Terms And Conditions

1.1 These terms and conditions, the End User Licence Agreement (EULA) (where applicable (see clause 1.4)), the accompanying quotation and/or confirmation (the “Order”) and the relevant sales invoice (together, the “Contract”) shall constitute the only and entire agreement between the customer named on the Order (the “Customer”) and 2356918 Ontario Inc. operating as ‘Foresight Sports Canada’, a company incorporated under the laws of Ontario (the “Company”) relating to the sale and purchase of the products and services that are the subject of the Contract and detailed on the Order (the “Product(s)” and/or “Services”).

1.2 The Contract comprises the entire agreement between the parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. The Contract prevails over any of Customer’s general terms and conditions of purchase regardless of whether or when the Customer has submitted such terms. Fulfilment of the Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend the Contract.

1.3 The Contract may only be varied with the express written consent by the authorized representative(s) of the Company and the Customer, referencing the Contract.

1.4 Where software is used or purchased, the use of the software shall also be governed by an EULA with the relevant third party licence provider, the latest copy(ies) of which can be accessed by clicking on the relevant Product website links as follows:

By accepting the terms of the Contract, the Customer agrees and acknowledges that it has read and understood the terms of the relevant EULA as well, and agree to be bound by the terms of the relevant EULA, as and if applicable, which EULA is/are incorporated by reference into the Contract.

2.1 Orders accepted by the Company cannot be amended or cancelled, or shipments deferred, by the Customer, except with the prior written consent of the Company and upon terms that will reasonably compensate the Company against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Company as a result of the amendment, cancellation or deferral on a full indemnity basis, and including a re stocking fee where reasonably requested by the Company.

2.2 The Company shall be entitled to cancel the Order at any time by giving written notice to the Customer, in the event that the Product(s) cannot be procured for installation or shipment due to no fault of the Company or for any other reason outside the control or purview of the Company (including increased payments/costs, fraudulent payment, non-payment or any other form of negligence or misrepresentation on part of the Customer or any other third party whatsoever). If the Company exercises its right to cancel it shall have no liability in respect of the Order or in respect of any damage whatsoever arising from the cancellation other than to return any payments in accordance with clause 3.2 minus any reasonably incurred expenses incurred by the Company.

2.3 The Customer will bear the full costs and expenses of  returning the Product(s).

2.4 In the case of Service(s), including but not limited to the installation of a simulator, the Company shall further invoice or deduct from any refund an amount for the supply of materials, works completed and time used for which the Services were supplied, up until the time when the Customer advised of their intention to cancel in writing. The amount will be in proportion to what has been supplied, in comparison with the full coverage of the Contract. Any custom designed materials for an installation whether shipped or not at time of cancellation are not returnable and the Customer has the option to receive with a shipping cost any of these completed works and use or sell as they see fit or can instruct the Company that they have no interest in the Product(s) and the Company can dispose them or rework them as they see fit with no expectation of a refund for the Product(s).

3.1 The Company sells the Product(s) and Services at the price(s) set out on the Order (the ”Price”) which unless otherwise stated by the Company is inclusive of all Canadian import duties and import costs. The Price includes sales tax which shall be applied where applicable and calculated in accordance with the prevailing rate as at the date of the invoice for the Product(s) and Services rendered by the Company. Full payment (cleared funds) is required to initiate the delivery of the Product(s) or supply of the Services under the Order except in the case of a full simulator order which shall be in accordance with clause 3.2 below.

3.2 For full simulator orders and orders that require manufacture or installation, a non-refundable retainer invoice of fifty percent (50%) of the Price (plus applicable tax) is due from the Customer at the time the Order is placed. Notwithstanding any delays caused by either party, where the Product(s) and Services include installation by the Company the remaining fifty percent (50%) of the Price is due and payable no later than ten (10) working days prior to the original, confirmed installation date as notified by the Company. Where the Product(s) are not installed by the Company the balance of the fifty percent (50%) Price is payable within ten (10) days prior to shipment to or collection by or on behalf of the Customer.

3.3 After receipt of the Order and at any time prior to delivery, the parties expressly acknowledge and agree that the Price will be revised accordingly in the event of any change in its overall costs of the Product(s) changing since the time of the Order, or any prevailing conditions (including but not limited to the changes in the supply chain of the Product(s) or Services) that may impact the Product(s) or Services, or the Customer requesting amendments to the Order once this has been agreed. In such circumstances, the Company will notify the Customer in writing within seven (7) working days of the determination of the revised Price and the Customer may then cancel the Order in writing to the Company within seven (7) days of receipt of the revised Price, unless in the meantime the Customer accepts the Order by allowing delivery of the same, in which case, the revised Price is due and payable as per the terms of the Order and the Contract shall be construed as if the increased Prices were originally incorporated herein, and the Customer shall be billed by the Company on the basis of such increased Prices.

3.4 Where the Company provides installation services, the Company reserves the right to charge the Customer additional sums in relation to any costs and inconvenience caused by matters beyond the control of the Company, including but not limited to agreed installation dates being changed by the Customer or their representatives, delays or extra works caused by a change in design, the site not being ready on the agreed date in accordance with the requirements of the Company, and for any other delays and extra works or additional Services carried out by the Company pursuant to matters that arise during the installation.

3.5 The Customer may not withhold payment of any invoice or other amount due to the Company by reason of any right of set-off or counterclaim which the Customer may have or allege to have against the Company.

4.1 Unless otherwise stated on the Order or invoice, the Price includes all freight, insurance, loading costs and other expenses incurred in connection with the delivery of the Product(s) and Services by the Company or its nominated agent. The time of delivery will be at the Company’s discretion unless other arrangements are made with the Customer and will be notified to the Customer prior to delivery. Delivery is conditional upon payment of the Price in accordance with the payment terms under the Contract.

4.2. The Customer shall make all necessary arrangements to receive the Product(s) and Services at the time and date specified by the Company and unless otherwise agreed in the Order, the Customer is responsible for the unloading of the Product(s) and moving them to the required position(s) on site, including for the payments associated with such unloading and related labor and equipment reasonably required to deliver the Product(s). For orders that require installation, the Customer shall ensure that it has made all arrangements necessary to conform with the pre-installation checklist provided to the Customer (which should be completed and returned as early as possible in order that an installation date can be scheduled) or other documents as required by the Company. The Customer remains liable for all local taxes and duties imposed, and the Company cannot be held liable, nor incur additional cost, should the Product(s) incur demurrage or be returned to source as a result of late or non-payment by or any other reason attributable to the Customer.

4.3 The Company may, in its sole discretion, without liability or penalty, make partial shipments of the Product(s) to the Customer. Each shipment will constitute a separate sale, and the Customer shall pay for the units shipped whether such shipment is in whole or partial fulfilment of the Customer’s Order.

4.4 If for any reason the Customer fails to accept delivery of any of the Product(s) on the date fixed pursuant to the Company’s notice that the Product(s) have been delivered at the requested site, or if Company is unable to deliver the Product(s) at the requested site on such date because the Customer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Product(s) shall pass to Customer; (ii) the Product(s) shall be deemed to have been delivered; and (iii) the Company, at its option, may store the Product(s) until the Customer picks them up, whereupon the Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance.

4.5 With respect to the Services, the Customershall (i) cooperate with the Company in all matters relating to the Services and provide such access to the Customer’s premises, and such office accommodation and other facilities as may reasonably be requested by the Company, for the purposes of performing the Services; (ii) respond promptly to any of the Company’s request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for the Company to perform Services in accordance with the requirements of the Contract; (iii) provide such Customer materials or information as the Company may reasonably request and the Customer considers reasonably necessary to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.

4.6 The time of delivery and/or installation is estimated only and is not guaranteed by the Company due to the Company’s importation of the Product(s) or its availability, possible supply chain delays and the resultant lead times. The Company shall have no liability to the Customer for any late delivery, loss or damage in transit, or any unexpected or unanticipated delays in installation. The Company shall inform the Customer as soon as practicable if an Order will be delayed and provide the Customer with a new estimated delivery and/or installation date.

4.7 Delays in the delivery of an Order shall not entitle the Customer to:

4.7.1 refuse to take delivery of the Order;

4.7.2 terminate the Contract; or

4.7.3 demand a reduction in the price or request a refund.

4.8 The Company shall have no liability to the Customer for the Customer’s failure to take delivery of the Product(s) and/or Services for any reason unless the Customer has informed the Company in writing that the Product(s) and/or Services are defective, and after fair and reasonable assessment, the Company agrees. Reasonable access to the Product/s and/or Services to perform the assessment cannot be unreasonably withheld by the Customer. The Company shall at its sole discretion request that the Customer stores the Product(s) at the Customer’s sole cost and risk, until collection can be made by the Company.

4.9 For simulator sales or sales of bulky items, the Customer shall notify the Company not less than fourteen (14) days prior to dispatch for installation of any requirements or restrictions affecting delivery of the Product(s) and of any health and safety and/or working practices or procedures that must be adopted by the Company. The Company reserves the right to make an additional charge if any such requirements, restrictions, practices or procedures increase its costs of delivery or installation or any other of the Product(s) and Services.

4.10 The Customer assumes all risk and liability for any self-installation, labour or assistance provided to assist the Company’s technician(s) during any installation process. The additional personnel must be covered by the Customer’s insurance policy which should provide adequate cover in relation to and including but not limited to damage to property, accidents, injury, death, etc. howsoever arising. Personnel will be provided at the Customer’s own risk, cost and expense and must follow the lawful and reasonable instructions of the Company’s technicians at all times. The Company will not be liable for any delays, loss, damage or costs arising from the errors, acts and/or omissions by the Customer or the Customer’s personnel, and any costs arising from such actions will be fully recoverable by the Company.

4.11 Where the Company or its agents deliver the Product(s) without installation services being provided, title and risk shall pass to the Customer when the delivery vehicle enters onto the Customer’s property, or, if it is not possible for the delivery vehicle to enter the Customer’s property, when the delivery vehicle parks for the Product(s) to be unloaded onto the Customer’s property. The Customer shall cause and ensure that is has adequate insurance coverage for the Product(s) from such point onwards. As collateral security for the payment of the Price of the Product(s) and/or the Services, the Customer hereby grants to the Company a lien on and security interest in and to all of the right, title and interest of the Customer in, to and under the Product(s), 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 Ontario Personal Property Security Act.

4.12 Where the Customer collects the Product(s) from the Company or arranges collection via a third party the risk shall pass to the Customer at the point the Customer or third party take possession of the Product(s), or immediately prior to the Product(s) being loaded onto or into the collection vehicle, whichever is the sooner. If the Company’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or its agents, subcontractors, consultants or employees, then the Company shall not be deemed in breach of its obligations under the Contract or otherwise liable for any costs, charges or losses sustained or incurred by the Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.

4.13 The Customer will be liable for any costs or fees associated with missed collections, for any reason whatsoever.

5.1 Receipt by the Company of the Order and or an initial payment shall be conclusive evidence of the sale. All sales are final and save for defective Product(s) which shall be dealt with in accordance with clause 5.2, no returns will be accepted without prior written authorization from the Company.

5.2 You must examine the Product(s) immediately upon receipt of delivery and if the Product(s) are being installed by the Company, again immediately upon installation and in either case within five (5) working days thereafter notify the Company in writing of any damage or defects. At the Company’s election, it may inspect the alleged faulty Product(s) at the installation site or require the alleged faulty Product(s) be returned to the Company (or such other place as it shall reasonably direct) for inspection. The Customer will return any allegedly faulty Product(s) within fourteen (14) days of such request, at its sole risk and ensuring it has the requisite insurance coverage in respect of shipping, delivery or return of the Product(s). The Customer will pay the costs and expenses of any such return and will pay to the Company the reasonable costs of any tests carried out on the Product(s) (such cost to be notified by the Company) together with the costs of return thereof to the Customer. If the Customer timely notifies the Company as above in respect of the non-confirming Product(s), the Company shall, in its sole discretion, (i) replace such non-confirming Product(s) with conforming Product(s), or (ii) repair such non-confirming Product(s), together with any reasonable shipping and handling expenses incurred by the Customer in connection therewith. The Customer shall ship, at its expense and risk of loss, the non-confirming Product(s) to the Company’s facility as designated by the Company. If the Company exercises its option to replace non confirming Product(s), the Company shall, after receiving the Customer’s shipment of non-confirming Product(s), ship to the Customer, at Customer’s expense and risk of loss, the replaced Product(s) to the requested site. The Customer acknowledges and agrees that the remedies set forth in this clause are the Customer’s exclusive remedies for the delivery of non-conforming Product(s). Except as provided in this clause, all sales of Product(s) to the Customer are made on a one-way basis and the Customer has no right to return the Product(s) to the Company, as purchased under the Contract.

5.3 In the absence of any notice of defect pursuant to clause 5.2, the Customer will be deemed to have examined and accepted the Product(s) in full. Where the Contract is for the sale of two or more Products comprising a single unit, then, in accepting any of the Products included in the one unit, the Customer (unless expressly stated to the contrary) is deemed to have accepted all of the Products making up that unit.

Unless otherwise stated by the Company and where provided, the provision of training may either be remote via the Support Desk or on-site, immediately following an installation. It remains the Customer’s responsibility to ensure that the appropriate personnel are available at the time and place agreed for training. The level of technical support provided shall be in accordance with the support contract agreed between the parties, and separately paid for by the Customer. Support Desk hours are weekdays between 9.00am to 5.00pm (EST) and exclude national holidays. The provision of services beyond the free support offered under each respective support contract will be chargeable at the price/s quoted or as specified in the support contract or price lists, a copy of which is available on request.

7.1 Subject to the provisions of the Contract and the Customer’s strict compliance with the Contract and guidance and instructions in any manual/s supplied with the Product/s (the “Manual”) and all other conditions confirmed in writing to the Customer from time to time, the Company warrants for a period of one (1) year (unless otherwise expressly stated in clause 7.2, or in the Order or invoice for instance in relation to refurbished products product/s where a shorter warranty period and different terms may apply) from the date of shipment of the Product(s), that the Product(s) will materially conform to the manufacturer’s specifications and warranties or any specifications provided by the Customer and expressly agreed to in the Order by the Company. If during the one-year limited warranty period the Product is found by the Company to be defective, the Company will either repair the Product, replace the defective Product with a new Product, or exchange the Product with an equivalent Product. This limited warranty is available only to the original purchaser of the Product(s) (unless in the case of a simulator the Company carries out the de-installation and re-installation of the Product) and is expressly made in lieu of all other warranties, express or implied, and the Customer expressly agrees and acknowledges, will be the sole and exclusive remedy to the Customer, in relation to the defective Product(s).

7.2 The warranty in clause 7.1 does not apply to Product(s) that have been refurbished, sold as a certified pre-owned unit, or damaged by accident, shipment, handling or abuse, or alterations or repairs not performed by the Company including the addition of any software to the computer or the connection to any web or internet site or service not approved by the Company, or any defect arising from wilful damage or negligence of the Customer or any of its personnel or any third-party whatsoever, or failure to follow the Company’s reasonable instructions for operation and maintenance including but not limited to the Manual. Consumable items, including but not limited to screens, tees, hitting mats, GC2 flash modules and projector bulbs and any other items that wear out due to normal usage are excluded from the warranty. Items not manufactured by the Company or Foresight Sports Inc., such as Puttview, Swing Catalyst, projectors and touchscreens, computers, etc. are covered by their respective manufacturer or supplier’s warranty. The Company will not warrant interruptions in the performance or operation of the software, or hardware due to acts of God (power failures, storms, etc.) or computer or software viruses or similar instances. The Customer acknowledges that it is not possible to test computer software and hardware in all possible circumstances and that it is therefore not possible to produce software that is free from error in all respects. Similarly, the Company cannot warrant that any hardware recommended or sold will work with all future upgrades to the software.

7.3 To make a claim under the limited warranty provided in clause 7.1, the Customer must (1) notify the Company’s Technical Support Department in writing of the nature of the problem within the warranty period and obtain instructions for obtaining service, and (2) at the Company’s sole discretion make the defective Product(s) available for inspection by the Company in situ or deliver the defective Product(s) to the Company, to the address designated by the Company in packaging that will protect against further damage. At the Company’s option, the Product(s) may be serviced at the Customer’s location or at a location designated by the Company. In the event of repair, the Customer is responsible for shipping/delivery to the predetermined repair location and the Company will pay return shipping if within warranty. If out of warranty, the Customer will be responsible for all charges pertaining to repair, or shipping/delivery charges.

7.4 The Company shall be under no liability under the warranty (or any other warranty condition or guarantee) if the Price has not been paid in full or if the Customer has opened, dismantled or tampered with the Product(s) without the authorization of the Company.

7.5 EXCEPT FOR THE WARRANTY SET FORTH IN THIS CLAUSE 7, THE COMPANY MAKES NO CONDITION OR WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS OR SERVICES, INCLUDING ANY (a) CONDITION OR WARRANTY OF MERCHANTABILITY; OR (b) CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) CONDITION OR WARRANTY OF TITLE; OR (d) 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.

7.6 Products manufactured by a third party (“Third Party Product“) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Product(s). Third Party Products are not covered by the warranty in clause 7. For the avoidance of doubt, THE COMPANY MAKES NO REPRESENTATIONS, CONDITIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) CONDITION OR WARRANTY OF MERCHANTABILITY; (b) CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) CONDITION OR WARRANTY OF TITLE; OR (d) 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.

7.7 The Company shall not be liable for a breach of the warranty set forth in clause 7 if: (i) the Customer makes any further use of such Product(s) after giving such notice; (ii) the defect arises because the Customer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Product(s); or (iii) the Customer alters or repairs such Product(s) without the prior written consent of the Company.

7.8 THE REMEDIES SET FORTH IN CLAUSE 7 SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND THE COMPANY’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN CLAUSE 7.

8.1 This clause sets out the entire financial liability of the Company (including any liability for the acts or omissions of the Company’s respective employees, agents and sub-contractors) to the Customer in respect of any breach of the Contract; or any use made of the Product(s) (or of any product incorporating any of the Product or any Third Party Product) by the Customer; and in respect of any representation, statement, act or omission (including negligence) arising under or in connection with the Contract or the Product(s) and Services.

8.2 Subject to the remainder of this clause 8, the Company’s total liability in connection with the Contract and the Product(s) and Services as a result of injury or damage to property as a result of the Company’s negligence shall not exceed two hundred percent (200%) of the Price. The Company’s total liability in connection with the Contract and the Product(s) and Services from any other cause shall not exceed the amounts paid by the Customer for the Product(s) and Services directly related to the damage.

8.3 Subject as expressly provided in the Contract, the Company disclaims all other warranties and conditions of any kind with respect to the Product(s) and Services, either express or implied, including without limitation, any implied warranties or conditions of merchantability and fitness for a particular purpose to the fullest extent permitted by the law.

8.4 The Company shall have no liability to the Customer or any other person, for special, indirect, incidental, special, exemplary or punitive or consequential damages related to the Contract or the Product(s) and Services, including without limitation, damages due to loss of business, revenue, goodwill, data, programs or profits, regardless of the form of action, whether in contract, tort, or otherwise, and whether or not the Company is informed of the possibility thereof in advance.

9.1 The use of the Product(s) and/or simulated golf equipment and all attendant activities, including but not limited to, swinging golf clubs and/or hitting golf balls outside or within an enclosed environment is a dangerous calculated risk activity which can result in serious permanent bodily injury or death to its participants or bystanders which the Company cannot entirely eliminate. The Customer understands that in the absence of any direct negligence or other breach of duty by the Company, the Customer, and/or any persons who the Customer permits to use the Product(s) does so entirely at their own risk and liability.

The Customer assumes all risks of any nature for any death, injury or other damages to the Customer or third party, the Customer’s property and the property of others, foreseeable or not, which may in any way arise, directly or indirectly, out of the sale and/or use of the Product(s), and from the actions – specifically including any negligent acts or omissions – of all persons involved either directly or indirectly in the simulated golfing activities made possible by the Product(s). The Customer acknowledges and agrees that while dangerous and risky, the activities covered by the Contract are not ultra-hazardous activities for which one can be held strictly liable. Rather, they are recreational activities in which the Customer, and persons acting through the Customer, will be voluntarily participating for their own enjoyment.

9.2 The Customer warrants and represents that all persons using the Product(s), including the Customer, if the Customer is an individual, and all employees, clients, guests, invitees of the Customer and those for whom the Customer is legally responsible at its premises or site, and all other persons, are of sufficient age, understanding and skill to use the Product/s and all ancillary equipment in a controlled and responsible manner, and are in good physical and mental health and able to withstand the physical and mental stresses inherent in the activities relating to the use of the Product(s). The Customer further states and represents that he, she or it will not permit use of the Product(s) by any person who has a health related problem or condition that may affect the person’s ability to participate in any activities relating to the Product(s), or affect the safety of those around them, or by any person under the influence of alcohol, controlled substances, or drugs, prescription or otherwise, prior to or during any activities involving or relating to the Product(s).

9.3 It is the Customer’s sole responsibility to determine what, if any, health and safety or product liability warning notices, instructions or other labelling should be displayed on, about and/or with the Product(s), where they should be located or when they should be provided. Without prejudice to the Customer’s 9obligations stated above the Customer shall not remove, cover, alter or otherwise tamper with any such notices, instructions or labelling that may be placed on or with the Product(s) by the Company or original manufacturer.

9.4 The Customer is responsible to ensure that the Product(s) are used safely and as directed. The Customer must follow and clearly communicate any safety instructions to prevent damage to property, injury and/or death and ensure that the Product(s) are not tampered with in any manner, shape or form and maintain the Product(s) in strict compliance with the Company’s operating instructions, guidance, maintenance instructions and/or training and the Manual. In the absence of any negligence or other breach of duty by the Company, the use of the Product(s) is entirely at the Customer’s risk and expense.

9.5 The Customer should satisfy themselves prior to order that the Products and/or Services and the environment in which the Products and or Services are to be incorporated including but not limited to any simulator design or structure design is suitable and safe for their circumstances and or where the Customer supplies or installs any equipment or carries out any works themselves that they are aware that the responsibility and liability for the design, safety and use of the Products and environment lies with them in accordance with this provision and the other provisions in the Contract and that they should take measures to eliminate or negate the effects of the Product(s) (to include any leading edges or design elements) that could lead to loss or damage to any property or person.

9.6 The Customer shall indemnify and hold the Company harmless against any claim by or any loss or damage to any person or property occasioned directly or indirectly by or arising from the use or operation or possession of the Product(s) or any part of the Product(s) and from negligence (including the use of any part of the Product(s) otherwise than in accordance with the Company’s operating instructions and manuals) or default (including any noncompliance with any obligation imposed by the Contract , wrong information or lack of required information for or on part of the Customer) or misuse by or on the part of the Customer or any person or persons other than the Company and this indemnity shall extend to any costs and expenses incurred by the Company and shall continue in force notwithstanding the termination of the Contract or any other agreement between the Customer and the Company.

9.7 The Customer shall indemnify and hold the Company harmless against any claim by or any loss or damage to any person or property occasioned directly or indirectly as a result of any breach of the Customer’s obligations under the Contract or as a result of any customization or alteration carried out to the Product(s) by the Customer whether such works are approved by the Company or not or where the works are carried out by the Company at the request of the Customer. Any attempts by the Customer to disassemble, modify or repair any Product(s) or any component parts without the express prior written authorization of the Company shall automatically render the warranty under the Contract null and void.

9.8 The Customer shall conform with all instructions and labelling prescribed by the Company in relation to any health and safety legislation.

9.9 Subject to clause 8.2, the Customer shall have no claims to indemnity in respect of and shall fully indemnify the Company, its employees, agents and representatives against any claims by third parties (and all related costs and expenses) in respect of death or personal injury not caused by the Company’s negligence.

9.10 Where the Company does not supply and install the complete, fully enclosed simulator, where room dimensions differ from the Company’s recommended minimums and/or where the Company does not carry out all design and installation works itself, the Customer accepts full risk, responsibility and liability stemming from the design, set-up, use, and operation of the Product/s and simulated golf equipment.

9.11 The Customer/user of the equipment must inspect the Product/s and/or simulated golf equipment prior to each and every use to ensure the Product/s and/or simulated golf equipment is secured, in good working order, and that any safety features are correctly installed, maintained and in their correct positions.

10.1 In spite of delivery and installation (if applicable) having been made and risk being passed the title in the Product(s) shall not pass from the Company until the Customer shall have paid the Price plus applicable taxes in full, and any other sums whatever due from the Customer to the Company whether under the Contract or any other agreement.

10.2 Until title in the Product(s) passes to the Customer in accordance with clause 10.1, the Customer shall hold the Product(s) and each of them on a fiduciary basis as bailee for the Company. The Customer shall where possible store the Product(s) (at no cost to the Company) separately from all other goods in its possession and marked in such a way that they are clearly identified as the Company’s property.

10.3 Until such time as the title in the Product(s) passes from the Company, the Customer shall upon request deliver up such of the Product(s) as have not ceased to be in existence or been resold to the Company. If the Customer fails to do so the Company may enter upon any premises owned, occupied or controlled by the Customer where the Product(s) are situated and repossess the Product(s).

10.4 The Customer shall insure and keep insured with a financially sound and reputable insurance company the Product(s) against all risks from the time risk passes to it in accordance with clause 4.6 until such time as title in the Product(s) is vested in it in accordance with clause 10.1 and the Customer shall indemnify the Company against any costs, claims, losses, or expenses of any kind incurred by the Company as a result of its failure to do so.

10.5 For the avoidance of doubt, the Company shall have the right to resell any Product in its possession for repair in the event of the Customer’s failure to pay for the repair.

11.1 The benefit of the Contract and the warranties contained herein are personal to the Customer and may not be assigned, transferred, or dealt with in any way by the Customer.

11.2 The Customer shall indemnify the Company against any loss, cost, expense or damage incurred by the Company arising from the use or sale of the Product(s) by the Customer or any person acquiring the Product(s) through the Customer, save to the extent caused by the Company’s negligence or wilful misconduct.

11.3 The sale or transfer of ownership of any Company Product/s (hardware, software or both) from the original Customer to any third party shall incur an administration fee, chargeable at the current rate at the time of transfer, to register the product/s in the new customers’ name.

The Customer is granted a conditional, non-transferable, non-exclusive and limited license to use the proprietary software originally installed with the Product(s) as defined in the EULA for as long as the Customer owns the Product(s) or as stated on the Order or invoice if the licence is non-permanent or geographically limited, the usage of which is subject to the EULA which is available from the relevant Product website, incorporated by reference into the Contract, and the Customer agrees and acknowledges that it has read and understood the terms thereof. The license is conditioned upon full and timely payment by the Customer of all sums due to the Company and may be revoked without notice if the Customer is in default of any payment or any provision of the Contract. No part of the Company’s proprietary software may be used separately from the Product(s). The Company reserves the right to periodically manufacture updates and enhancements to its proprietary software and to license the same on such terms and conditions as the Company may from time to time determine. Unless otherwise stated on the Purchase Order, the Price does not include any upgrades. Unless otherwise agreed, any upgrades or enhancements sold to the Customer shall be subject to the same licensing conditions and restrictions set forth herein.

The Customer acknowledges that the Product(s) contain trade secrets of the Company, the license providers/owners under the EULAs or other third parties and agrees not to reverse engineer or disassemble the Product(s). The Customer also agrees not to remove, hide, deface or tamper with any intellectual property notices or any other notices or branding appearing on the Product(s).

All non-public, confidential or proprietary information of the Company (including those relating to the Product(s) or the Services), and including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Company to the Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with the Contract is confidential, solely for the use of performing the Contract and may not be disclosed or copied unless authorized in advance by the Company in writing. Upon the Company’s request, Customer shall promptly return all documents and other materials received from the Company. The Company shall be entitled to injunctive relief for any violation of this clause. This clause does not apply to information that is: (a) in the public domain; (b) known to the Customer at the time of disclosure; or (c) rightfully obtained by the Customer on a non-confidential basis from a third party.

Time of payment shall be of the essence of the Contract. Interest shall accrue from the date that the amount becomes due for payment until the date of actual payment at the rate of twenty-four percent (24%) per annum. The Customer will indemnify the Company in respect of all costs and expenses incurred in connection with the recovery of all overdue amounts due and payable under the Contract. The Customer shall reimburse the Company for all costs incurred in collecting any late payments, including, without limitation, legal fees on a full indemnity basis. In addition to all other remedies available under the Contract or at law (which the Company does not waive by the exercise of any rights hereunder), the Company shall be entitled to suspend the delivery of any Product(s) or performance of any Services if the Customer fails to pay any amounts when due hereunder and such failure continues for twenty (20) days following written notice thereof.

15.1 The Customer agrees to use the Product(s) only in compliance with applicable law and regulations and will be solely responsible for obtaining any necessary government or other approvals applicable to the Customer’s use including but not limited to planning permissions, fire regulations, and structural loading approvals. The Customer shall comply with all applicable laws, regulations and ordinances. The Customer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Contract. The Customer shall comply with all export and import laws of all countries involved in the sale of the Product(s) under the Contract or any resale of the Product(s) by the Customer. The Customer assumes all responsibility for shipments of the Product(s) requiring any government import clearance. The Company may terminate the Contract if any governmental authority imposes antidumping or countervailing duties or any other penalties on the Products.

15.2 If any provision of the Contract shall be held to be unenforceable by a court of appropriate jurisdiction, then such provision shall be enforced to the maximum extent permitted by applicable law and the remaining provisions of the Contract shall remain in full force and effect.

15.3 All matters arising out of or relating to the Contract are governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein without giving effect to any choice or conflict of law provision or rule (whether of the Province of Ontario or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Province of Ontario. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Contract.

15.4 Any legal suit, action, litigation or proceeding of any kind whatsoever in any way arising out of, from or relating to the Contract, including all exhibits, schedules, attachments, and appendices attached to the Contract, and all contemplated transactions, shall be instituted in the courts of the Province of Ontario, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, litigation or other proceeding brought in any such court. Each party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The parties irrevocably and unconditionally waive any objection to the venue of any action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.

15.5 All notices given by the Customer to the Company and vice versa must be given at the postal and email addresses of the respective parties set out on the Order. Notice will be deemed received and properly served immediately if delivered by hand or once signed for where sent by recorded or registered post and when sent by email at the time of transmission.

15.6 If any term or provision of the Contract is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of the Contract or invalidate or render unenforceable such term or provision in any other jurisdiction.

15.7 The Company shall not be liable or responsible to the Customer, nor be deemed to have defaulted or breached the Contract, for any failure or delay in fulfilling or performing any term of the Contract when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of the Company including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of forty-five (45) continuous calendar days, then either party shall be entitled to give notice in writing to the other party to terminate the Contract.

15.8 The Customer shall not assign any of its rights or delegate any of its obligations under the Contract without the prior written consent of the Company. Any purported assignment or delegation in violation of this clause is null and void. No assignment or delegation relieves the Customer of any of its obligations under the Contract.

15.9 The relationship between the parties is that of independent contractors. Nothing contained in the Contract shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

15.10 The Contract is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Contract.

15.11 No waiver by the Company of any of the provisions of the Contact is effective unless explicitly set forth in writing and signed by the Company. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from the Contract operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

15.12 In addition to any remedies that may be provided under the Contract, the Company may terminate the Contract with immediate effect upon written notice to the Customer, if the Customer: (a) fails to pay any amount when due under the Contract; (b) has not otherwise performed or complied with any of the terms of the Contract, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. 15.13 Customer’s personal information will only be used as set out in the Company’s Privacy Policy. This is also available on the Company’s website https://foresightsports.ca/privacy/.

16.1 All Product(s) sold by the Company can be activated for use within the Company’s usage region, i.e., Canada (‘the usage region’). To activate a Product/unit purchased outside of the usage region for use within the usage region will incur a registration fee chargeable at the current rate at the time of activation.

Should a Customer wish to utilize a unit purchased from the Company outside of the usage region, the Customer may need to contact the international distributor in the destination region for the unit to be unlocked.