Terms & Conditions for Purchase

1. ACCEPTANCE

Seller acknowledges and agrees that these General Terms and Conditions are incorporated in, and a part of, this contract and each purchase order, release, requisition, work order, shipping instruction, specification and other document, whether expressed in written form, by electronic data interchange or other tangible format, relating to the goods and/or services to be provided by Seller pursuant to this contract (such documents are collectively referred to as this “Contract”).  Seller acknowledges and agrees that it has read and understands these General Terms and Conditions.  If Seller accepts this Contract in writing or commences any of the work or services which are the subject of this Contract, Seller will be deemed to have accepted this Contract and these General Terms and Conditions in their entirety without modification.  Any additions to, changes in, modifications of, or revisions of this Contract (including these General Terms and Conditions) which Seller proposes will be deemed to be rejected by Buyer except to the extent that an authorized employee of Buyer expressly agrees to accept any such proposals in writing.

2. CHANGES

Buyer may at any time make changes in drawings, designs, specifications, materials, packaging, time and place of delivery, method of transportation or other terms of this Order, which changes Buyer shall document in writing and which Seller shall immediately implement. If any such changes cause an increase or decrease in the cost or the time required for performance, an equitable adjustment shall be reflected in Buyer’s written change notice, without which Seller has no authority to proceed. Seller agrees to accept any and all changes subject to this paragraph.  In order to assist in the determination of any equitable adjustment in price or delivery schedules, Seller will, as requested, provide information to Buyer, including documentation of changes in Seller’s cost of production and the time to implement such changes.  In the event of any disagreement arising out of such changes, Buyer and Seller will work to resolve the disagreement in good faith, provided, however, that Seller will continue performing under this Contract, including the manufacture and delivery of goods and prompt implementation of changes required by Buyer, while Buyer and Seller resolve any disagreement arising out of such changes.

Seller agrees to communicate any changes to the products or services detailed in the Contract so that the Buyer may determine whether the changes may affect the quality of a finished device.

3. PRICE

The price for each Good and/or Service shall be the price as shown for such Good and/or Service indicated on the Purchase Order. Any change in price without Baylis Medical Technologies Inc.’s prior written consent is expressly rejected. No additional charges of any kind, including charges for boxing, packing, cartage or other extras will be allowed except with Baylis Medical Technologies Inc.’s prior written consent.

4. SHIPPING AND BILLING
   
   • 4.1 Shipping – Seller will (a) properly pack, mark and, ship goods as instructed by Buyer or any carriers and in accordance with any applicable laws or regulations, (b) route shipments as Buyer instructs on the purchase order, (c) not charge extra for costs relating to handling, packaging, or storage unless otherwise expressly stated in this Contract, (d) provide packing slips with each shipment that identify Buyer’s Purchase Order, date of the shipment, Buyer’s part number, lot number and quantity shipped, and (e) promptly forward the original bill of lading or other shipping receipt with respect to each shipment as Buyer instructs.  Seller will include on bills of lading or other shipping receipts the correct tariff classification identification of the goods shipped as Buyer or the carrier requires.  The marks on each package and identification of the goods on packing slips, bills of lading and invoices must enable Buyer to easily identify the goods.  Shipments exceeding 150lbs or 50cu.ft.require approval from Buyer who may provide alternate shipping directives. Buyer has coverage for ”in transit” merchandise and will not be responsible for charges related to additional  Freight Insurance.
   • 4.2 Billing – Unless otherwise agreed, payment shall be due net 60 days from the date of delivery plus five (5) days, or from the date of receipt of correct invoice, whichever date is later. Buyer may withhold payment for any goods or services until Buyer receives evidence, in such form and detail as Buyer requires, of the absence of any liens, encumbrances and claims on such goods or services.
   • 4.3 Taxes – Unless otherwise agreed in writing, Seller warrants that the price of the goods and services excludes all federal, provincial and municipal sales and use taxes, ad valorem taxes, tariffs, duties, commissions or other charges, whether domestic or foreign, imposed on the goods or services, or any part of the transaction in this contract. Seller shall timely pay all taxes (including GST and HST) to the appropriate authorities and properly file all tax returns. Seller agrees to hold harmless, indemnify and reimburse Buyer for any such taxes (including penalties and interest) that Buyer may be required to pay.
   • 4.4 Deliveries – will be made in the quantities, on the dates, and at the times specified by Buyer in this Contract or any subsequent releases or instructions Buyer issues under this Contract. Time is of the essence with respect to all delivery schedules Buyer establishes.  Buyer will not be required to pay for any goods that exceed the quantities specified in Buyer’s delivery schedules or to accept goods that are delivered in advance of the delivery date specified in Buyer’s delivery schedules.  Seller bears the risk of loss of all goods delivered in advance of the delivery date specified in Buyer’s delivery schedules.  If the requirements of Buyer’s customers or market, economic or other conditions require changes in delivery schedules, Buyer may change the rate of scheduled shipments or direct temporary suspension of scheduled shipments without entitling Seller to a price adjustment or other compensation.
   • 4.5 Premium Shipments. If Seller fails to have goods ready for shipment in time to meet Buyer’s delivery schedules using the method of transportation originally specified by Buyer and, as a result, Buyer requires Seller to ship the goods using a premium (more expeditious) method of transportation, Seller will ship the goods as expeditiously as possible. Seller will pay, and be responsible for, the entire cost of such premium shipment, unless Buyer’s actions caused Seller to fail to meet Buyer’s delivery schedules, in which case Buyer will pay any costs for premium shipment.
   • 4.6 Volume Forecasts. Buyer may provide Seller with estimates, forecasts or projections of its future anticipated volume or quantity requirements for goods. Seller acknowledges that any such forecasts are provided for informational purposes only and, like any other forward looking projections, are based on a number of economic and business factors, variables and assumptions, some or all of which may change over time.  Buyer makes no representation, warranty, guaranty or commitment of any kind or nature, express or implied, regarding any such forecasts provided to Seller, including with respect to the accuracy or completeness of such forecasts.

 

5. QUALITY AND INSPECTION
   
   • 5.1 – Upon notice, Buyer may make inspection visit(s) at the site where the goods are being designed or manufactured or services performed. Upon request, Seller shall provide Buyer with written or verbal reports relating to the status of its performance hereunder. No inspection, testing, delivery nor payment for the goods and services delivered hereunder shall constitute acceptance thereof. Buyer may reject any goods or services which are in Buyer’s judgment defective or nonconforming. Goods rejected or those which are supplied in excess of quantities called for herein may be returned to Seller at its expense. In addition, Buyer may charge Seller all expenses of unpacking, examining, repacking and reshipping such goods. In the event Buyer receives goods or services whose defects or nonconformity are not apparent on examination, Buyer reserves the right to require replacement, as well as payment of damages. Nothing in this Order shall relieve the Seller from the obligations of testing, inspection and quality control.
   • 5.2 – Seller agrees (a) that all goods delivered hereunder shall have the maximum shelf life possible and, in any event, no goods delivered hereunder shall have less than two (2) years shelf life remaining at the time of delivery, based on the dating included on such goods’ packaging. If shelf life is outside of this, written consent must be received from the BUYER prior to shipment., (b) If SELLER wishes to change the Specifications, Facility, equipment, process, materials, inspection or testing of any goods, SELLER shall  notify BUYER in writing thirty (30) days prior to implementation of such changes.  SELLER shall be responsible for all costs and expenses related to such change.
   • 5.3 – Seller shall include with all shipments, all material certificates of compliance as required by specifications and drawings or in specific notes detailed on the purchase order. Buyer should be notified of any changes in the product, process or service provided.
   • 5.4 – Seller shall verify that all goods meet all specifications before shipment. Seller, upon request, shall give Buyer reasonable notice of such verifications and Buyer may be represented thereat.  Seller, upon request, shall supply Buyer with a certified true copy of Seller’s test results.  All goods or services will be subject to Buyer’s inspection and testing prior to acceptance.  Buyer may reject any non-conforming material and return it to Seller at Seller’s risk and expense at the full invoice price plus all applicable inspection, test, boxing, packing, crating, transportation and other related costs.  As an alternate, Buyer may, with Seller’s express permission and agreement to reimburse Buyer therefore, rework all or part of Seller’s non-conforming material.  Buyer or its representative may inspect or test goods to be delivered hereunder during manufacture, processing or storage.  If Buyer or its representative makes any inspection or test on the premises of Seller, Seller shall provide all reasonable facilities and assistance for the safety and convenience of such personnel.  If, as a result of any testing by Buyer or Seller, Buyer finds that the goods do not comply with the order or are unlikely to comply upon completion, Buyer shall inform Seller in writing and Seller shall take action to ensure compliance.
   • 5.5 – Buyer is not required to perform incoming inspections of any goods, and Seller waives any right to require Buyer to conduct any such inspections. Seller will not substitute any goods for the goods covered by this Contract unless Buyer consents in writing.  If Buyer rejects any goods as non‑conforming, Buyer may, at its option, (a) reduce the quantities of goods ordered under this Contract by the quantity of non‑conforming goods, (b) require Seller to replace the non‑conforming goods, and/or (c) exercise any other applicable rights or remedies.  If Seller fails to inform Buyer in writing of the manner in which Seller desires that Buyer dispose of non‑conforming goods within forty‑eight (48) hours of notice of Buyer’s rejection of non‑conforming goods (or such shorter period as is reasonable under the circumstances), Buyer will be entitled to dispose of the non‑conforming goods without liability to Seller, provided, however, that in any event Buyer may elect to arrange for the shipment of any non‑conforming goods back to Seller at Seller’s expense.  Seller will bear all risk of loss with respect to all non‑conforming goods and will promptly pay or reimburse all costs incurred by Buyer to return, store or dispose any non‑conforming goods.  Buyer’s payment for any non‑conforming goods will not constitute acceptance by Buyer, limit or impair Buyer’s right to exercise any rights or remedies, or relieve Seller of responsibility for the non‑conforming goods.

6. FORCE MAJEURE

If Seller is unable to produce, sell or deliver any goods or services covered by this Contract, or Buyer is unable to accept delivery, buy or use any goods or services covered by this Contract, as a result of an event or occurrence beyond the reasonable control of the affected party and without such party’s fault or negligence, then any delay or failure to perform under this Contract that results from such event or occurrence will be excused for only so long as such event or occurrence continues, provided, however, that the affected party gives written notice of each such delay (including the anticipated duration of the delay) to the other party as soon as possible after the event or occurrence (but in no event more than three (3) days thereafter).  Such events and occurrences may include, by way of example and not limitation, natural disasters, fires, floods, windstorms, severe weather, explosions, riots, wars, sabotage, labor problems (including lockouts, strikes and slowdowns), equipment breakdowns and power failures.  During any delay or failure to perform by Seller, Buyer may (i) purchase substitute goods from other available sources, in which case the quantities under this Contract will be reduced by the quantities of such substitute goods and Seller will reimburse Buyer for any additional costs to Buyer of obtaining the substitute goods compared to the prices set forth in this Contract and/or (ii) have Seller provide substitute goods from other available sources in quantities and at times Buyer requests and at the prices set forth in this Contract.  If Seller fails to provide adequate assurances that any delay will not exceed thirty (30) days or if any delay lasts more than thirty (30) days, Buyer may terminate this Contract without any liability to Seller or obligation to purchase raw materials, work-in-process or finished goods.

7. WARRANTY

Seller warrants and guarantees to Buyer, its successors, assigns and customers that the goods and services covered by this Contract will (a) conform to the then current release/revision level (based on date Buyer’s revision issued to Seller) of Buyer’s applicable specifications and drawings, (b) conform to all samples, descriptions, brochures and manuals furnished by Seller or Buyer, (c) be merchantable, (d) be of good material and workmanship, (e) be free from defect, and (f) be fit and sufficient for the particular purposes intended by Buyer and any customer of Buyer.  The period for each of the foregoing warranties will commence upon delivery of the goods to Buyer and, except as otherwise expressly agreed in writing by an authorized employee of Buyer, end twelve (12) months following the date the goods are delivered to Buyer.

If any goods are reasonably determined to fail to conform to the warranties set forth in this Contract, Seller shall reimburse Buyer for all reasonable losses, costs and damages caused by such nonconforming goods.  Such costs and damages may include, without limitation, costs, expenses and losses of Buyer and/or its customers arising from (i) inspection, sorting, repair or replacement of any nonconforming goods or any system or component that incorporates such nonconforming goods, (ii) production interruptions or slowdowns, and (iii) field service campaigns and other corrective service actions, including, without limitation, the amounts paid to distributors and/or dealers for materials and replacement parts (including reasonable markup to recover administrative costs or other capital expenses) and the labor costs to perform such work.

8. INGREDIENTS AND HAZARDOUS MATERIALS

If Buyer requests, Seller will promptly furnish to Buyer, in such form and detail as Buyer directs: (a) a list of all ingredients in the goods, (b) the amount of all ingredients, and (c) information concerning any changes in or additions to the ingredients.  Prior to, and together with, the shipment of the goods, Seller will furnish to Buyer and all carriers sufficient written warning and notice (including appropriate labels on the goods, containers and packing) of any hazardous material that is an ingredient or a part of any of the goods, together with all special handling instructions, safety measures and precautions as may be necessary to comply with applicable law, to inform Buyer and all carriers of any applicable legal requirements and to best allow Buyer and all carriers to prevent bodily injury or property damage in the handling, transportation, processing, use or disposal of the goods, containers and packing.

9. TERMINATION

Buyer may terminate all or any part of this Contract without any liability to Seller or obligation to purchase raw materials, work-in-process or finished goods if Seller (a) repudiates, breaches, or threatens to breach any of the terms of this Contract, including Seller’s warranties, (b) fails to perform or threatens not to perform services or deliver goods in accordance with this Contract or (c) fails to assure timely and proper completion of services or delivery of goods.

In addition to any other rights of Buyer to terminate this Contract, Buyer may immediately terminate all or any part of this Contract, at any time and for any reason, by notifying Seller in writing.  Upon such termination, Buyer may, at its option, purchase from Seller any or all raw materials, work‑in‑process and finished goods inventory related to the goods under this Contract which are useable and in a merchantable condition.  The purchase price for such finished goods, raw materials and work‑in‑process, and Seller’s sole and exclusive recovery from Buyer (without regard to the legal theory which is the basis for any claim by Seller) on account of such termination, will be (a) the contract price for all goods or services that have been completed in accordance with this Contract as of termination date and delivered and accepted by Buyer and not previously paid for, plus (b) the actual costs of work‑in‑process and raw materials incurred by Seller in furnishing the goods or services under this Contract to the extent such costs are reasonable in amount and are properly allocable or apportionable under generally accepted accounting principles to the terminated portion of this Contract less (c) the reasonable value or cost (whichever is higher) of any goods or materials used or sold by Seller with Buyer’s written consent.  In no event will Buyer be required to pay for finished goods, work-in-process or raw materials which Seller fabricates or procures in amounts that exceed those Buyer authorizes in delivery releases nor will Buyer be required to pay for any goods or materials that are in Seller’s standard stock or that are readily marketable.  Payments made under this Article will not exceed the aggregate price for finished goods that would be produced by Seller under delivery or release schedules outstanding at the date of termination.  Within thirty (30) days after the effective date of termination, Seller will submit a comprehensive termination claim to Buyer, with sufficient supporting data to permit an audit by Buyer, and will thereafter promptly furnish any supplemental and supporting information Buyer requests.

10. WORK PRODUCTS

All copyrightable material arising out of anything done pursuant to this Order shall constitute works made for hire/works made in the course of employment. Seller agrees that this Order constitutes an assignment of such rights to Buyer and agrees without cost or expense to Buyer to take such further appropriate action to assign such rights.

11. INDEMNIFICATION
    
    • 11.1. Infringement. Seller shall indemnify, hold harmless, and, if requested by Buyer, defend Buyer against any and all claims, including but not limited to claims of Buyer’s customers, that goods or services sold hereunder infringe any U.S. or foreign letters patent, copyright, trademark or any other rights and against any and all claims of unfair competition or trade secret violations, provided Buyer gives Seller prompt notice of any claim or proceeding and, at Seller’s expense, gives Seller necessary information and assistance; and Seller shall defend, indemnify and hold Buyer and its customers harmless against any and all expenses, losses, royalties, profits, damages and costs (including attorneys’ fees) resulting from any such claim or proceeding, including any settlement. Buyer may be represented by and actively participate through its own counsel in any such claim or proceeding if it so desires.
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    • Seller will defend, hold harmless and indemnify Buyer and its customers, and their respective successors and assigns, against any claims of infringement (including patent, trademark, copyright, moral, industrial design or other proprietary rights, or misuse or misappropriation of trade secret) and resulting damages and expenses (including, without limitation, attorney and other professional fees and disbursements) relating to the goods or services covered by this Contract, including any claims in circumstances where Seller has provided only part of the goods or services.   Seller waives any claim against Buyer that any such infringement arose out of compliance with Buyer’s specifications.
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    • 11.2 Activities on Buyer’s Premises. Seller will defend, hold harmless, and indemnify Buyer from and against any liability, claims, demands, damages, costs or expenses (including, without limitation, reasonable attorney and other professional fees and disbursements) arising from or in connection with the performance of any service or work by Seller or its employees, agents, representatives and subcontractors on Buyer’s or Buyer’s customer’s premises or the use of the property of Buyer or any customer of Buyer, except to the extent such liability arises out of the negligence or willful misconduct of Buyer or Buyer’s customer.
    • 11.3 Product Liability. Seller will defend, hold harmless, and indemnify Buyer from and against any liability and expenses (including, without limitation, attorney and other professional fees and disbursements) arising from or in connection with any third party claims or demands to recover for personal injury or death, property damage or economic loss caused by any of the goods or services supplied by Seller (regardless of whether such claim or demand arises under tort, negligence, contract, warranty, strict liability or any other legal theories), except to the extent such injury, damage or loss results from Buyer’s specifications as to design or materials or from alteration or improper repair, maintenance or installation by any party other than Seller.

     

    12. CONFIDENTIALITY

    Seller will (i) keep all Buyer’s Information (as defined below) confidential and disclose it only to its employees who need to know such Buyer’s Information in order for Seller to supply goods and services to Buyer under this Contract and (ii) use the Buyer’s Information solely for the purpose of supplying goods and services to Buyer.  Goods manufactured based on Buyer’s Information may not be used for Seller’s own use or sold by Seller to third parties without prior express written consent from an authorized employee of Buyer.  “Buyer’s Information” means all information provided to Seller by Buyer or its representatives or subcontractors in connection with the business, programs, goods and services covered by this Contract, including, without limitation, pricing and other terms of this Contract, specifications, data, formulas, compositions, designs, sketches, photographs, samples, prototypes, test vehicles, manufacturing, packaging or shipping methods and processes and computer software and programs (including object code and source code). Buyer’s Information also includes any materials or information that contain, or are based on, any Buyer’s Information, whether prepared by Buyer, Seller or any other person.  Buyer’s Information is the property of Buyer and Seller hereby assigns any work products or other intellectual property prepared or created by Seller that contains, or is based on, Buyer’s Information, to Buyer.

    13. COMPLIANCE WITH LAWS

    Seller, and any goods or services supplied by Seller, will comply with all applicable laws, rules, regulations, orders, conventions, ordinances and standards of the country(ies) of origin and destination or that relate to the manufacture, labeling, transportation, importation, exportation, licensing, approval, performance and/or certification of the goods or services, including, but not limited to, those relating to environmental matters, wages, hours and conditions of employment, subcontractor selection, discrimination, occupational health/safety and motor vehicle safety.  Neither Seller nor any of its subcontractors will utilize slave, prisoner or any other form of forced or involuntary labor in the supply of goods or services under this Contract.   Upon Buyer’s request, Seller will certify in writing its compliance with the foregoing.  Seller will defend, hold harmless and indemnify Buyer from and against any liability, claims, demands, damages or expenses (including reasonable attorney or other professional fees and disbursements) arising from or relating to Seller’s noncompliance with this Article.

    14. INSURANCE

    Seller will maintain insurance coverage as required by applicable law or as reasonably requested by Buyer with carriers reasonably acceptable to Buyer.   With respect to any such insurance coverage, Seller will furnish to Buyer either a certificate evidencing satisfaction of the above-mentioned insurance requirements under this Contract or certified copies of all insurance policies within ten (10) days after Buyer requests.  The certificate must provide that Buyer will receive thirty (30) days prior written notice from the insurer of any termination or reduction in the amount or scope of coverage.  The furnishing of certificates of insurance and purchase of insurance will not limit or release Seller from Seller’s obligations or liabilities under this Contract.

    15. SELLER’S EQUIPMENT

    Seller, at its expense, will furnish, keep in good condition with calibrations up to date, and replace when necessary all of its machinery and equipment, including related tooling, jigs, dies, gauges, fixtures, molds, patterns, fixtures and other accessories, required for the production of goods covered by this Contract (collectively, “Seller’s Equipment”).  Seller will insure Seller’s Equipment with fire and extended coverage insurance for its full replacement value.  Seller grants Buyer an irrevocable option  to take possession of, and title to, all or part of Seller’s Equipment that is specially designed or outfitted for the production of the goods covered by this Contract, in which event Buyer will, within forty-five (45) days following delivery of such Seller’s Equipment to Buyer, pay to Seller of the lower of (i) the net book value of such Seller’s Equipment (i.e., actual cost less amortization) or (ii) then current fair market value of such Seller’s Equipment, in each case less any amounts that Buyer has previously paid to Seller on account of such Seller’s Equipment.  The foregoing option will not apply to the extent that Seller’s Equipment is used to produce goods that are the standard stock of Seller and are then being sold by Seller to other customers.  Buyer’s right to exercise the foregoing option is not conditioned on Seller’s breach or Buyer’s termination of this Contract or upon payment of any other amounts due under this Contract.

    16. BUYER’S PROPERTY AND INFORMATION
        
        • 16.1 Acquisition of Tooling and Materials. To the extent that this Contract covers Buyer’s purchase of, or reimbursement to Seller for, any tooling, jigs, dies, gauges, fixtures, molds, patterns, equipment, supplies, materials and other items (collectively, “Tooling and Materials”) to be used in connection with Seller’s actual or anticipated supply of goods to Buyer, Seller will acquire such Tooling and Materials as agent of Buyer and Buyer shall pay to or reimburse Seller the lower of (i) the amount specified in this Contract for such Tooling and Materials or (ii) Seller’s actual out-of-pocket cost to acquire the Tooling or Materials from an unrelated  third party or, if the Tooling and Materials are constructed or fabricated by Seller or any affiliate of Seller, the actual direct costs for materials, labor and overhead associated with such construction and fabrication.   Seller shall assign to Buyer any contract rights or claims in which Seller has an interest with respect to such Tooling and Materials. Seller shall establish a reasonable accounting system that readily enables the identification of Seller’s costs as described above.  Buyer or its agents shall have the right to audit and examine all books, records, facilities, work, material, inventories and other items relating to any such Tooling and Materials.  Upon Seller’s acquisition of such Tooling and Materials, title thereto shall vest immediately in Buyer and such Tooling and Materials shall be held as “Buyer’s Property” by Seller.
        • 16.2 Bailment of Buyer’s Property. All Tooling and Materials which Buyer furnishes, either directly or indirectly, to Seller or which Buyer buys from, or gives reimbursement to, Seller in whole or in part (collectively, “Buyer’s Property”) will be and remain the property of Buyer and be held by Seller on a bailment basis.  Title to all replacement parts, additions, improvements and accessories purchased by Seller will vest in Buyer immediately upon attachment to or incorporation into Buyer’s Property.  When permitted by law, Seller waives any lien or other rights that Seller might otherwise have on or in any of Buyer’s Property for work performed on, or utilizing, such property or otherwise.
        • 16.3 Seller’s Duties with Respect to Buyer’s Property. While Buyer’s Property is in Seller’s possession and until Seller delivers Buyer’s Property back to Buyer, Seller bears the risk of loss, theft and damage to Buyer’s Property.  Seller will be responsible for the cost of repairing or replacing Buyer’s Property if it is stolen, damaged or destroyed regardless of cause or fault.  Seller will at all times: (a) regularly inspect, maintain in good condition, and repair Buyer’s Property at Seller’s own expense, (b) use Buyer’s Property only for the performance of this Contract, (c) deem Buyer’s Property to be personal property, (d) conspicuously mark Buyer’s Property as the property of Buyer and maintain such markings, (e) not commingle Buyer’s Property with the property of Seller or with that of a third person, (f) not move Buyer’s Property from Seller’s applicable shipping location (as shown by the shipping address of Seller) without prior written approval from an authorized employee of Buyer, and (g) use Buyer’s Property in compliance with Buyer’s or the manufacturer’s instructions and in compliance with all federal, state and local laws, ordinances and regulations.  Buyer will have the right to enter Seller’s premises at all reasonable times to inspect Buyer’s Property and Seller’s records with respect thereto. Seller will not sell, lend, rent, encumber, pledge, lease, transfer or otherwise dispose of Buyer’s Property.  Furthermore, Seller will not assert, or permit any person claiming an interest through Seller to assert any claims of ownership to or any other interest in Buyer’s Property.
        • 16.4 Return of Buyer’s Property. Seller agrees that Buyer has the right, at any time and from time to time, with or without reason and without payment of any kind, to retake possession of or request the return of Buyer’s Property.  Without further notice or court hearings, which rights, if any, are hereby waived, Buyer or its designee(s) will have the right to enter Seller’s premises and take possession of any and all of Buyer’s Property.  Upon Buyer’s request and in accordance with Buyer’s instructions, Buyer’s Property will be immediately released to Buyer or delivered to Buyer by Seller, either (i) FCA (Free Carrier) TTOP (Title Transfer Our Plant) (IncoTerms 2000) at Seller’s plant properly packed and marked in accordance with the requirements of the carrier selected by Buyer to transport such Buyer’s Property or (ii) to any location Buyer designates, in which event Buyer will pay Seller the reasonable costs of delivering Buyer’s Property to the location Buyer designates.  If Seller does not release and deliver any Buyer’s Property in accordance with this Article, Buyer may obtain an immediate writ of possession without notice and without the posting of any bond and/or enter Seller’s premises, with or without legal process, and take immediate possession of Buyer’s Property.
        • 16.5 Disclaimer of Warranties. Seller acknowledges and agrees that (i) Buyer is not the manufacturer of Buyer’s Property nor the manufacturer’s agent nor a dealer therein, (ii) Buyer is bailing Buyer’s Property to Seller for Seller’s benefit, (iii) Seller is satisfied that Buyer’s Property is suitable and fit for its purposes, and (iv) BUYER HAS NOT MADE AND DOES NOT MAKE ANY WARRANTY OR REPRESENTATION WHATSOEVER, EITHER EXPRESS OR IMPLIED, AS TO THE FITNESS, CONDITION, MERCHANTABILITY, DESIGN OR OPERATION OF BUYER’S PROPERTY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE.  Buyer will not be liable to Seller for any loss, damage, injury or expense of any kind or nature caused, directly or indirectly, by Buyer’s Property, including, without limitation, the use or maintenance thereof, or the repair, service or adjustment thereof, or by any interruption of service or for any loss of business whatsoever or howsoever caused, including, without limitation, any loss of anticipatory damages, profits or any other indirect, special or consequential damages and/or personal injury or death.

     

    17. REMEDIES AND INJUNCTIVE RELIEF

    The rights and remedies reserved to Buyer in this Contract are cumulative with, and in addition to, all other or further remedies provided in law or equity.  To the extent that this Contract is for the supply of goods for use as, or fabrication into, parts, components or systems, Seller acknowledges and agrees that money damages would not be a sufficient remedy for any actual, anticipatory or threatened breach of this Contract by Seller with respect to its delivery of goods to Buyer and that, in addition to all other rights and remedies which Buyer may have, Buyer shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach.

    18. BUYER’S RECOVERY RIGHT

    With respect to any monetary obligations of Seller or Seller’s affiliates to Buyer or Buyer’s affiliates, including, without limitation, direct and indirect losses, costs and damages resulting from Seller’s failure to timely delivery goods or services, the failure of any goods or service to conform to applicable warranties or other breach by Seller of this Contract, Buyer may at any time, as applicable, recover, recoup or setoff such amounts by deducting such amounts from any sums that are, or will become, owing, due or payable to Seller or Seller’s affiliates by Buyer or Buyer’s affiliates.

    19. NO ADVERTISING

    Seller will not, in any manner, advertise or publish that Seller has contracted to furnish Buyer the goods or services covered by this Contract or use any trademarks or trade names of Buyer in Seller’s goods, advertising or promotional materials unless Buyer consents in writing.

    20. NO IMPLIED WAIVER

    The failure of either party at any time to require performance by the other party of any provision of this Contract will not affect the right to require such performance at any later time, nor will the waiver by either party of a breach of any provision of this Contract constitute a waiver of any succeeding breach of the same or any other provision.  No failure or delay in exercising any right or remedy will operate as a waiver thereof nor will any single or partial exercise thereof preclude other or further exercise thereof.  No course of dealing or course of performance may be used to evidence a waiver or limitation of Seller’s obligations under this Contract.

    21. ASSIGNMENT AND SUBCONTRACTING

    Seller may not subcontract any part of this Order beyond that customary in the conduct of its business without Buyer’s prior written consent. Seller may not assign this Order or amounts due hereunder without Buyer’s written consent.

    22. RELATIONSHIP OF PARTIES

    Seller and Buyer are independent contracting parties.  Nothing in this Contract makes either party the agent or legal representative of the other for any purpose whatsoever, nor grants either party any authority to assume or create any obligation on behalf of or in the name of the other party.

    23. GOVERNING LAW AND JURISDICTION

    This contract shall be governed in all respects by the laws of the province of Ontario, and those laws of Canada applicable therein, without regard to choice of law provisions, and not by the 1980 U.N. Convention on contracts for the international sale of goods. The parties agree that jurisdiction over and venue in any legal proceeding arising out of or relating to this contract shall be in the Superior Court of Justice for the province of Ontario.

    24. SEVERABILITY

    If any provision of this Contract is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such provision will be deemed reformed or deleted, as the case may be, but only to the extent necessary to comply with such statute, regulation, ordinance, order or rule, and the remaining provisions of this Contract will remain in full force and effect.

    25. LIMITATIONS

    All rights of Seller to commence any court action or proceeding with respect to this Order shall terminate one (1) year after the cause of action has accrued.

    26. EXPENSES OF LITIGATION

    In the event Buyer is involved in any litigation with respect to this Order, Buyer shall recover from Seller its costs and attorneys’ fees incurred in enforcing or defending its rights hereunder.

    27. ENTIRE AGREEMENT

    This Contract, together with the attachments, exhibits, supplements or other terms of Buyer specifically referenced in this Contract, constitutes the entire agreement between Seller and Buyer with respect to the matters contained in this Contract and supersedes all prior oral or written representations and agreements.  This Contract may only be modified by a written contract amendment issued by Buyer.  Notwithstanding anything to the contrary contained herein, Buyer explicitly reserves, and this Contract will not constitute a waiver or release of, any rights and claims against Seller arising out of, or relating to, any fraud or duress in connection with the formation of this Contract or any breach or anticipatory breach of any previously existing contract between Buyer and Seller (whether or not such previously existing contract related to the same or similar goods or subject matter as this Contract).  All payments by Buyer to Seller under this Contract are without prejudice to Buyer’s claims, rights, or remedies.

    28. TRANSLATIONS

    Buyer may provide various translated versions of these General Terms and Conditions for informational purposes only.  However, the original English language version of these General Terms and Conditions will apply in the event of any disagreement over the meaning or construction of any provisions of these General Terms and Conditions.