1 INVOICE TERMS AND CONDITIONS OF SALE (QNX Software Systems designated below as "Seller") DEFINITIONS In these Terms: QNX Software Systems or QSS means QNX Software Systems International Corporation. "Software" means any computer software and related documentation available from Seller. Software includes computer software owned by Seller, third party computer software that has been provided for use in association with Seller's software and computer software that has been custom designed or modified for Buyer. "Goods" mean all hardware and other tangible products, but does not include Software or the media on which Software is stored. "Services" means any services provided by Seller to Buyer. Services include custom engineering and development, consulting, support and training services. "Products" means any or all Software, Goods and Services. 1. SCOPE The terms and conditions of sale contained herein shall apply to all Purchase Orders from a Buyer, in whatever format and however received, that are accepted by Seller (such Purchase Orders shall be designated below as "Orders" or "Order" as the context requires). Any acceptance by Seller of Buyer's Order is made conditional upon the Buyer's acceptance of a counteroffer, consisting of the additional or different terms and conditions contained herein. Buyer may accept the counteroffer by written acknowledgment or by acceptance of, or payment for, any of the Seller's Products or in any other fashion. In any event, Buyer shall be deemed to have accepted the counteroffer unless it is rejected in writing within ten (10) days of the Buyer's receipt of the Terms. The acceptance by Buyer of the Terms, including the different terms and conditions contained herein, shall revoke any provision in the Order that purported to limit or restrict an acceptance by the Seller to the terms in the Order. Upon acceptance of the Terms by the Buyer, all of the terms and conditions contained herein shall supersede any additional or inconsistent provision in any Order. These Terms, as well as the accepted terms and conditions of any Order, are intended to supplement, but are expressly made subordinate and subject to, the terms and conditions contained in all applicable Software license agreements as well as to any non-disclosure, license, VAR, OEM, development, support, beta test and distribution agreement (in total "the Agreements") previously or subsequently entered into by the Buyer and the Seller. The acceptance by Buyer of the Terms, including the different terms and conditions contained herein, shall also indicate that the Buyer has accepted and agrees to abide by the Agreements that were provided to the Buyer with the Products. The Agreements shall supercede any inconsistent provisions, in either these Terms or the accepted terms and conditions of an Order, in respect of the specific Products to which they relate and while the Agreements are subsisting. Provisions, terms and conditions within any Order, or other document submitted by Buyer to Seller, that are inconsistent with the terms contained herein are hereby expressly rejected and shall not be binding upon Seller without its specific written consent. Buyer agrees that Seller's failure to specifically object to any such provisions, terms or conditions submitted by the Buyer shall not
2 constitute an acceptance by Seller thereof nor shall it constitute an acceptance by Seller of any waiver of, or modification to, the provisions hereof. No modification hereof shall be valid unless in writing and duly signed by a person authorized by Seller. The provisions hereof shall not be supplemented by any usage of trade or any course of prior dealings or acquiescence in any course of performance. 2. SOFTWARE All Software is provided to Buyer under license, it is not sold. All Buyers must use and transfer Software strictly in accordance with the terms and conditions in the applicable Software license agreements entered into with the Seller. The Software license agreements shall be specific to the Software provided and to its permitted uses. Until such Software license agreements are in place, and the terms therein accepted by the Buyer, the Buyer cannot use, copy, distribute or otherwise deal with any Software. Buyers who are commercial users of the Software must accept the terms of the Commercial Software License Agreement ("CSLA") which accompanies the Software, copies of which can be obtained from Any Buyer who is unable or unwilling to accept the terms contained in any Software license agreement with the Seller must immediately return the Software and will receive a full refund. In no event shall these Terms convey any right, title, interest or license in, to or under the Software, or any associated intellectual property rights, over and above those contained in any Software license accepted by the Buyer. These Terms shall not be construed to imply a license to use the Software in the absence of a license. By these Terms, Seller expressly rejects any implied license to use the Software. 3. ORDERS All Orders are subject to acceptance by Seller. Seller reserves the right to accept or reject any Order in whole or in part, to submit counteroffers to the Buyer and, without prejudice to any other remedy, to cancel any unfilled Order. The Seller may suspend Services under, or shipment of, any unfilled Order in the event any act or omission on the part of the Buyer is in breach of the Buyer's obligations hereunder or delays the Seller's performance hereunder. 4. TAXES All taxes, levies and duties of any nature whatsoever applicable to the Products supplied hereunder shall be paid by Buyer unless Buyer provides Seller with an exemption certificate acceptable to the relevant taxing authority. Unless otherwise specified, the prices shown do not include any taxes. 5. PRICES AND PAYMENT All prices are subject to change without notice, except prices in a written quote from Seller which if less than 60 days old shall be honoured as stated therein. All Orders are also subject to credit approval before shipment. Where Buyer has established credit, payment shall be due thirty (30) days from the date of invoice. Overdue accounts shall bear interest at a rate equal to the lesser of one and one quarter percent (1.25%) per month compounded monthly (annual rate of 15%) or the highest rate permitted by applicable law. All amounts are stated, and payments are to be made, in United States currency unless otherwise agreed by the parties in writing. Each shipment shall be considered a separate and independent transaction and payment therefor shall be made accordingly. If, in Seller's judgment, Buyer's financial condition does not at any time justify payment terms as previously specified, Seller may cancel or suspend any unfilled Order unless
3 Buyer shall, upon written notice, immediately pay for any Products to be shipped or Services to be provided or pay in advance for all Products ordered but not shipped or provided, as applicable, or both, at Seller's option. If, despite any default by Buyer, Seller elects to continue to make shipments or provide Services and Products, Seller's action in so doing shall not constitute a waiver of any default by Buyer or in any way prejudice Seller's legal remedies for such default. 6. TITLE AND DELIVERY Delivery dates are approximate. Seller shall use reasonable efforts to fill all Orders according to the shipment schedule provided by Seller at the time of the acceptance of the applicable Order, but in no event shall Seller guarantee shipment according to such schedule or be liable for damages due to delays in the delivery. Buyer shall attach to all Orders the necessary information to permit Seller to commence its work, together with any import license and/or permits and related certificates which may be necessary and which shall be supplied by Buyer, at Buyer's expense. All shipments shall be made by Seller Free Carrier (or "FCA"as defined in the ICC Incoterms 1990), Seller's production and/or distribution facilities as may be specified by Seller from time to time unless otherwise specified in Seller's Sales Acknowledgment. To the extent that title passes in respect of any Product shipped by the Seller, the title to such Product shall pass to Buyer upon delivery thereof by Seller to the carrier. Liability for loss of, or damage to, Products in transit, or thereafter, shall pass to Buyer upon Seller's delivery of the Products to the carrier for shipment to Buyer. In the absence of specific instructions, Seller shall select the carrier. Any Products held or stored for Buyer shall be at Buyer's risk and expense if, at Buyer's request, a shipment is postponed for more than ten (10) days after the date the Products are ready for shipment. Claims against Seller for shortages of Products delivered must be made within thirty (30) days after arrival of shipment to the destination specified in the Order. Claims against Seller relating to shipping or the carrier must be made within seven (7) days after such arrival date. Unless otherwise agreed in writing, Seller may make partial shipments and the terms and conditions herein contained shall apply separately for each shipment. 7. WARRANTY AND LIMITATION OF LIABILITY Subject to the limitations and exclusions below, Seller warrants that the Products will substantially conform with Seller's published specifications relating to the Products for a period of six (6) months from date of shipment for Products and for a period of ninety (90) days from date of shipment for any physical media upon which Software is furnished to Buyer. Seller shall incur no liability under this warranty unless: a. Seller is, within the applicable warranty period, promptly notified in writing by Buyer of the discovery of any such non-conforming Products; b. Buyer immediately returns, upon written authorization from Seller to do so, transportation charges prepaid, such alleged non-conforming Products in the form in which originally shipped, with the "Return Material Authorization Number" provided by Seller clearly displayed; and c. Seller's test procedures disclose that the Products do not substantially conform with Seller's applicable specifications. In no event, however, shall Seller be responsible for any non-conformance or other defects in the Products due to physical damage to the Products as a result of improper handling during or after shipment, misuse, neglect, improper installation or operation, repair, alteration, accident or for any other cause not attributable to defective workmanship on the part of Seller.
4 For Products manufactured, created or offered in whole or in part to Buyer's designs, specifications or instructions ("Custom Products"), Seller warrants only that it will use commercially reasonable efforts to make the Custom Products substantially conform, at the date of final shipment, to such designs, specifications and instructions that are accepted in writing by Seller. The warranty for Custom Products is subject to all the limitations and exclusions set out in this Section 7 (except for the first paragraph hereof which does not apply to Custom Products). Seller's liability under this warranty shall be limited, at Seller's option, to either repair or replace such non-conforming Products at its own expense or reimburse Buyer the price paid by Buyer to Seller for such Products. Any Products which are replaced or repaired hereunder shall carry only the unexpired term of the warranty applicable to such replaced or repaired Products. Any amounts payable by Seller hereunder are based on the price of the Products supplied. The scope of liability set out in this Paragraph is unrelated to the value of Buyer's products or business generally. EXCEPT AS EXPRESSLY WARRANTED ABOVE, PRODUCTS ARE PROVIDED "AS IS" WITHOUT OTHER REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. EXCEPT FOR THE LIMITED REMEDIES PROVIDED ABOVE, BUYER ASSUMES THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE PRODUCTS. NOTHING STATED IN THIS AGREEMENT WILL IMPLY THAT THE OPERATION OF ANY PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ERRORS WILL BE CORRECTED. OTHER WRITTEN OR ORAL STATEMENTS BY SELLER, ITS REPRESENTATIVES, OR OTHERS DO NOT CONSTITUTE WARRANTIES OF SELLER. IN NO EVENT WILL SELLER OR ITS OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, DISTRIBUTORS, OR LICENSORS, (COLLECTIVELY, "ITS REPRESENTATIVES") BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOST REVENUE, LOST OR DAMAGED DATA OR OTHER COMMERCIAL OR ECONOMIC LOSS, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, THE SALE, SUPPLY OR LICENSE OF PRODUCTS, OR ANY USE OR INABILITY TO USE PRODUCTS, OR ANY CLAIM MADE BY A THIRD PARTY, EVEN IF SELLER OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR CLAIM. IN NO EVENT WILL THE AGGREGATE LIABILITY OF SELLER AND ITS REPRESENTATIVES FOR ANY DAMAGES OR CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS, OR THE PRODUCTS SOLD, SUPPLIED OR LICENSED TO BUYER, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT BUYER HAS PAID TO SELLER RELATING TO THE SALE, SUPPLY OR LICENSE OF PRODUCTS SUBJECT TO THESE TERMS IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. SELLER'S AND ITS REPRESENTATIVES' LIMITATION OF LIABILITY IS CUMULATIVE WITH ALL OF SELLER'S AND ITS REPRESENTATIVES' PAYMENTS IN SATISFACTION OF THEIR LIABILITIES BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THIS SECTION SHALL SURVIVE AND APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BUYER AGREES THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK AND ARE REFLECTED IN THE FEES AGREED UPON BY THE PARTIES. 8. SELLER'S OWNERSHIP OF TECHNOLOGY Unless agreed otherwise in writing by Seller, Seller shall retain all right, title and interest in and to, and possession of, all its proprietary technology, including but not limited to, all copyright, patent, trade secret and other intellectual property rights associated with any ideas, concepts, methods, processes, techniques, inventions or works of authorship (including programs, Improvements and documentation) developed or created by or on behalf of Seller for furnishing Products under any
5 Order accepted by Seller. Seller may use this proprietary technology in any of its Products, in whole or in part, even if the proprietary technology was developed expressly for use by Buyer. Buyer shall take such further actions, including the execution and delivery of instruments of conveyance, as may be reasonably requested by Seller, to give full and proper effect to the provisions of this Section and/or to obtain waivers of associated moral rights. Buyer shall own only the authorized modifications that it makes to Products, except for Improvements. Where used in these Terms, the word "Improvements" means work-arounds, error corrections or enhancements that are not specific to the intended use of the Products and that the Buyer discloses or suggests to Seller. All right, title and interest in and to Improvements shall be owned by Seller, unless Seller has otherwise expressly agreed in writing. Buyer acknowledges that it is under no obligation to make such disclosures or suggestions to Seller. 9. CUSTOM PRODUCTS AND SERVICES Seller provides no representation, guarantee, condition or warranty, expressed or implied, with respect to (i) the correctness or applicability of Buyer's designs, specifications or instructions for any Custom Products, or (ii) the functionality or performance of the Custom Products or any products derived from or using any of the Custom Products supplied hereunder. Other than specified herein, all Custom Products are sold, delivered or licensed to Buyer "AS IS, WITH ALL DEFECTS". Seller retains sole discretion to assign and control its staff in the production of Custom Products or in the performance of any work associated with the development of Custom Products. Development times and milestones provided by Seller for any Custom Products are estimates only. No guarantee, condition, warranty or representation is made by Seller with regard to the success, timeliness, or successful result of the Custom Products. Design changes may be necessary to correct unanticipated deficiencies resulting from manufacturing process, software bugs, functional/operational issues or other anomalies. Revisions, modifications or testing requested by the Buyer that are beyond the original scope of any Custom Product Order accepted by Seller may result in additional charges to Buyer. 10. SUBSTITUTIONS AND MODIFICATIONS Seller reserves the right to modify the specifications of Products designed by or for Seller, without notice, provided that the modification will not materially affect the performance, form, or fit of the affected Products. 11. FORCE MAJEURE Neither Buyer nor Seller shall be liable for failures in performance, including delay or non-shipment, resulting from acts or events beyond its reasonable control. Such acts or events shall include, but shall not be limited to, acts of God, civil or military authority, civil disturbance, fire, strikes, lockouts or slowdowns, factory or labour conditions, errors in manufacture, inability to obtain necessary labour, materials or manufacturing facilities, delayed issuance of export control licenses, or other "force majeure" events beyond the reasonable control of the non-performing party. In the event of such delay, the date of shipment shall, at the request of Seller, be deferred for a period equal to the time lost by reason of the delay and otherwise for a reasonable time. 12. CANCELLATION AND RESCHEDULING CHARGES
6 Unless agreed otherwise in writing by Seller, the following cancellation and rescheduling terms shall apply to all Orders: a. should Buyer cancel any Order for Custom Products, or Services other than training services, Buyer shall pay to Seller that portion of the purchase price for the Custom Products or Services equal to the portion of the Custom Products completed or the Services performed on the date of receipt of notice of cancellation; b. should Buyer cancel any Order for Services which are training services, Buyer shall pay to Seller (i) an administration fee of 5% of the Order or $100, whichever is greater; plus (ii) the purchase price of the training services if Buyer cancels within 7 days of the scheduled training course and Seller is unable to find another buyer for the training services. All of these payments shall be deemed to represent reasonable estimates of Seller's liquidated damages and are not penalties. 13. ASSIGNMENT Buyer may neither assign nor transfer its rights to any Order accepted by Seller, by operation of law or otherwise, without the prior written consent of Seller. Seller's affiliated companies may participate in Seller's performance hereunder. 14. GOVERNING LAW and DISPUTE RESOLUTION The laws of the Province of Ontario and the laws of Canada applicable therein, excluding conflict of law rules, shall govern any Order accepted by Seller and any counteroffer accepted by the Buyer. The United Nations Convention on Contracts for the International Sale of Goods ("Vienna Convention") shall not apply to any such Order or counteroffer. If Buyer fails to perform any of its obligations pursuant to an accepted Order and counteroffer, Buyer shall pay Seller all costs and expenses incurred by Seller, including all attorney's fees, in enforcing Seller's rights relating to such Order and counteroffer, whether by formal proceedings or otherwise, in addition to any other remedy available to Seller. 15. WAIVER No waiver by either party of any breach of any of these terms and conditions by the other party shall be deemed to constitute a waiver of any other breach nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy hereunder operate as a waiver thereof. A waiver given by a party hereunder shall be binding upon such party only if in writing and signed by such party. 16. EXPORT CONTROLS Buyer agrees to comply with all applicable laws, rules and regulations and obtain all permits, licenses and authorizations or certificates that may be required in connection with its purchase or licensing of Products. This includes any laws, regulations, orders or other restrictions on the export of Products from Canada and the USA which may be imposed from time to time by the Canadian or United States Governments. Buyer shall not export or re-export, directly or indirectly, Products or information pertaining thereto to any country for which either such government or any agency thereof requires an export license or governmental approval at the time of export or re-export without first obtaining such license or approval. Document Version: ITCS2_02