Hardware Purchase Terms
Last updated: February 21st, 2025
Capitalized terms used but not otherwise defined in these Hardware Purchase Terms have the meaning ascribed to them in the Operto Terms of Service located at https://operto.com/terms/. The following terms and conditions are applicable to Customers who contract with Operto to purchase hardware products (“Purchased Hardware”). If in conflict with any other part of the Agreement, this Schedule will control.
1. Delivery.
(a) If you purchase Purchased Hardware from Operto, the Purchased Hardware will be delivered by a third party carrier to the address identified on the Order Form (“Delivery Point”), subject to availability of the ordered Purchased Hardware. Any delivery timelines specified by the carrier or the applicable manufacturer are estimates only and may be subject to change. Operto shall not be liable for any delays, loss or damage in transit.
(b) Unless otherwise agreed in writing by the parties, the Purchased Hardware shall be delivered to the Delivery Point using the manufacturer’s and/or carrier’s standard methods for packaging and shipping such Purchased Hardware. Customer shall take delivery of the Purchased Hardware upon the Purchased Hardware being delivered to the Delivery Point. Customer shall be responsible for all loading costs and provide equipment and labour reasonably suited for receipt of the Purchased Hardware at the Delivery Point.
(c) Operto may, in its sole discretion, without liability or penalty, arrange for partial shipments of Purchased Hardware to Customer. Each shipment will constitute a separate sale, and Customer shall pay for the units shipped whether such shipment is in whole or partial fulfilment of the Order Form.
(d) If for any reason Customer fails to accept delivery of any of the Purchased Hardware on the date fixed pursuant to Operto’s notice that the Purchased Hardware have been delivered at the Delivery Point, or if Operto is unable to deliver the Purchased Hardware at the Delivery Point on such date because Customer has not provided appropriate instructions, documents, licences or authorizations: (i) risk of loss to the Purchased Hardware shall pass to Customer; (ii) the Purchased Hardware shall be deemed to have been delivered; and (iii) Operto, at its option, may store the Purchased Hardware until Customer picks them up, whereupon Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
2. Shipping Terms. Unless otherwise agreed to by Operto in writing, delivery shall be made to the Delivery Point.
3. Title and Risk of Loss. Title and risk of loss passes to Customer upon delivery of the Purchased Hardware at the Delivery Point. As collateral security for the payment of the purchase price of the Purchased Hardware, Customer hereby grants to Operto a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Purchased Hardware, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the British Columbia Personal Property Security Act.
4. Inspection and Rejection of Non-Conforming Purchased Hardware.
(a) Customer shall inspect the Purchased Hardware within five (5) business days of receipt (“Inspection Period”). Customer will be deemed to have accepted the Purchased Hardware unless it notifies Operto in writing of any Non-Conforming Purchased Hardware during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Operto. “Non-Conforming Purchased Hardware” means only the following: (i) product shipped is different than identified in the Order Form; or (ii) product’s label or packaging incorrectly identifies its contents.
(b) If Customer timely notifies Operto of any Non-Conforming Purchased Hardware, Operto shall, in its sole discretion either (i) replace such Non-Conforming Purchased Hardware with conforming Purchased Hardware, or (ii) credit or refund the Price for such Non-Conforming Purchased Hardware, together with any reasonable shipping and handling expenses incurred by Customer in connection therewith. Customer shall ship, at its expense and risk of loss, the Non-Conforming Purchased Hardware to a location to be confirmed by Operto. If Operto exercises its option to replace Non-Conforming Purchased Hardware, Operto shall, after receiving Customer’s shipment of Non-Conforming Purchased Hardware, ship to Customer, at Customer’s expense and risk of loss, the replaced Purchased Hardware to the Delivery Point.
(c) Customer acknowledges and agrees that the remedies set forth in Section 3(b) are Customer’s exclusive remedies for the delivery of Non-Conforming Purchased Hardware. Except as provided under Section 3(b), all sales of Purchased Hardware to Customer are made on a one-way basis and Customer has no right to return Purchased Hardware purchased under this Agreement to Operto.
5. Limited Warranty.
(a) For Purchased Hardware manufactured by Operto (each, an “Operto Product”), Operto warrants to Customer that, for a period of one (1) year from the date of shipment of the Operto Product (“Warranty Period”), the Operto Product will materially conform to Operto’s published specifications in effect as of the date of shipment. For Purchased Hardware of third parties sold through Operto, the term of the manufacturer’s warranty applies in lieu of the Warranty Period. Operto is not responsible for managing any warranty claims for third party Purchased Hardware.
(b) EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 4(a), OPERTO MAKES NO REPRESENTATION, CONDITION OR WARRANTY WHATSOEVER WITH RESPECT TO THE PURCHASED HARDWARE, INCLUDING ANY (I) REPRESENTATION, CONDITION OR WARRANTY OF MERCHANTABILITY; (II) REPRESENTATION, CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (III) REPRESENTATION, CONDITION OR WARRANTY OF TITLE; OR (IV) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(c) Purchased Hardware may be manufactured by a third party (“Third Party Products”) and/or may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Operto Products. Third Party Products are not covered by the warranty in Section 4(a). OPERTO MAKES NO REPRESENTATIONS, CONDITIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY: (I) REPRESENTATION, CONDITION OR WARRANTY OF MERCHANTABILITY; (II) REPRESENTATION, CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (III) WARRANTY OF TITLE; OR (IV) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. THIRD PARTY PRODUCTS MAY BE SUBJECT TO WARRANTIES PROVIDED BY THE APPLICABLE MANUFACTURER. BUYER AGREES TO PURSUE ANY SUCH APPLICABLE WARRANTY CLAIMS DIRECTLY AGAINST THE APPLICABLE MANUFACTURER.
(d) Operto shall not be liable for a breach of the warranty set forth in Section 4(a) unless: (i) Customer gives written notice of the defect, reasonably described, to Operto within 5 days of the time when Customer discovers or ought to have discovered the defect; (ii) Operto is given a reasonable opportunity after receiving the notice to examine the defective Operto Products and Customer (if requested to do so by Operto) returns the defective Operto Products to Operto’s place of business at Operto’s cost for the examination to take place there; and (iii) Operto reasonably verifies Customer’s claim that such Operto Products are defective.
(e) Operto shall not be liable for a breach of the warranty set forth in Section 4(a) if: (i) Customer makes any further use of the defective Operto Products after giving such notice; (ii) the defect arises because Customer failed to follow Operto’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the defective Operto Products; (iii) Customer alters or repairs the defective Operto Products without the prior written consent of Operto; or (iv) the defect arises as a result of mishandling, misuse or defective installation by or on behalf of Customer.
(f) Subject to Sections 4(d) and 4(e), with respect to any defective Operto Products during the Warranty Period, Operto shall, in its sole discretion, either: (i) repair or replace such defective Operto Products (or the defective part) or (ii) credit or refund the price of such defective Operto Products at the pro rata contract rate provided that, if Operto so requests, Customer shall, at Operto’s expense, return such defective Operto Products to Operto.
(g) THE REMEDIES SET FORTH IN SECTION 4(f) SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND OPERTO’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 4(a).