Terms and Conditions of Purchase
1. ORDER CANCELLATION, ENTIRE AGREEMENT AND MODIFICATION: These terms and conditions shall be deemed to be an integral part of the agreement (“Agreement”) arising from the acceptance by Seller of this purchase order for product (“Product”) or services (“Services”) described on the enclosed purchase order and shall conclusively be deemed (i) to constitute the entire agreement between Seller and Buyer with respect to the subject matter hereof and (ii) to supersede all prior or concurrent agreements, arrangements, understandings or other discussions, written or oral, between Buyer and Seller with respect thereto, notwithstanding (i) that Seller does not accept or ratify in writing these terms and conditions, (ii) any prior course of dealing between Buyer and Seller to the contrary and (iii) any terms and conditions of sale set out in any acknowledgement, sales confirmation, invoice or other communication from Seller to Buyer, and whether these terms and conditions were received by Seller before or after any communication to Buyer containing Seller’s terms and conditions of sale, or Buyer’s use of, or payment for, any Product or Services.
2. INFRINGEMENT: Except in respect of Product or Services specified by Buyer, Seller agrees to indemnify and hold harmless Buyer from and against all claims, demands, actions, causes of action, loss, cost and expense including, without limitation, reasonable legal expenses) suffered or incurred by Buyer in respect of any infringement or misuse or alleged infringement or misuse of any patent, trade mark, copyright or other proprietary right by Product or Services and Seller agrees that it will, at its expense, assume the defense of any claim, suit or any other proceeding in respect of any such actual or alleged infringement or misuse; provided that Buyer, at its option, may be represented by its own counsel in any such claim, suit or proceeding at Seller’s expense. If Buyer is enjoined from using Product or Services, Seller, in the case of Services, shell refund the original purchase price thereof and, in the case of Product, shall refund the original purchase price plus all transportation and other related costs. If Seller requires the return of such Product to it, Buyer, at Seller’s expense, shall return such Product.
3. WARRANTIES: Seller acknowledges (i) that in the case of Product or Services, buyer has made known to Seller the particular purpose for which Product or Services is required by Buyer and, (ii) in addition, in the case of Product, that Product may be resold by Buyer, either in its present or a manufactured form. Seller further acknowledges that it is in the ordinary course of Seller’s business to supply Product or Services and that Buyer has relied upon the skill and judgment of Seller in making this purchase. Seller represents and warrants that: (a) shall have good and marketable title to Product or Services delivered or provided by it pursuant to this Agreement; (b) all Product delivered shall (i) be free from all liens, taxes, charges or other encumbrances, (ii) be fit for the purpose for which Buyer requires Product, (iii) be of the highest commercial quality, (iv) be free from defects in materials and workmanship, whether latent or apparent, (v) be manufactured, delivered and provided in accordance with all applicable laws, regulations, rules, standards and orders of all lawful authorities having jurisdiction, (vi) if ordered by Buyer from a sample provided by Seller, correspond exactly with such sample with respect to quality and otherwise, and (vii) otherwise comply in all respects with Buyer’s specifications therefor; and (c) all Services provided shall (i) be free from all liens, taxes, charges or other encumbrances and (ii) comply in all respects with Buyer’s specifications therefor and all applicable laws, regulations, rules, standards and orders of all lawful authorities having jurisdiction. The provisions hereof shall be in addition to, and not in substitution for or in lieu of, any condition of sale, expressed or implied, or any other representation or warranty given by Seller in respect of Product or Services, expressed or implied, statutory or otherwise. In the case of Product, all representations and warranties provided for in this Agreement and all other conditions, representations and warranties arising in respect of the sale of Product may be assigned by Buyer to any buyer of all or any part of Product from Buyer (“Assignee”) and thereupon Seller shall be deemed to have given such conditions, representations and warranties directly to the Assignee and shall be liable to the Assignee in respect thereof as if such conditions, representations and warranties lied been given directly to the Assignee. Any claim by Buyer pursuant to this Section shall be made in writing within the later of (i) 12 months after the date of tie provision of Services or the delivery of Product to Buyer, and (ii) 60 days after the date on which the defect or failure to conform first comes to the attention of Buyer but in any event within five years after the date of the provision of Services or the delivery of Product to Buyer. In connection with any Product or Services which are defective or fail to conform, Buyer, at its option (but without prejudice to any other claims for any loss, damage or expense which it may suffer or incur as a consequence of such defect or failure to conform): (a) in the case of Product, may either return, if and to the extent that it is legally able to do so, defective or non-conforming Product to Seller, at Seller’s expense, and receive a credit for the purchase price plus all transportation and other related costs incurred in returning it or require Seller to replace the defective or non-conforming Product within a reasonable period of time to be agreed between Buyer and Seller; (b) in the case of Services, may require Seller to provide a credit for the purchase price or to provide replacement Services for the defective or non-conforming Services within a reasonable period of time to be agreed between Buyer and Seller; and (c) in addition, at Buyer’s option, may terminate its obligations to make any further purchases of Product or Services under this Agreement without penalty or liability to Buyer.
4. PACKING AND SHIPPING: Unless otherwise specified by Buyer, all Product to be shipped shall be properly packed and shipped. Seller, in connection with the packing, loading, handling and transporting of Product, shell comply in all respects with all applicable laws, regulations, rules, standards and orders of all lawful authorities having jurisdiction. Damage to Product resulting from improper packing and, if it is Seller’s responsibility, loading and/or handling of Product will be charged to Seller. Seller shall provide and issue all necessary documentation, including a detailed packing list to accompany all shipments, shipping notices, bills of lading and Canada customs invoices, in order to provide timely shipment and delivery of Product and Services in accordance with the provisions hereof.
5. DELIVERY: Time of delivery is of the essence of this Agreement, Product or Services may not be delivered or provided prior to the specified delivery date without Buyer’s consent. Buyer reserves the right to change delivery schedules or temporarily suspend scheduled shipments of Product or provision of Services provided that notice thereof is given by Buyer to Seller as far in advance as is reasonably possible. Without prejudice to any other rights and remedies, Buyer reserves the right to refuse the delivery of any further Product or the provision of any further Services and to terminate its obligation to make any further purchases of Product or Services under this Agreement without penalty or liability to Buyer if Seller fails to deliver all or any part of Product or Services so ordered in accordance with the terms of this Agreement, Acceptance of any Product or Services ordered shall not bind Buyer to accept future shipments of Product or the provision of Services nor deprive it of the right to return Product already accepted or, to the extent practicable, Services already provided. As well, if as a result of Seller’s failure to deliver, in accordance with the provisions of this Agreement, all or any part of Product or Services ordered hereunder Buyer is required to purchase any alternate product or services from another source, Seller shall pay to Buyer promptly against receipt of invoice all costs which Buyer may incur therefor in excess of the purchase price for Product or Services ordered hereunder.
6. PRICE: Prices for Product or Services ordered under this Agreement will be as shown on the reverse hereof f.o.b. Buyer’s premises designated by it or, if not shown, at prices no higher than those last quoted or charged by Seller to Buyer and, unless specified by Buyer, will include all applicable duty and all applicable federal, state and provincial taxes; provided that if prior to shipment of any Product or the provision of Services, Seller sets a louver price for Product or Services in any price list or quotes or charges a lower price for comparable quantities of Product or a comparable amount of Services, the price which Seller will charge Buyer for Product or Services ordered under this Agreement shall be deemed to be such lower price. Buyer reserves the right to claim refunds on any refundable amounts of duty or taxes for Buyer’s account and Seller will make available to Buyer such of its records as are necessary to enable such recovery. Unless otherwise specified on the reverse hereof, full payment shall be made within 30 days after the later of acceptance of Product or Services and receipt of the invoice therefor.
7. CHANGES: Buyer, by written change order, may at any time (i) make changes in the drawings, designs and/or specifications applicable to Product, the method of shipment and pecking and/or the place of delivery of Product or (ii) make changes in specifications of Services. If any such changes are requested, Buyer and Seller shall mutually agree to any adjustment to the purchase price, delivery schedule or both which may be required. Seller shall not make any changes in the design or specifications of any Product or Services ordered without the prior written approval of Buyer.
8. TERMINATION: In addition, and without prejudice to any other rights of termination specifically provided in this Agreement, provision by Seller of Product or Services ordered under this Agreement may be terminated, in whole or in part, by Buyer at its option at any time before delivery of all of Product or Services ordered by written notice of termination to Seller, If such right of termination is exercised by Buyer, Buyer and Seller shall mutually agree any termination charges which may be payable. Except as provided in this section, no termination charges will be payable by Buyer
9. INSPECTION: Buyer shell have the right to inspect Product or Services being provided prior to payment and acceptance and, without limitation, Buyer reserves the right to inspect any Product or Services ordered under this Agreement at Seller’s premises or other relevant locations within a reasonable period prior to shipment of Product or the provision of Services. Seller shall provide all reasonable facilities and assistance for the safety and convenience of Buyer without charge in connection with any such inspections Notwithstanding any payments or prior inspections, all Product or Services is subject to final inspection and acceptance at Buyer’s plant after delivery of Product or the provision of Services and the entire shipment of Product or provision of Services may be rejected on the basis of a partial inspection. If legally able to do so, Buyer shall return all rejected Product to Seller as soon as reasonably possible and Seller shall pay all warehousing, storage, packing and shipping costs incurred by Buyer in connection with such Product, If rejected Product cannot legally be returned to Seller, Buyer may dispose of such Product at Seller’s expense. Buyer shall give written notice to Seller of the rejection of any Services as soon as reasonably possible. Seller, immediately upon receipt of an invoice therefor, shall credit Buyer’s account or pay to Buyer, whichever is requested by Buyer, the purchase price of rejected Product or Services plus, in the case of Product, all additional costs contemplated above.
10. INFORMATION: Designs, drawings and other information supplied by Buyer shall remain or be, as the case may be, Buyer’s property and shall be held in confidence by Seller and not disclosed to any other party except those having a need to know in order to fulfill Seller’s obligations under this Agreement. All copies of such designs, drawings and other information, at the option of Buyer, shall be returned to Buyer upon completion of Seller’s obligations under this Agreement or on demand or destroyed. Seller shall not advertise nor publish in any manner the fact that Seller has contracted to furnish Product or Services under this Agreement without Buyer’s prior written consent.
11. TITLE: Notwithstanding anything in this Agreement to the contrary, title to Product or Services purchased under this Agreement shall not pass until delivered or provided to Buyer and Buyer has inspected and accepted the same in accordance with the provisions hereof. All risk of loss prior to such inspection and acceptance shall be for Seller’s account.
12. SET-OFF AND ASSIGNMENT: Buyer shall be entitled to set-off any amount owing from Seller or any of its subsidiaries, associates or affiliates to Buyer or any of its subsidiaries, associates or affiliates against any amount payable at any time by Buyer under this Agreement. Seller shall not assign, subcontract or otherwise delegate in any manner whatever to any other person the supply of Product or Services ordered without the prior written consent of Buyer.
13. WAIVER: Waiver by either party of any default hereunder by the other party shall not be deemed a waiver of any subsequent default.
14. RETURN OF PRODUCT: If, in any circumstances contemplated in this Agreement, Buyer is entitled or required to return Product to Seller, it shall only be entitled or required to do so if, and to the extent, it is legally able to do so.
15. DISPUTES: Any dispute arising out of, or in connection with, this Agreement shall be submitted to, and finally resolved by, arbitration in the Province of Ontario and shall be conducted pursuant to the applicable arbitration legislation of that Province and the rules thereunder.
16. APPLICABLE LAW: This Agreement shall he deemed to have been entered into in the Province of Ontario and shall be governed by and construed in accordance with the laws in effect in the Province of Ontario. The parties expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods.
17. LANGUAGE: The parties hereto acknowledge that they have expressly required that this document and all deeds, documents or notices relating thereto be drafted in the English language. Les parties aux presentes reconnaissent qu’ils ont exige expressement que ce document at tous autres concrats, documents ou avis qui y sont afferents soient rediges en langue anglaise.