Purchase Order Terms and Conditions

Canada

Purchase Order Terms and Conditions

Canada

1. THIS ORDER IS SUBJECT TO ALL THE TERMS AND CONDITIONS APPEARING ON THIS PURCHASE ORDER.

2. NO PRICE CHANGES FROM THOSE SHOWN ON THIS ORDER WILL BE ACCEPTED UNLESS AUTHORIZED IN WRITING BY THE BUYER PRIOR TO SHIPMENT OR THE PROVISION OF SERVICES.

3. BUYER'S ORDER NUMBER MUST APPEAR ON ALL PACKING SLIPS, INVOICES AND ALL OTHER CORRESPONDENCE OR DOCUMENTS PERTAINING TO THIS ORDER.

4. VENDOR SHALL ACKNOWLEDGE RECEIPT AND ACCEPTANCE OF THIS ORDER BY SIGNING AND RETURNING THE ACKNOWLEDGMENT COPY OF THIS ORDER IMMEDIATELY. Vendor's acceptance of all the items and conditions of this order shall be implied by Vendor's commencement of services or shipment of any ordered goods.

5. THE ARTICLES COMPRISING THE GOODS SHIPPED PURSUANT TO THIS ORDER, OR ANY PART OF ANY MERCHANDISE WHATSOEVER SHIPPED PURSUANT TO THIS ORDER BY THE VENDOR IS GUARANTEED, AS OF THE DATE OF SUCH SHIPMENT OR DELIVERY, TO BE ON SUCH DATE NOT ADULTERATED, MISBRANDED OR MISLABELED WITHIN THE MEANING OF THE FEDERAL FOOD, DRUG. AND COSMETIC ACT (TOGETHER WITH ANY AND ALL AMENDMENTS, ADDITIONS, RULES AND/OR REGULATIONS PERTAINING THERETO, INCLUDING, WITHOUT LIMITATION, THE PESTICIDE, CHEMICAL AND FOOD ADDITIVE AMENDMENTS. THE AFOREMENTIONED ACT TOGETHER WITH ANY AMENDMENTS ADDITIONS, RULES AND/OR REGULATIONS PERTAINING TO ANY OR ALL OF THE FOREGOING BEING COLLECTIVELY, JOINTLY OR SEVERALLY REFERRED TO BELOW AS THE "ACT"). VENDOR SPECIFICALLY UNDERTAKES, CERTIFIES, GUARANTEES AND WARRANTS TO BUYER WITH RESPECT TO ANY AND ALL SUCH ITEMS SHIPPED OR DELIVERED TO BUYER IN PERFORMANCE OF THIS ORDER THAT VENDOR IS IN COMPLIANCE WITH ALL APPLICABLE FEDERAL, STATE OR LOCAL LAWS AND REGULATIONS. FURTHER, VENDOR CERTIFIES, GUARANTEES AND WARRANTS TO BUYER THAT EACH SUCH ITEM SOLD TO BUYER, OR ANY PART, HAS BEEN PROCESSED OR PRODUCED IN ACCORDANCE WITH THE APPLICABLE PROVISIONS OF THE ACT AND THAT THE SAME ARE NOT ADULTERATED, MISBRANDED OR MISLABELED WITHIN THE MEANING OF THE ACT NOR DO SUCH ITEMS CONTAIN ANY COLOR ADDITIVE. CHEMICAL, PESTICIDE OR OTHER ELEMENT OR COMPOUND WHICH HAS NOT BEEN DULY APPROVED OR CERTIFIED BY ALL APPROPRIATE FEDERAL AUTHORITIES FOR INCLUSION WITHIN OR UPON SUCH ITEM.

6. Neither the services or the quantity or quality of the goods delivered by Vendor to Buyer shall differ from those specified in this order, nor will any other modifications of this order be effective unless such changed services or quantity or other modification is first ordered by Buyer by written change order. The Vendor shall not provide services or make any shipment of nonconforming goods, whether as an accommodation or otherwise, unless first authorized in writing by Buyer.

7. Vendor warrants that any transportation costs included in the price will not exceed actual transportation costs paid by the Vendor. If this order calls for payment of any transportation costs by Buyer, Buyer shall in no event be liable or accountable for any amount in excess of the actual costs of transportation. Vendor shall be accountable for and pay for any excess transportation costs arising from Vendor's failure to make delivery to the F.O.B. point or failure to follow shipping instructions furnished by Buyer.

8. Vendor warrants that the goods sold are free and clear of all liens and encumbrances, and that Vendor has a good and marketable title to them, and Vendor agrees to hold Buyer

free and harmless against any and all claims or demands pertaining to said merchandise.

9. Vendor warrants that the goods or services covered by this order will conform to applicable specifications, instructions, drawings, data and samples; will be merchantable, of

good material and workmanship and free from defects.

10. Vendor shall properly package all goods for safe shipment to the Buyer and a notice of shipment shall be sent by Vendor to Buyer at the time the goods are shipped which shall

state the number of this order, the kind of goods, the Vendor's name and the carrier and route, by which the shipment is being made.

11. Vendor hereby, acknowledges that Vendor has received written specifications from Buyer or that Buyer has otherwise given notice to Vendor or made Vendor aware of certain specifications required by Buyer in connection with the goods or services which are the subject of this order. Further, Vendor represents that it has fully investigated all specifications, including any furnished by Buyer in connection with the goods or services and, based upon such investigation and its past experience and superior knowledge with respect to such goods or services, has determined that the production or provision will not infringe any patent, trademark trade secret or copyright and Vendor shall defend, indemnify and hold Buyer and its successors-in-interest free and harmless from and against any and all claims, demands, costs and liabilities, including legal expenses as they are incurred, arising out of any such infringement or claim of infringement. In no event, shall Buyer or its successors-in-interest be liable to Vendor for any patent, copyright, trade secret or trademark infringement or claim. In the event Buyer or its successors-in-interest are enjoined from operation, use, sale and/or purchase of the goods or any services, or any part of them, Vendor shall (at its sole expense) take all reasonable steps possible to procure for Buyer or its successors-in-interestthe right to operate, use and purchase or sell said goods or any services, or any part of them. If Vendor cannot procure these rights within a reasonable time, Vendor shall then promptly, at Vendors sole expense:

a. Modify the goods or services, or any part of them, so as to avoid infringement or any patent or any other proprietary interest; or

b. Replace the goods or services or any part of them with goods or services which do not infringe or violate any such patent or other proprietary interest; or

c. Discontinue the services or remove the goods and refund Buyer any compensation paid to Vendor and pay to Buyer any transportation costs and expenses that may have been paid or incurred by Buyer in connection with the goods or any services, or any part of them, so removed or discontinued.

12. Time is of the essence. If Vendor defaults or breaches any of its obligations under this Agreement, or if Vendor becomes insolvent, or a trustee or receiver for Vendor's business or assets is appointed by any court or if Vendor shall make an assignment for the benefit of creditors, then, and in any such event, Buyer may cancel this order in whole or in part, by written or notice to Vendor, and Buyer shall have no liability or obligation whatsoever to Vendor by reason of or resulting from such cancellation, but at Buyer's sole election, it may pay Vendor its actual direct out-of-pocket costs of performance to the date of such cancellation, as approved by Buyer, in which event the goods or uncompleted portions of the goods shall become property of Buyer and Vendor shall safely hold the same for a reasonable period of time subject to receipt of Buyer's written shipping instructions or other disposition instruction.

13. In addition to and without prejudice to the right to cancel stated above, Buyer may terminate this order in accordance with the following provisions:

a. If this order covers goods or services manufactured, fabricated or otherwise provided to Buyer's specifications or especially prepared or provided by Vendor for Buyer then at any time prior to delivery of all goods or services covered by this order, Buyer may terminate this order in whole or part by written notice to Vendor and, in such event, the following provisions shall apply:

(1) Immediately upon receipt of such notice of termination or upon such other date as may be specified in said notice, Vendor shall cease all work in connection with this order except as otherwise directed by Buyer.

(2) Buyer shall pay and Vendor shall accept as full compensation Vendor's actual direct out-or-pocket costs to the date work is stopped, including Vendor's reasonable expense in connection with termination of any subcontracts, all as approved by Buyer; provided, however, that in no event shall the total amount to be paid to the Vendor upon such termination plus payments previously made by Buyer exceed the portion of the aggregate total purchase price of this order that the work actually performed to the date work is stopped bears to the entire work to be performed.

(3) The goods or uncompleted portions of the goods shall be property of Buyer and Vendor shall hold the same for reasonable time subject to receipt of Buyer's written shipping or other disposition instructions.

b. If the goods or services covered by this order are standard stock merchandise or standard services, Buyer may terminate all or any part of the unshipped or not yet provided portion of this order at any time by written notice to Vendor, and in such event, Buyer shall have no further obligation for cancellation charges or otherwise except to make payment, subject to other applicable terms, for the goods actually shipped and in transit or services actually provided prior to such termination and to make payment for any goods or services as to which this order is not terminated which are shipped or provided subsequent to such termination.

14. Vendor shall defend, indemnify and hold Buyer free and harmless from and against any and all claims, demands, damages, liabilities or obligations of any kind whatsoever, including, but not limited to damage or destruction of property and injury or death of persons, resulting from or connected with Vendor's performance or any default by Vendor or other breach of its obligations under this Agreement. 15. Vendor specifically undertakes, guarantees, and warrants to Buyer with respect to all services provided or merchandise shipped or delivered to Buyer in performance to this order and with respect to all federal, state, or local laws, executive orders, rules and regulations that:

a. Prices are not in violation of such laws or regulations; and

b. Such services or merchandise have been produced by Vendor in compliance with all applicable labor and wage hour laws or regulations; and

c. Any machinery or equipment or other goods or services supplied by Vendor to Buyer pursuant to this order will meet or exceed and be produced or provided in compliance with all safety and health standards which are adopted and initiated by the Department of Labor under the authority of the Occupational Safety and Health Act of 1970 together with any amendments that are in effect at the time of Vendor's shipment or provision to Buyer.

16. This order, together with any written documents which may be incorporated by specific reference, constitutes the entire agreement between the parties and supersedes all previous communications between them. No amendments or agreements by Buyer or any of its officers, agents, or employees shall be binding on the Buyer unless contained in this order or are agreed to in writing by Buyer subsequent to this Agreement and no local, general, or trade custom or previous course of dealing of performance shall, without Buyer's express written consent, alter or vary the terms of this Agreement.

17. The waiver of Buyer of any term, condition or provision of this purchase order shall not be construed to be a waiver of any other term, condition or provision nor shall such waiver be deemed a waiver of a subsequent breach of the same term, condition or provision, nor shall it be deemed a waiver of any provision in any subsequent order.

18. All plans, drawings, specifications and all other information given to Vendor by Buyer in connection with performance of this order involves valuable property rights of Buyer and shall be held confidential by Vendor, shall remain the property of the Buyer and shall not be used by Vendor for any purchases other that those for which they have been supplied or prepared. Vendor agrees that as far as possible, it will keep confidential the making of this order its terms. Vendor agrees not to use for publicity or other purposes any photographs, drawings or other materials submitted in connection with the performance of this order without obtaining the prior written consent of Buyer and upon completion of this order and at Buyer's request, Vendor shall return all materials provided by Buyer.

19. Notwithstanding any prior payment, all goods or services are subject to inspection and testing by Buyer after arrival at the ultimate destination, and if the goods or services are to be incorporated into any program or operating facility, Buyer's inspection and testing of the goods or services may be made under operating conditions after the goods or services have been installed or provided. If upon inspection or testing, such goods or services or any portion of them are found to be nonconforming, unsatisfactory, defective, of inferior quality or workmanship, or fail to meet any guarantees of operating or other specifications contained in this purchase order or other requirements of Buyer, then without prejudice to any other rights or remedies, Buyer may return the goods or services or any part of them to Vendor and all amounts previously paid by Buyer to Vendor on account of the purchase price of such returned goods or services, together with any costs incurred by Buyer in connection with the original delivery or return of such goods or services shall be repaid to Buyer by Vendor. Neither the inspection nor failure to make such inspection nor acceptance of goods or services shall release Vendor from any of the warranties or other provisions of this order nor impair Buyer's right to reject nonconforming goods or services. Buyer reserves the right, even after it has paid for and accepted said goods or services, to make a claim against Vendor on account of any goods or services which do not prove to be satisfactory or are defective, irrespective of Buyer's failure to notify Vendor of a rejection of nonconforming goods or services or revocation of acceptance of them or to specify with particularly any defect in nonconforming goods or services after rejection or acceptance.

20. Buyer hereby reserves all its other legal or equitable rights and remedies.

21. BUYER AND VENDOR EACH REPRESENT THAT THEY ARE AN AFFIRMATIVE ACTION EMPLOYER WITH REGARDS TO EQUAL OPPORTUNITY FOR ALL PERSONS WITHOUT REGARD TO RACE, RELIGION, COLOR, CREED, NATIONAL ORIGIN, SEX, AGE, HANDICAP OR VETERAN (INCLUDING VIETNAM VETERAN) STATUS.

22. None of the terms and conditions of this Agreement may be modified unless it has been approved prior to shipment in writing and executed by Vendor and Buyer. With respect to any future shipments from Vendor to Buyer, no prior modification of these terms and conditions shall be binding.

23. In the event of dispute between the Vendor and the Buyer, the prevailing party will be entitled to reasonable attorneys’ and experts’ fees and any other legal costs.

Canada

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