THESE TERMS OF SALE ("TERMS OF SALE") SHALL GOVERN THE SALE TO YOU OF PRODUCTS AND/OR SERVICES ("PRODUCT") BY D-LINK CANADA INC. ("D-LINK"),
BY ORDERING PRODUCTS FROM D-LINK, YOU AGREE TO BE BOUND BY AND ACCEPT THESE TERMS OF SALE. IF YOU HAVE A SEPARATE AGREEMENT THAT IS SIGNED BY D-LINK REGARDING THE SUBJECT MATTER CONTAINED HEREIN, EXCEPT FOR ANY CONFLICTING TERMS WHICH SHALL BE READ IN FAVOR OF THE OTHER AGREEMENT, THESE TERMS OF SALE SHALL CONTINUE TO GOVERN. THESE TERMS OF SALE, TOGETHER WITH YOUR ORDER INFORMATION, CONSTITUTE THE ENTIRE AGREEMENT BETWEEN YOU AND D-LINK WITH RESPECT TO YOUR PURCHASE OF PRODUCTS FROM D-LINK.
An order that you submit to D-Link for Products (an "Order") constitutes your offer to purchase Products referenced in your Order and is subject to acceptance by D-Link in D-Link's sole discretion. Your Order shall be deemed to be accepted if and when D-Link sends an order acceptance to you or ships the Products to you.
3. Product Availability
At any given time, availability of any Product may be limited or may not be available for immediate delivery. D-Link reserves the right to limit the quantity of Products sold or licensed. If you order Products that are not available, D-Link will notify you by phone or by email.
4. Product Changes
D-Link reserves the right, in its sole discretion and without incurring any liability and without prior notice to you, to do any of the following:
All prices are in Canadian dollars. D-Link reserves the right to change the prices, fees and charges for its Products at any time and from time to time without any liability or notice to you or any other person. Prices do not include charges for shipping, handling, insurance and taxes. You shall pay any duties and taxes associated with the purchase of the Products, including, without limitation, all Canadian federal goods and services taxes and all applicable provincial taxes. Unless otherwise agreed to in writing and signed by an authorized representative of D-Link, all costs associated with the shipping of Products (including, without limitation, insurance, customs, duties, excise taxes and other applicable taxes) from D-Link's facilities in Mississauga, Ontario or other shipping points in North America as designated by D-Link, shall be paid by you.
6. Payment Terms
All payments are payable in Canadian dollars. For purchases made through the Web Site, D-Link accepts only credit card payments. D-Link reserves the right to change payment terms at any time in its sole discretion.
For payments by credit card, payment authorization by your credit card company or financial institution must be received by D-Link prior to D-Link's acceptance and shipping of your Order. D-Link only accepts Visa® and MasterCard®. By submitting a credit card number with an Order, you are authorizing D-Link and its third party credit card processor to charge the amount of any payments owing to D-Link in respect of the particular Order to the credit card. D-Link shall not be liable in any way if your credit card company or financial institution refuses to accept or honour the credit card number you provide to D-Link for any reason.
D-Link will only ship to Canadian locations specified in the Order. Shipping dates are estimates only and D-Link shall not be responsible for any delays in the shipping of any Product. D-Link may, at its reasonable discretion, reschedule shipping dates or ship Products under any Order in any order and to make partial shipments. D-Link shall have the right, at its sole discretion, to determine or change the method of shipping.
8. Title and Risk of Loss
Risk of loss or damage to Products shall pass from D-Link to you upon the earliest of: (i) shipment of such Products from D-Link's facility; or (ii) receipt by you of such Products.
Title to Products shall pass to you only upon receipt by D-Link of payment in full for the Products, except for title to software furnished as a Product or as a part or component of a Product ("Software"). D-Link and/or D-Link's licensors retain all proprietary rights, title and interest in and to any and all Software. All Software is provided for use by D-Link under an end-user license agreement shipped with the Software. Unless otherwise stated in the applicable end-user license, all Software is provided on a non-exclusive and limited use basis for internal business or personal use only and no person shall modify, enhance, reverse-engineer, decompile, disassemble, or otherwise change or supplement the Software.
D-Link retains a security interest in the Products it ships until payment is received in full.
D-Link reserves the right at any time to reject, correct, cancel or terminate any Order (accepted or otherwise) for any reason whatsoever.
If you wish to cancel an Order, you may request a cancellation by sending an email to Customer Service. If D-Link does not receive and process your cancellation request before D-Link ships your Order, your cancellation request will be rejected.
10. Product Warranties and License
The warranties in respect of Products, if any, are as set out in the pre-printed warranty materials shipped with the applicable Product or online at http://support.dlink.ca.
11. Return Policies
You have 30 days from the invoice date to return the Products and are responsible for all shipping charges with respect to returned items. A restocking fee shall be applied to all returned items.
12. Limitation of Liability
EXCEPT AS EXPRESSLY SET OUT IN AN ORDER ACCEPTED BY D-LINK OR IN THESE TERMS OF SALE OR IN ANY PRE-PRINTED D-LINK WARRANTY DOCUMENTATION ACCOMPANYING A PARTICULAR PRODUCT, ALL PRODUCTS SOLD OR PROVIDED BY D-LINK ARE BEING PROVIDED ON AN "AS-IS" BASIS WITHOUT ANY WARRANTY AND CONDITION OF ANY KIND. D-LINK HEREBY WAIVES ANY AND ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
IN NO EVENT SHALL D-LINK BE LIABLE TO YOU FOR ANY LOST REVENUE, LOST PROFITS, OR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR INDIRECT DAMAGES HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE OR STRICT LIABILITY) ARISING OUT OF OR IN CONNECTION WITH ANY ORDER, THESE TERMS OF SALE OR ANY PRODUCT, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
IN RESPECT OF ANY CLAIM, DEMAND OR ACTION BY YOU AGAINST D-LINK OR ANY OF ITS EMPLOYEES, DIRECTORS, OFFICERS, AGENTS OR THIRD PARTY CONTRACTORS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH ANY ORDER, THESE TERMS OF SALE OR ANY PRODUCT, INCLUDING, BUT NOT LIMITED TO, A BREACH OF ANY OF D-LINKS OBLIGATIONS UNDER ANY ORDER OR THESE TERMS OF SALE (WHETHER OR NOT A FUNDAMENTAL BREACH), YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE TO RECEIVE FROM D-LINK PAYMENT FOR ACTUAL AND DIRECT DAMAGES TO A MAXIMUM AGGREGATE AMOUNT EQUAL TO THE SUM PAID BY YOU TO D-LINK FOR THE PARTICULAR PRODUCT(S) GIVING RISE TO THE CLAIM.
You agree to indemnify, defend and hold D-Link, its employees, directors, officers, agents and third party contractors harmless against all claims, liabilities, judgments, damages and losses (including legal fees and disbursements) arising out of or in connection with any breach by you of these Terms of Sale and/or any Order.
15. Force Majeure
Failure of D-Link to perform any of its obligations under any Order or these Terms of Sale by reason of fires, floods, freezes, accidents, wars (whether or not declared), riots, insurrections, acts of God, acts of government (including, without limitation, the Government of Canada), acts of public enemy, inability to obtain materials, labour unrest or material shortages, or other causes which are beyond the control of D-Link, shall not constitute a default or breach of any Order or these Terms of Sale so long as such condition exists and prevents performance.
16. Export Control
Products obtained from D-Link may be subject to applicable export laws and regulations. You will comply with such laws and regulations whenever you export any Products obtained from D-Link. In addition, you acknowledge that Product warranties may be null and void for Products exported or used outside Canada.
17. Governing Law and Jurisdiction
These Terms of Sale and any Order shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, excluding the conflict or choice of law provisions. You and D-Link hereby expressly waive the application of the United Nations Convention on Contracts for International Sale of Goods, and any local implementing legislation. You agree that the courts in the Province of Ontario located in Mississauga, Ontario have non-exclusive jurisdiction over any dispute between you and D-Link.
18. Invalidity of Provisions
If any provision or provisions of these Terms of Sale or any Order shall be held to be invalid, illegal or unenforceable, such provision shall be enforced to the fullest extent permitted by applicable law, and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
The Terms of Sale shall bind and enure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives and permitted assigns. You shall not assign your rights or obligations hereunder without D-Link's prior written consent.
20. Premium Support (TechConnect):
D-Link TechConnect premium service is a fee based technical support consultation service. By purchasing a support package you are signifying your understanding and acceptance of the following terms of service: support incidents are charged on a per issue basis. Only one device can be consulted per issue/incident. Support packages will expire 12 months after the purchase date. Customers will have a 7 day grace period in which they can call regarding the same issue with the same device. After the expiry of the 7 day grace period, customers will be required to purchase a new support package or use an additional incident from their existing package. Due to circumstances beyond our control, D-Link cannot guarantee a resolution to your issue. The fee is for a consultation service and will apply whether your problem is completely resolved or not. By purchasing a TechConnect Support package you are acknowledging your understanding and acceptance of the limitations and conditions of these terms of service.
21. English Language
The parties confirm that it is their wish that these Terms of Sale and any other documents delivered or given pursuant to these Terms of Sale, including notices, have been and shall be in the English language only. Les parties aux présents confirment leur volonté que cette convention de même tous les documents, y compris tous avis, s'y rattachant, soient rédigés en anglais seulement.
Revision Date: March 2014