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The Purchase Order issued by purchaser (“Purchaser”) is conditional upon acceptance by Seller of these Terms and Conditions of Purchase, subject to the specific exceptions provided herein. Purchaser expressly limits his obligations to those stipulated in these Terms and Conditions of Purchase and those stated on the face of the issued Purchase Order.
The terms and conditions outlined herein represent the complete agreement of the parties with respect to the purchase contemplated by these Terms and Conditions of Purchase and the related Purchase Order (“Purchase”) and no condition modifying the provisions hereof shall be binding upon the Purchaser, unless specifically agreed upon by Purchaser or agreed to in writing by an authorized representative of the Purchaser. The Purchase Order is made only on the express understanding and condition that insofar as this purchase order conflicts with any terms and conditions of Seller’s documents, the present Purchase Order shall govern, regardless of whether the Seller accepts these terms and conditions by written acknowledgement.
Purchaser’s failure to object to provisions contained in any communication received from Seller, his acceptance of the goods or services, any delay in the exercise of his rights hereunder or any waiver of any default, breach or non-compliance of the applicable terms and conditions shall not be construed nor operate to be a continuing waiver thereof.
No modification of these terms and conditions shall be effective unless agreed to in writing by an authorized representative of each of the parties hereto.
In the event of discrepancy, documents will be interpreted in the following order:
Discount date or due date shall be calculated from the latest of the following:
The goods covered by this order shall be properly packaged by Seller, and the Purchaser may reject items which are not properly packaged or not in suitable containers. Goods damaged in transit due to faulty packaging may be refused and all costs associated with returning the goods shall be the sole responsibility of the Seller.
In the event of delay in delivery or breach of any of the provisions of these Terms and Conditions of Purchase, Purchaser shall be entitled to i) reject any and all future shipments or deliveries and ii) cancel the Purchase with respect to future shipments or deliveries without any liability to Seller and without prejudice to Purchaser’s rights to claim damages against Seller. Such damages shall include, without limitation, the amount of any penalty which Purchaser has been required to pay its customer by reason of late delivery of equipment and/or goods supplied to such customer by Purchaser when such late delivery was caused by Seller’s failure to make deliveries of the goods in accordance with the delivery schedule as stipulated on the Purchase Order. All expenses of transportation and storage shall be the sole responsibility of the seller.
Purchaser shall be entitled to reject any part of a shipment in excess of 10 percent of the requested quantity. All costs associated with returning goods shall be the sole responsibility of the Seller. In the case of early shipments which are not being returned to the Seller, the discount due date or the invoice due date will be calculated based on the requested delivery date.
Unless agreed to otherwise in writing by the authorized representative of the Purchaser, Seller guarantees that all the goods supplied in terms of the Purchase will be free from defects in material and workmanship and will conform to specifications, drawings or samples given and fit for the purpose for which they are intended. The Seller further guarantees that all services performed hereunder will be free from defects in workmanship. All warranties and service guarantees shall continue in force for a period of time which conforms to the standard practice in the Seller’s trade, provided that the period be not less than twelve months from the date upon which the goods are put to use or installed, as the case may be, or, in the case of services, from the date upon which the supply of said services is complete,. The aforementioned warranties inure to the benefit of Purchaser, its customers or users of the goods or services. In the event of any defect or failure within the warranty period, the Seller agrees to replace defective goods or to correct defects or failures at its own expense or to remedy the supply of services, as applicable.
Neither party shall be liable for any failure or delay in performance hereunder that results from any causes beyond its control and without its fault or negligence provided that the party whose performance is hindered promptly notifies the other party of the event of Force Majeure and uses commercially reasonable efforts to promptly overcome the failure or delay in performance upon becoming aware of the same. If Seller shall be unable, due to such a cause to meet all of its delivery commitments for the goods ordered herein as they become due, Seller shall not discriminate against Purchaser in favor of any other customer in making deliveries of such goods. If Purchaser believes that the delay or anticipated delay in Seller’s deliveries may impair its ability to meet its production schedules or may otherwise interfere with its operations Purchaser may at its option and without liability to Seller cancel outstanding deliveries either wholly or in part.
Purchaser shall have a reasonable time after delivery within which to inspect the goods. Purchaser shall give written notice to Seller of any rejection of goods, and goods rejected will, at the Seller’s expense, be returned to Seller or otherwise disposed of as Seller shall reasonably request. The cost of inspection of goods rightfully rejected shall be the sole responsibility of the Seller.
Seller shall comply with all federal, provincial, state and/or local laws and regulations where noncompliance by the Seller could result in liability accruing to Purchaser. Seller agrees to indemnify and hold harmless Purchaser for any liability imposed on Purchaser resulting from such noncompliance by the Seller and all related costs including reasonable attorneys’ fees.
Seller guarantees that the Purchase, use or sale of the goods or services furnished in terms hereof, in the form in which furnished to Purchaser, will not infringe any valid Canadian or foreign patent or copyright and Seller agrees to defend any claim, action or suit that may be brought against Purchaser for patent or copyright infringement by reason of Purchaser’s purchase, use or sale of such goods. Seller also agrees to indemnify Purchaser and hold Purchaser harmless against all judgments, decrees, damages, cost and expenses recovered against Purchaser or sustained by Purchaser on account of such actual or alleged infringement.
Seller shall not assign any or all of its rights or obligations to supply goods or services pursuant to the Purchase Order without the prior written consent of Purchaser. Without limiting the generality of the foregoing, it is expressly agreed that Seller shall remain fully liable to Purchaser for all goods or services, or portions thereof, procured by Seller from subcontractors, as if such goods or services had been supplied to Purchaser by Seller itself.
If Seller ceases to conduct its operation in the normal course of business (including inability to meet its obligations as they mature) or if any proceeding under the bankruptcy or insolvency laws 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, any of such events being hereinafter designated “Event of Termination”, Purchaser may terminate this Purchase without liability except for deliveries previously made or for goods manufactured as of the date of the Event of Termination and subsequently delivered in accordance with the terms and conditions of this Purchase Order or for services rendered as of the date of the Event of Termination.
Seller shall be responsible for and shall save harmless and indemnify the Purchaser from and against all costs, damages, suit, and claims and demands of every nature whatsoever arising out of, or by reason of the performance of the services or the delivery of the goods including, without limitation, those made or sustained in respect of property damage and personal injury including death. Seller shall hold harmless and defend Purchaser from any liability or costs arising from such injuries or damage.
The Purchase Order and any contract arising therefrom shall be governed by and construed according to the laws of the Province and/or State where the office issuing the order is located and the Courts of such Province and/or State shall have sole jurisdiction.
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