ACCEPTANCE -- AGREEMENT. Seller's commencement of work or shipment of the goods subject to this order, whichever occurs first, shall be deemed an effective mode of acceptance of this order. Any acceptance of this order is limited to acceptance of the express terms contained on the face hereof, this Exhibit A and any additional exhibits or schedules furnished by Buyer which shall collectively be referred to as the “Agreement”. Any proposal for additional or different terms or any attempt by Seller to vary in any degree any of the terms of this offer in Seller's acceptance is hereby objected to and rejected, but such proposals shall not operate as a rejection of this offer unless such variances are in the terms of the description, quantity, price or delivery schedule of the goods or services, but shall be deemed a material alteration thereof, and this offer shall be deemed accepted by Seller without said additional or different terms. If this order shall be deemed an acceptance of a prior offer by Seller, such acceptance is limited to the express terms contained on the face hereof and this Exhibit A. Additional or different terms or any attempt by Seller to vary in any degree any of the terms of this order shall be deemed material and are objected to and rejected but this order shall not operate as a rejection of the Seller's offer unless it contains variances in the terms of the description, quantity, price or delivery schedule of the goods or services.
TERMINATION FOR CONVENIENCE. Buyer reserves the right to terminate this Agreement or any part hereof for its sole convenience. In such event, Seller shall, and shall cause any of its suppliers or subcontractors to immediately cease work pursuant to this Agreement. Seller shall be paid a reasonable termination charge of a percentage of the order price reflecting the percentage of the work performed prior to the notice of termination, plus actual documented direct costs resulting from termination. Seller shall not be paid for any work done after receipt of notice of termination, nor for costs incurred by Seller's suppliers or subcontractors, which could reasonably have been avoided.
TERMINATION FOR CAUSE. Buyer may terminate all or any part of this Agreement for cause and without penalty if Seller fails to comply with any of the terms and conditions of this order, or if Seller ceases to conduct its operations in the normal course of business (including as a result of its inability to meet its obligations as they mature), or if any proceedings under the bankruptcy or insolvency law is brought by or against Seller, or a receiver for Seller is appointed or applied for or an assignment for the benefit of creditors is made by Seller.
PROPRIETARY INFORMATION -- CONFIDENTIALITY -- ADVERTISING. Seller shall treat all information furnished by Buyer as confidential and shall not disclose any such information to any other person or entity, or use such information itself for any purpose other than performing this Agreement. This paragraph shall apply to drawings, specifications, or other documents prepared by Seller for Buyer in connection with this order as well as information that may be provided orally by Buyer or observed by Seller at Buyer's facility. Seller shall not advertise or publish the fact that Buyer has contracted to purchase goods or services from Seller, nor shall any information relating to the order be disclosed without Buyer's written consent.
WARRANTY. Seller warrants that the products furnished under this Agreement (the “Products”) will (a) conform to Buyer's manufacturing standards, specifications, drawings, samples or descriptions furnished by Buyer, including but not limited to all specifications attached as exhibits hereto, (b) will be merchantable, of good quality and workmanship, free from defects for a period of twelve months or longer if specified in writing, and fit and sufficient for the intended use (c) will comply with all federal and provincial laws, regulations and ordinances pertaining to the manufacturing, packaging, labeling, sale and delivery of the Products (d) will be of good title to and be free and clear of all liens and encumbrances (e) will not infringe any patent, copyright or other intellectual property rights of any third party, and (f) have been produced, packaged, marked, labeled and will comply with all applicable governmental and regulatory requirements including, without limitation, the Food and Drugs Act, Food and Drug Regulations, all applicable public or occupational health and safety laws, including the Workplace Hazardous Materials Information System (WHMIS) and the Occupational Health and Safety Act (Ontario) and all applicable laws in respect of the natural environment, and the manufacture, importation, handling, transportation, storage, disposal and treatment of hazardous substances. Seller agrees to reimburse Buyer for any losses, costs, damages or expenses, including attorney's fees, arising from failure of the Products to meet such warranties. These warranties shall be in addition to all other warranties, express, implied or statutory, shall survive Buyer's payment, acceptance, inspection or failure to inspect the Products, and shall run to Buyer and its customers.
PRICE WARRANTY. Seller warrants that the net prices for Products sold to Buyer hereunder are not and will not be less favorable than the net prices Seller extends to any other customer for Products or products that are substantially the same in similar quantities and on similar terms. (In determining net prices extended to other customers, discounts, rebates, allowances, premiums, favorable payment terms and other benefits to the customers shall be taken into account.) If Seller reduces its prices to others for such goods during the term of this Agreement, Seller will reduce the prices hereunder correspondingly as of the date of such reduction. Buyer's remedies for Seller's failure to reduce Buyer's prices when required by the foregoing shall include, without limitation, the rights to return the Products to Seller at Seller's expense, to purchase the Products or products that are substantially the same from another supplier thereof and reduce any quantities specified in this Agreement or any other agreement between the Buyer and the Seller, and to reduce payment to or obtain a credit from Seller to the extent its prices to Buyer are not as favorable than the net prices extended by Seller to any other customer. Buyer's representatives shall have the right to audit the relevant records of Seller at times and with advance notice that are reasonable to determine whether the requirements have been satisfied.
DISCOUNTS. Any discount terms provided herein shall date from the later of the date of delivery of the goods at destination or the date of receipt of a complete invoice by Buyer.
INDEMNIFICATION. Seller agrees to protect, defend, indemnify and hold harmless Buyer and its subsidiaries and affiliates, and their employees, agents, shareholders and directors, from and against all claims, actions, demands, liabilities, losses, cost and expense, including, without limitation, reasonable attorney's fees and expenses, arising out of: (a) any breach or violation by Seller of any of its representations, warranties, covenants or agreements set forth herein; or (b) any actual or alleged death or injury to any person, damage to any property or any other damage or loss by whomsoever suffered, claimed to result in whole or in part from the goods or any actual or alleged defect in the goods, whether latent or patent; (c) any act, activity or omission of Seller or any of its employees, representatives or agents including, but without limitation, activities on Buyer's premises and/or the use of any vehicle, equipment, fixture or material of Seller or Buyer; or (d) any claim resulting from any actual or alleged trademark, trade dress, patent or copyright infringement or trade secret misappropriation related to the goods sold hereunder. Buyer shall have the right to direct the conduct of any such defense. In addition, Buyer shall have the right to be represented by counsel of its own choosing in any action, at its own expense.
CHANGES. Buyer shall have the right at any time to make changes in drawings, designs, specifications, materials, packaging, time and place of delivery and method of transportation. If any such changes cause an increase or decrease in the cost, or the time required for their performance, and equitable adjustment shall be made and this Agreement shall be modified in writing accordingly. Seller agrees to accept any such changes subject to this paragraph.
INSPECTION/TESTING. Payment for the goods and/or services delivered hereunder shall not constitute acceptance thereof. Buyer shall have the right to inspect such goods and/or services and to reject any which are in Buyer's judgment defective or nonconforming. Goods rejected and goods supplied in excess of quantities called for herein may be returned to Seller at its expense and, in addition to Buyer's other rights, Buyer may charge Seller all expenses of unpacking, examining, repacking and reshipping such goods. In the event Buyer receives goods whose defects or nonconformity are not apparent on examination, Buyer reserves the right to require replacement, as well as payment of damages. Nothing contained in this Agreement shall relieve the Seller from the obligation of testing, inspection and quality control.
INSURANCE. Seller shall carry and maintain, at its expense, the following insurance with companies satisfactory to Buyer: Comprehensive General Liability including products/completed operations, blanket contractual liability and a waiver of subrogation endorsements. Limits shall not be less than (a) bodily injury $1,000,000 each person and $3,000,000 each occurrence and (b) property damage $1,000,000 each occurrence, Auto Liability with limits not less than $1,000,000 each occurrence, Workers Compensation, if applicable, and Employer's Liability with limits not less than $1,000,000, but not less than statutory limits. All policies must be from good acceptable companies and Seller shall furnish Buyer with certificates, policy numbers and expiration of insurance maintained by Seller as evidence that such insurance is in force and Buyer, its parent and affiliated and subsidiary companies shall be named as an additional insured. Additionally, a waiver of subrogation in favor of the Buyer will be provided and noted on the certificate of insurance. Seller shall furnish certificates of all insurance required prior to the commencement of any work. The certificate shall require thirty (30) days’ notice to Buyer of cancellation of such insurance.
ASSIGNMENTS AND SUBCONTRACTING. No part of this Agreement may be assigned or subcontracted without prior written approval of Buyer.
WAIVER. The failure of either party to insist in any one or more instances upon strict performance of any of the provisions of this Agreement or to take advantage of any of its rights, shall not operate as a continuing waiver of such provisions or rights and shall not prevent such party from insisting upon such provisions and taking advantage of such rights in the future.
DELIVERY. Time is of the essence of this Agreement, and if delivery of goods or performance of services is not completed by the time promised, Buyer reserves the right without liability in addition to its other rights and remedies to terminate this Agreement by notice effective when received by Seller as to goods not yet shipped or services not yet performed and to purchase substitute goods or services elsewhere and charge Seller with any loss incurred. If in order to comply with Buyer's required delivery date it becomes necessary for Seller to ship by a more expensive way than specified in this order, any increased transportation costs resulting there from shall be paid for by Seller unless the necessity for such rerouting or expedited handling has been caused by Buyer. Title, possession and risk of loss of all Products sold hereunder shall pass to Buyer upon delivery of Products. If delivery is made F.O.B. destination, Seller is responsible for any taxes, duty, licensing, freight and other miscellaneous transportation expenses.
LIMITATION ON PURCHASER'S LIABILITY. In no event shall Buyer be liable for loss of anticipated profits or for incidental or consequential damages or penalties of any description. Buyer's liability on any claim of any kind for any loss or damage arising out of or in connection with or resulting from this Agreement or from the performance or breach thereof shall in no case exceed the price allocable to the goods or services or unit thereof, which gives rise to the claim.
GOVERNING LAW; VENUE. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable in such Province and this Agreement shall be treated, in all respects, as an Ontario contract. Each party agrees (i) that any action or proceeding relating to this Agreement may (but need not) be brought in any court of competent jurisdiction in the Province of Ontario, and for that purpose now irrevocably and unconditionally attorns and submits to the jurisdiction of such Ontario court; (ii) that it irrevocably waives any right to, and will not, oppose any such Ontario action or proceeding on any jurisdictional basis, including forum non conveniens; and (iii) not to oppose the enforcement against it in any other jurisdiction of any order duly obtained from an Ontario court as contemplated by this section.
LANGUAGE. The parties hereto have expressly requested that this Agreement and all documents related thereto be drafted in the English language. Les parties aux présentes ont expressément requis que la présente convention et tous les documents y afférents soient rédigés en langue anglaise.