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Purchase Order Terms & Conditions

1.  Agreement:  This order, of which these Purchase Order Terms are an integral part, is Buyer’s offer to Seller and becomes a binding contract, subject to the terms hereof, when accepted by acknowledgement or upon commencement of performance by Seller (“Purchase Order”). To the extent there are any inconsistencies between these terms and those written on the face of this Purchase Order, the latter will control.  ACCEPTANCE OF THIS PURCHASE ORDER IS EXPRESSLY LIMITED TO ACCEPTANCE OF THE TERMS AND CONDITIONS HEREOF (OR STATED ON THE FACE HEREOF AND IN ANY ATTACHMENT).  ANY ADDITIONAL OR DIFFERENT TERMS, ADDITIONS, OR EXCEPTIONS PROPOSED BY THE SELLER (WHETHER IN A PRINTED FORM, PROJECT PROPOSAL, COUNTERPROPOSAL, QUOTE, ACKNOWLEDGEMENT, INVOICE, PACKING SLIP OR ELSEWHERE) ARE OBJECTED TO AND HEREBY REJECTED, UNLESS SUCH TERMS, ADDITIONS, OR EXCEPTIONS ARE APPROVED SPECIFICALLY BY BUYER IN WRITING.  UNLESS THIS PURCHASE ORDER IS ACCEPTED OR PERFORMANCE BEGINS WITHIN 60 DAYS AFTER THE DATE STATED ON THE FACE HEREOF, THIS PURCHASE ORDER SHALL TERMINATE.  NOTWITHSTANDING THE FOREGOING, BUYER RESERVES THE RIGHT TO REVOKE THIS PURCHASE ORDER AT ANY TIME BEFORE ACCEPTANCE.  IN THE EVENT THAT THIS PURCHASE ORDER OPERATES AS AN ACCEPTANCE, ACCEPTANCE IS EXPRESSLY LIMITED TO ACCEPTANCE OF THE ORDER AND THESE PURCHASE ORDER TERMS.  No course of prior dealings or usage of trade shall be relevant to supplement or explain any term used herein.  

2. Price and Payment: Unless otherwise specified, the prices for the goods and services stated in this Purchase Order include all charges for packing, hauling, storage, transportation to point of delivery, customs, duties and taxes, as applicable.  Sales and use taxes not subject to exemption shall be stated separately in Seller’s invoice. Seller represents and warrants that prices quoted in this Purchase Order are no greater than those currently charged any other buyer for similar quantities of goods or services. Any price reduction extended to others by Seller shall also be extended to Buyer.  Separate invoices are required for each Purchase Order. Terms of payment are as set forth on the face hereof, and if Seller’s invoice is inconsistent with such terms, Seller acknowledges that Buyer shall make payment according to the terms of this Purchase Order. If no terms of payment are stated on the face hereof, Buyer shall pay Seller’s invoices 2% fifteen (15) days, net sixty (60) days after Buyer received Seller’s invoice (in no event may goods or services be invoiced until shipped, in the case of goods, or services completed, in the case of services).  Seller’s invoice and/or quotation is incorporated in and made a part of this order only to the extent of specifying the nature and description of the goods and services ordered, and then only to the extent such items are consistent with the other terms of this Purchase Order. The discount period on any invoice will be calculated from the date the invoice is received by Buyer.

3. Delivery:  Time is of the essence with respect to Seller’s obligations hereunder.  Quantities delivered shall not vary from the quantities specified in this Purchase Order. If tender of conforming goods or services, as the case may be, is not made by the delivery date specified or services are not completed by the completion date specified, Buyer may treat such failure as a breach hereof. Seller shall strictly comply with the delivery instructions contained on the front of this Purchase Order, or, if no instructions are stated, goods shall be delivered DDP (Incoterms 2020) place of destination as designated by Buyer.  Title and risk of loss of the goods shall pass to Buyer upon completion of delivery of each shipment and acceptance of such shipment by Buyer. 

4.  Changes:  Buyer may at any time make changes in the scope or quantity of the goods or services covered by this Purchase Order or in other terms hereof, in which event an equitable adjustment will be made to any price, time of performance, and other provision of this Purchase Order if appropriate.  Claim for such an adjustment must be made within fifteen (15) days from the date of receipt by Seller or notice of the change.  

5.  Warranty:   (a)  Seller expressly warrants that the goods or services under this Purchase Order shall (i) be merchantable; (ii) conform strictly to this Purchase Order, to specifications, drawings, and other descriptions referenced in this Purchase Order; (iii) conform to any accepted samples; (iv) be free from defects in materials and workmanship; (v) be free from defects in design unless the design was supplied by Buyer; (vi) be fit and safe for the intended purposes; (vii) be manufactured, contained, packaged, labeled, transported or otherwise provided in accordance with all applicable federal, state, provincial, local, municipal and other laws, regulations, permits and industry standards; and (viii) with respect to services, be performed in a good and workmanlike manner by personnel with appropriate experience and expertise.  Seller also warrants that it shall obtain and assign or otherwise provide to Buyer the benefits of warranties provided by manufacturers or suppliers of material or equipment incorporated into the goods or services, and shall perform its responsibilities so that such warranties remain in full effect.  Seller warrants that it has clear title to the goods and that the goods and services shall be delivered free of liens and encumbrances and the transfer thereof properly authorized and lawful; (b) Seller warrants that the goods: (i) are not adulterated or misbranded within the meaning of either the Food and Drugs Act (Canada), as amended or the Federal Food, Drug and Cosmetic Act, as amended, (as applicable referenced herein as the “Act”), or within the meaning of any other applicable law in which the definitions of “adulteration” and “misbranding” are substantially identical with those contained in Act; and (ii) are not goods which may not under the provisions of the Act be introduced into commerce; (c) Seller warrants that the goods and the use thereof shall not infringe any patent, trademark or copyright; and (d) All these warranties and other warranties as may be prescribed by law: (i) shall survive any delivery, approval, inspection, acceptance or payment by Buyer and no such delivery, approval, inspection, acceptance or payment shall be deemed to waive any of Buyer’s rights hereunder, and (ii) shall extend to Buyer, its affiliates, successors, assigns, customers, and users of the goods or services, and shall run through any expiration date stated on the goods, or if no expiration date is stated, then for a period of two (2) years after delivery.  Without limiting Buyer’s other remedies, any goods that do not meet any of the foregoing warranties shall, at Buyer’s request and option, be repaired or replaced at Seller’s expense as soon as practicable following Buyer’s request (and in any event no longer than thirty (30) days).   

6.  Changes by Seller: Seller shall not make any changes to the materials used (or vendors of such materials) to manufacture the goods to be delivered under this Purchase Order or the processes used to manufacture the goods without the prior written consent of Buyer.  Substitutions or changes in quantities or specifications by Seller shall not be made without Buyer’s prior written approval. Seller shall notify Buyer of any nonconformance with (i) any of the specifications for the goods to be delivered under this Purchase Order, (ii) applicable law, (iii) these Purchase Order Terms, or (iv) any other standards of manufacturing applicable to the manufacturing process or to the Seller, associated with the manufacturing process of goods to be delivered hereunder.  Seller also agrees to produce such documentation as reasonably requested by Buyer to enable Buyer to comply with documentation requirements and requests of any regulatory authority.

7.  Non-Conforming Goods; Inspection; Testing:  Buyer may, without liability, cancel this Purchase Order or reject goods or services in the event of late delivery or the delivery of non-conforming goods or services.  Buyer shall not be liable for any failure to accept goods or services in the event of interruption arising or resulting from transportation, government regulation, labor disputes, strikes, riots, insurrection, war, civil commotion, fire, flood, accident, storm, or any act of God, pandemic, epidemic or serious disease outbreak, or other cause beyond Buyer’s control makes it impracticable for Buyer to accept such goods or services.  Goods purchased under this Purchase Order are subject to Buyer’s reasonable inspection, testing, and approval at Buyer’s destination.  Buyer reserves the right to reject and refuse acceptance of goods which are not in accordance with this Purchase Order or Seller’s representations or warranties, express or implied. Rejected goods may be returned to Seller, at Seller’s cost, or held by Buyer, at Seller’s risk and expense.  Payment for any goods under this Purchase Order shall not be deemed acceptance of the goods.

8.  Recall:  In the event that a recall of the goods is necessitated by a defect, a failure to conform to the specifications, applicable laws, or any other reason not primarily within Buyer’s control, Seller shall bear all costs and expenses of such recall, including without limitation, costs of notifying customers, customer refunds, costs of returning goods, lost profits, and other expenses incurred to meet obligations to third parties.

9.  Compliance With Laws; Audit Right:  In filling this order, Seller will comply with the Act, and all other applicable federal, provincial, state, and local laws, including without limitation (i) Executive Order 11246, as amended, which provides in part that Seller will take affirmative action with regard to recruiting and retaining minorities in all levels of its workplace, including all requirements set forth in Section 202 of the Executive Order which are incorporated by reference, (ii) laws prohibiting discrimination on any basis, (iii) the affirmative action and nondiscrimination requirements of applicable federal law protecting the interests of handicapped workers and disable and Vietnam-era veterans and (iv) laws prohibiting slavery and human trafficking.  Seller also represents that the goods are consistent with, and can be used in compliance with all applicable health and safety laws, including without limitation the Occupational Safety and Health Act of 1970 (OSHA), that services to be performed on Buyer’s premises will be consistent with OSHA provisions and all other applicable health and safety laws, and that Seller will provide Buyer the latest material safety data sheet (MSDS) for any chemical substance determined to be hazardous. If this Purchase Order is for goods, Seller shall permit Buyer to perform quality audits at its manufacturing facilities for the goods delivered under this Purchase Order, and its other facilities, during normal business hours upon reasonable advance notice of the date of such intended audit in order to insure compliance with these Purchase Order Terms and applicable law.  Seller will use reasonable efforts to accommodate Buyer’s requests to perform such audits on the date Buyer so requests.  Seller agrees to conducting and documenting corrective and preventive actions based upon the analysis of quality data and upon Buyer’s audits as soon as possible. 

10.  Indemnification:  Seller shall defend, indemnify and hold Buyer, its affiliates and their respective successors, assigns, and each of their respective employees, officers, directors, agents, contractors, customers, and users of the goods and services harmless with respect to all third party claims, liabilities, damages, losses, costs and expenses (including reasonable attorney’s fees and including without limitation, injury or death to persons or damage to property), arising out of or relating to: (i) any breach by Seller of any covenant, representation or warranty set forth or referenced in this Purchase Order (including without limitation, any breach of any warranty set forth herein or the failure of any good to comply with the applicable specifications); (ii) the shipping or transporting of the goods purchased hereunder prior to passage of title to Buyer; (iii) actual or alleged patent, copyright, or trademark, infringement of violation of other proprietary right, arising out of the purchase, sale, or use of the goods or services covered by this Purchase Order; (iv) actual or alleged defect in the services or in the design, manufacture, or material of the goods; (v) the failure of Seller to deliver the goods or services on a timely basis; (vi) the failure of the goods or services to meet the requirements of federal, provincial, state, local or municipal law or any other applicable law; (vii) any act or omission, direct or indirect, of Seller, its agents, representatives, employees or subcontractors in the performance of its obligations hereunder; (viii) Seller’s negligence or willful misconduct; or (ix) recalls described in Paragraph 8 of these Purchase Order Terms or (x) any environmental or pollution damage arising out of or in connection with Seller’s performance of this Purchase Order, unless such damage results solely from the negligence of Buyer.  In the event of a claim or proceeding under this paragraph, Buyer may at its option terminate this Purchase Order or defer acceptance of the balance of the goods or services ordered until the claim or proceeding is resolved.  If Buyer is enjoined from use of the goods, Seller shall, at Buyer’s option, either procure for Buyer the right to continue using the goods, replace the goods with substantially equivalent goods, modify the goods so as to be usable by Buyer, or repurchase the goods at the price set forth in this Purchase Order.  This Paragraph 10 shall not be construed to indemnify Buyer for any loss to the extent it is attributable to Buyer’s design, specification or negligence.

11.  Limitation of Liability: IN NO EVENT SHALL BUYER BE LIABLE TO SELLER FOR ANY AMOUNT GREATER THAN THE PRICE PAID FOR THE PORTION OF THE GOODS OR SERVICES AS TO WHICH LIABILITY ARISES.  IN THE EVENT SELLER IS FOR ANY REASON ENTITLED TO RECOVER DAMAGES PURSUANT TO THIS PURCHASE ORDER SUCH DAMAGES SHALL NOT INCLUDE ANY LOSS OF PROFITS OR LOSS OF OPPORTUNITY OR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL,  PUNITIVE OR INDIRECT DAMAGES. 

12.  Insurance:  Seller shall obtain, maintain, and keep in force for three (3) years after the last delivery of goods or services under this Purchase Order, insurance coverage that is reasonable for companies of similar size in Seller’s industry, including reasonable coverages and amounts customary in such industry.  If requested, Seller shall promptly furnish Buyer with a certificate evidencing Seller’s insurance.

13. Buyer Furnished Material: Unless otherwise expressly specified in this Purchase Order, Seller shall be responsible for furnishing, at its expense, all materials, tools, machinery, equipment and similar materials related to the manufacture of the goods or provision of the services.  Seller shall not use, reproduce, or appropriate for or disclose to anyone other than Buyer, any specifications, material, tooling, dies, drawings, designs or other property or information furnished by Buyer (“Material”) without Buyer’s prior written approval.  Title to all Materials shall remain in Buyer at all times, and where practicable the Material shall be clearly marked or tagged to indicate this ownership.  Seller shall bear the risk of loss or damage to the Material until it is returned to Buyer.  All Material, whether or not spoiled or used, shall be returned to Buyer at termination or completion of this Purchase Order, or earlier at Buyer’s request, unless Buyer shall otherwise direct.

14.  Ownership of Intellectual Property:  Buyer shall own all rights, title and interest in and to all works-of-authorship (including without limitation specifications, data, reports, tables, analyses, software, and correspondence from Seller to Buyer), inventions or discoveries created, invented or discovered by Seller in the course of services for Buyer pursuant to this Purchase Order, and Seller hereby makes any assignments to accomplish the foregoing.  Seller agrees to promptly disclose to Buyer in writing any such inventions.  All such inventions and any information with respect thereto shall be confidential information within the meaning of and shall be subject to the confidentiality provisions provided in these Purchase Order Terms.  Seller shall keep accurate and complete records of all inventions, which shall be Buyer’s property and shall be available to Buyer at all times.  Seller shall execute without charge any foreign or domestic patent applications or assignments or similar documents related to patent prosecution or otherwise necessary or desirable to evidence Seller's assignment of all inventions, and to provide reasonable cooperation and assistance to Buyer (at Buyer's expense) in connection with such patent prosecution; and should Buyer decide to keep any inventions secret, Seller shall agree to refrain from applying for patent protection thereon.

Neither anything contained in these Purchase Order Terms or any work assignment nor the disclosure or provision to Seller of any confidential information or other information or items shall be deemed to transfer or grant to Seller, or any other person or entity, any right, title, interest, or license in, to or under any patent or patent application of Buyer or other intellectual property or other right of Buyer in or to any information, discoveries, knowledge, experience, processes, procedures, compositions of matter, skills, know-how, samples, trade secrets, designs, formulae, specifications, methods, techniques, compilations, programs, devices, technical information, concepts, developments, inventions or improvements, whether patentable or not, or other technology, inventions or property of Buyer.

15.  References to Buyer; Confidentiality:  Except to the extent required by law, Seller shall make no reference, advertisement, or promotion regarding Buyer or Buyer’s purchase or use of the goods or services covered by this Purchase Order without the prior written consent of Buyer.  Seller agrees not to reveal to any person any information pertaining to Buyer’s business.  Correspondence, source material, statistical and other data, whether provided in oral or written form, and all preliminary as well as completed work, are considered strictly confidential by Buyer and shall be treated accordingly by Seller and Seller shall not disclose any such information to any third person.  Upon request of Buyer and in accordance with Buyer’s instructions, Seller shall return or destroy all copies of any confidential information of Buyer that Seller possesses. 

16.  Use of Seller’s Information:  Unless otherwise marked or specified to be confidential, all information disclosed by Seller to Buyer in connection with this Purchase Order is furnished as part of the consideration for Buyer’s placement of this order.  This information is not to be treated as confidential or proprietary, and no claim will be asserted against Buyer, its assigns, or customers, for its disclosure or use.

17.  Termination:  (a) Buyer may terminate this Purchase Order, in whole or in part, without liability; if (i) Buyer anticipates Seller’s breach of this Purchase Order and Seller does not provide adequate assurance of its performance within ten (10) days of Buyer’s request; (ii) if deliveries are not made at the time or in the quantities specified; or (iii) in the event of a breach or failure by Seller to meet other terms of this Purchase Order.  This right shall be in addition to any other remedies provided Buyer by law or in equity; (b) Buyer may terminate this Purchase Order, in whole or in part, anytime for its convenience by notice to Seller in writing.  Seller’s sole compensation for such termination shall be payment by Buyer of the percentage of the total Purchase Order price corresponding to the proportion of work completed in filling the Purchase Order prior to such notice, plus any reasonable documented expenses incurred by Seller for non-cancellable obligations in terminating Purchase Orders and for work in progress.  Such expense claim must be submitted to Buyer within sixty (60) days of the date of termination and shall be subject to audit by Buyer; (c) Upon termination under this paragraph, title to all equipment, materials, work-in-progress, finished goods, plans, drawings, specifications, information, special tooling, and any other items for which Seller may submit a claim shall vest in Buyer, and Seller shall promptly deliver these items to Buyer and take all necessary action to protect such property prior to such delivery.  Remedies for breach and any obligations which by their nature should survive the termination of this Purchase Order shall survive the termination of this Purchase Order, including without limitation provisions relating to confidentiality, indemnification and ownership of intellectual property. 

18.  Setoff:  Any counterclaim against Seller or any of its related entities by Buyer or any of its related entities which arises out of this or any other transaction may be set off against any money due Seller under this Purchase Order.  

19.  Modifications; Waiver: Only modifications agreed in writing by both parties shall be binding upon Buyer.  Buyer may waive performance or compliance with any terms and conditions hereof, but any such waiver shall be effective only if given in writing and shall be effective only with respect to the specific circumstances for which it is given. Buyer’s failure to assert a right hereunder or to insist upon compliance with any term or condition of these Purchase Order Terms shall not constitute a waiver of that right or excuse a similar subsequent failure to perform any such term or condition.

20.  Assignment; Subcontracting:  Seller shall not assign this Purchase Order or subcontract any portion of the performance of it without Buyer’s prior written consent.  Seller shall at all times be liable for the compliance with these Purchase Order Terms by any subcontractor or assignee.

21.  Severability:  If any provision of these Purchase Order Terms becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, these Purchase Order Terms shall continue in full force and effect without such provision.

22.  Entire Agreement; Headings: These Purchase Order Terms, and the documents referred to in it, constitute the entire agreement and understanding of the parties and supersede any previous agreement, correspondence or discussions between the parties relating to the subject matter of this Purchase Order. The captions to the paragraphs hereof are not a part of these Purchase Order Terms, but are included merely for convenience of reference only and shall not affect its meaning or interpretation.

23.  Governing Law:  This Purchase Order and the performance under it shall be governed and interpreted in accordance with the laws of the Province of Ontario, Canada, without regard to conflicts of law provisions, and Seller hereby submits to the jurisdiction of the courts in Toronto, Ontario for purposes of resolving any dispute.  The UN Convention on the International Sale of Good is excluded and shall not apply to this Purchase Order.

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