of the Order. Subject to clause 14.05, repayment of such monies will be the extent of KRM’s liability to Customer if KRM is unable to deliver the Products ordered by Customer. Once KRM has sent the Order Confirmation to Customer, Customer may not cancel the Order.
ARTICLE 3.0 – DELIVERY AND SHIPMENT
3.01 Subject to these Terms and Conditions, KRM will deliver to the address provided by Customer (but not install) the Products indicated on the Order Confirmation. KRM may refuse to deliver to any post office (P.O.) boxes and to any remote areas to which its carrier does not effect deliveries.
3.02 Delivery dates which might be specified in the Order, the Order Confirmation, or in any other communication from KRM (whether oral or in writing) are estimates only. KRM does not guarantee delivery by that date. 3.03 If applicable, KRM may make partial shipments of Customer’s Order(s), to be separately invoiced and paid for when due. Any delay in delivery of any instalment will not relieve Customer of its obligation to accept the remaining deliveries. KRM shall not be liable for any failure to ship complete orders or for any shipment delay.
3.04 Customer must provide a proper shipping address as entered in the Order. Failure to provide proper shipping information could result in additional shipping charges for resending the Product. In the event of re-shipping due to inaccurate shipping information provided to KRM, or if a Product was returned to KRM because it was refused, Customer will be held liable for all additional shipping charges and any other applicable as charges set out in these Terms and Conditions. Delivery charges are not refundable.
ARTICLE 4.0 – RISK AND TITLE
4.01 Unless otherwise notified by KRM in writing, title to and the right to retake possession of the Products purchased from KRM shall remain with KRM until all sums owing to KRM by Customer in respect of the Products shall have been paid in full. KRM may, at Customer’s expense, retake possession of the Products. For that purpose, Customer grants KRM, or any party representing or elected by KRM, an irrevocable licence to enter the premises where the Products then are, and, at KRM’s option in so doing, act in the name of Customer. So long as such title to and rights over Products remains with KRM, Customer shall keep the Products stored in such a manner which enables them to be identified as the Products and, wherever required by KRM, identify the Products to KRM.
4.02 Subject to clause 4.01 above, title to any Product purchased by Customer will pass to Customer once the Product is delivered to the delivery address specified in the Order Confirmation. In the event that the delivery address is a building that requires all deliveries to be received in a common area (such as a concierge or security desk), title of the Product will pass once the Product is delivered to such common area. In the event that Customer designates another person to accept the Product on his or her behalf, Customer will be deemed to have received the Product upon that acceptance. 4.03 Except as otherwise provided in these Terms and Conditions, the risk of loss or damage to all Products hereunder will pass to Customer upon KRM’s delivery of the Products to its carrier.
ARTICLE 5.0 – ACCEPTANCE
5.01 Unless otherwise agreed in writing, all shipments (which for the purpose of this clause shall be deemed to include the contents of packaged Products as well as the packages themselves and the number of packages) shall be deemed correct and undamaged unless at the time of delivery Customer specifies on KRM’s copy of the delivery documentation the precise shortfall or error in delivery, or informs KRM of such shortfall or error in writing within fifteen (15) days after the original delivery date of the given shipment. Customer’s failure to inform KRM in this way shall constitute a waiver of any such claim. All communications with KRM must include the single Quotation Number if provided in KRM’s Quotation, and the exact nature of the discrepancy between the order and shipment in number or type of Products shipped. For under-shipments, KRM shall, at its sole discretion, issue a replacement shipment, or a credit to Customer’s account if KRM has granted credit terms to Customer within thirty (30) days of receipt of Customer written notice.
ARTICLE 6.0 – PRICE
6.01 The price for the Products will be the price indicated in the Order Confirmation. Prices may include standard freight and insurance using a KRM-selected carrier, or such charges may be billed separately by KRM.
6.02 Prices do not include value added tax or other local taxes or duties (collectively, “Taxes”). All Taxes, if any, due on account of purchases hereunder shall be in addition to the price for the Product and paid by Customer.
6.03 Customer, as importer of the Products if applicable, shall be responsible for the payment of all copyright levies, recycling fees, and other similar duties imposed on the Products (or parts thereof) or their packaging by central or local authorities, collecting societies, or other institutions. KRM may communicate from time to time that, in relation to specific Products, KRM has elected to account to the relevant body and/or join a scheme, arrangement, or collective agreement on Customer’s behalf. Where KRM does so, it may charge these fees, levies, or costs to Customer on the Product invoices. In addition to the payment of recycling fees or similar duties, local law or recycling schemes may require importers or scheme members to comply with certain take-back, collection, or recycling requirements. Customer shall comply with such requirements and any additional requirements as may be communicated by KRM from time to time.
ARTICLE 7.0 – PAYMENT
7.01 All invoiced sums shall be paid in full in the currency of the invoice without deduction or set off (statutory or otherwise) and in cleared funds. KRM reserves the right to set off any amount owed by KRM to Customer against any amount due to KRM by Customer. All invoices must be paid within the payment terms agreed with KRM. Where no credit facility has been granted to Customer or where this has been withdrawn (in KRM’s absolute discretion), payment will be required in full in cleared funds prior to shipment. KRM shall not be liable in any way if the appropriate financial institution refuses to accept or honour a method of payment from Customer for any reason.
7.02 At KRM’s option, shipments may be made on such credit terms as KRM decides to extend to Customer at the time an Order is accepted. Credit terms may be shown on the Quotation, Order Confirmation, invoice, or on such other communication that may be delivered to Customer by KRM.
7.03 If KRM has reasonable grounds to believe that Customer will fail to comply with the present payment terms or with the agreed credit terms, KRM shall be entitled to postpone or to refuse delivery of an Order. 7.04 Amounts overdue shall attract an additional interest charge at the rate of interest (computed daily for each day that the payment is late) of two percent (2%) monthly (effective rate of approximately 24% annually), which shall be payable by Customer in addition.
ARTICLE 8.0 – DATA PROTECTION
8.02 If Customer wishes to have access to the information that KRM holds concerning Customer, or wants to make any change, or does not want to receive information from KRM or third party companies, Customer is required to contact KRM’s data controller at email@example.com.
ARTICLE 9.0 – PROPRIETARY RIGHTS
9.01 Customer shall not use KRM’s name, logo, trademarks, trade names, trade dress, design, look and feel, or other proprietary rights (collectively, “Proprietary Rights”) in any of its advertising, communications, publications, or other work without the prior written permission of KRM. Customer must not remove, obfuscate, deface, cover, or alter any KRM trademark or other mark nor add any KRM trademark or other mark to any materials provided by KRM nor to any Product or its packaging. Neither Customer nor its agents will register or use any trademark that may cause confusion with KRM Proprietary Rights.
ARTICLE 10.0 – SOFTWARE LICENSE
10.01 In this Agreement “Software” means any Product that may include software including without limitation operating systems, bundled software, stand alone software, and downloadable software.
10.02 Customer shall be responsible for ensuring that any Software or Product solution ordered by Customer is suitable for Customer’s requirements and is compatible with Customer’s existing systems (hardware and software) and practices.
10.03 Customer acknowledges that Products often contain not only hardware but also software, including but not limited to operating systems and applications. Such software may be included in read-only memory formats or other semiconductor chips embedded in hardware, or it may be contained separately on disks or on other media. Such software is proprietary, is copyrighted, and may also contain valuable trade secrets and be protected by patents. Customer, as an end user, is licensed to use any software contained in such Products, subject to the terms of the license accompanying the Product, if any, and the applicable patent, trademark, copyright, and other intellectual property laws. Customer shall not separate any end-user license from a Software product.
10.04 All Software is licensed to Customer on the terms and conditions of the applicable license agreements accompanying the Software. In addition to any obligations or restrictions set forth in the accompanying license agreement, Customer shall not copy a Software except for back-up or for archival purposes, and Customer shall promptly affix to any such copy the same proprietary and copyright notices as were affixed to the original. Except to the extent permitted by law, Customer shall not duplicate, disassemble, de-compile, reverse engineer, modify, create derivative works, or otherwise change a Software or its form. Customer may use Software that are incorporated in or packaged with an hardware Product solely in connection with the authorized use of such hardware Product, and shall have no other rights with respect to the Software.
ARTICLE 11.0 – EXPORT CONTROL
11.01 Customer shall comply with all laws, regulations and orders of Canada, the United States of America, the United Nation Organization, and the member states of the European Union and the European Free Trade Association, applicable to the export, re-export, transfer or resale of products or the provision of services and related technical data (“Export Laws”). Customer shall not (a) make Products available in any country in contravention of any Export Laws, or any other law, and (b) not make Products available in a country for which an export license or other governmental approval is required without first obtaining all necessary licenses or other approvals.
ARTICLE 12.0 – WARRANTY
12.01 Limited Warranty on Products – All Products carry a limited warranty against defects in materials and workmanship when normally used for a period of (a) one (1) year for the control pad used with the Product; and (b) five (5) years for any other components of the Product excluding the power supply. The warranty terms and conditions, which form part of and are incorporated into this Agreement by reference, are available online at https://www.modio.audio/product-warranty. Such warranty terms and conditions may also be contained in the packaging of the Product. The KRM limited warranty covers KRM-branded Products only. It does not cover software, services, or third parties’ products and/or services. Customer shall not be entitled to make any claim against KRM in respect of the breach of the KRM limited warranty unless the claim is made in compliance with the terms of the warranty terms and conditions.
12.02 Third-party products (hardware and software) and services – All third-party products (including non-KRM branded products contained in product bundles or promotions) and services are sold “as is” and without warranty from KRM, but may be accompanied by a manufacturer’s warranty, as provided in any documentation or license agreements that accompanies such products and/or services. Without limiting the generality of the foregoing, KRM makes no warranties or representations, express or implied, statutory or otherwise, as to the quality, capabilities, operations, performance or suitability of any third-party software or equipment used in conjunction with the Product, or the ability to integrate any such software or equipment with the Product. Responsibility for the quality, capabilities, operations, performance and suitability of any such third-party software or equipment rests solely with the Customer and the direct vendor, owner or supplier of such third-party software or equipment.
12.03 KRM MAKES NO OTHER WARRANTY TO CUSTOMER, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, TO THE FULLEST EXTENT PERMITTED BY LAW, KRM SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AS WELL AS ANY STATUTORY WARRANTY ON HIDDEN DEFECTS. 12.04 Any warranty provided for the Product by KRM gives the Customer specific legal rights, and the Customer may also have other rights that vary from jurisdiction to jurisdiction.
ARTICLE 13.0 - LIMITATION OF LIABILITY
13.01 These terms and conditions set out the full extent of KRM’s obligations and liabilities in respect of the supply of the Products.
13.02 There are no warranties, conditions or other terms that are binding on KRM except as expressly stated herein.
13.03 In no event shall KRM be liable for damages in excess of the purchase price paid for the Product, or for, without limitation, and except as provided in the Warranty set out in ARTICLE 12.0 and to the maximum extent permitted by law, direct, special, incidental, or consequential damages resulting from any breach of warranty or condition, or under any other legal theory, including but not limited to loss of use; loss of revenue; loss of actual or anticipated profits (including loss of profits on contracts); loss of the use of money; loss of anticipated savings; loss of business; loss of opportunity; loss of goodwill; loss of reputation; loss of, damage to, compromise or corruption of data; or any indirect or consequential loss or damage howsoever caused including the replacement of equipment and property.
13.04 The foregoing limitation shall not apply to death or personal injury claims, or any statutory liability for intentional and gross negligent acts and/or omissions. KRM disclaims any representation that KRM will be able to repair any Product under Warranty. Some provinces, states, and jurisdictions do not allow limitations on how long an implied warranty lasts, or the disclaimer or limitation of incidental or consequential damages, so the above limitations and disclaimers may not apply to Customer. Residents of Quebec are governed by that province’s consumer protection legislation.
ARTICLE 14.0 - GOVERNING LAW / JURISDICTION
14.01 This Agreement shall in all respects be governed by and interpreted under the laws of the Province of Ontario and the parties submit to the exclusive jurisdiction of the courts of the Province of Ontario. Notwithstanding the foregoing, KRM reserves the right to institute proceedings against Customer in the courts having jurisdiction in the place where Customer has its seat or in any jurisdiction where a harm to KRM is occurring.
ARTICLE 15.0 - GENERAL TERMS
15.01 Force Majeure – Other than for the requirements to make payment when due, neither party shall be liable for any delay or failure to meet its obligations under this Agreement due to unforeseen circumstances or to causes beyond such party’s control. In the event of any such delay, performance of the affected obligation shall be suspended for a period of time equal to the time of such delay save that in the event that the delay continues for more than two (2) months, KRM may elect to terminate this Agreement with immediate effect without incurring any liability.
15.02 No waiver – The waiver by either party of any default by the other party shall not waive subsequent defaults by such other party of the same or different kind.
15.03 Severability – If any of the provisions, either in part or in full, of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable or invalid, such provision shall be enforced to the maximum extent possible or permissible and this Agreement will be adjusted, if possible, so as to give maximum effect to the original intent and economic effect of the parties with respect to the unenforceable provision and the remaining portions of this Agreement shall remain in full force and effect.
15.04 No assignment – Customer may not assign this Agreement nor any Order related thereto and Customer may not delegate its duties under the Agreement without KRM’s prior written consent which shall not be unreasonably withheld. KRM may assign the Agreement without Customer’s consent provided that such assignment is to an affiliated company forming part of the KRM group of companies.
15.05 Modification – KRM may, in its sole discretion, at any time and from time to time make modifications to these terms and conditions without advance notice to the Customer, and upon publishing the revised or modified terms and conditions on their website, they shall be binding and in full force and effect.