TERMS & CONDITIONS FOR PURCHASE:
1. This purchase order expressly limits acceptance to the terms and conditions stated herein. Any additional or different terms proposed by Seller are objected to and rejected and shall be deemed a material alteration thereof, unless expressly assented to in writing by Buyer. Performance by Seller shall constitute acceptance of this purchase order, including all terms and conditions contained herein. No contract shall exist except herein provided.
2. Seller must acknowledge, by corrected copy returned to Buyer, any discrepancies within fifteen (15) days of the order date.
3. Seller warrants that the prices for the goods or services sold hereunder are not less favorable than those currently extended to any other customer for the same or similar goods or services in similar quantities. In the event Seller reduces its prices for such goods or services prior to accepting this purchase order or during the term of performance of any purchase order for goods or services, Seller agrees to reduce the prices hereof accordingly. Seller warrants that the prices shown in this purchase order shall be complete and no additional charges shall be added without Buyer's express written consent. Such additional charges include, but are not limited to, shipping, packaging, labeling, custom duties, taxes, insurance, storage, boxing and crating. If price is not stated in this purchase order, it is agreed that the goods and/or services shall be billed at the price last quoted or billed at the prevailing market price, whichever is lower. This purchase order shall not be filled at a higher price than last quoted or charged without Buyer's specific written authorization. Physical test reports and certificates of analysis when requested by Buyer are to be furnished without additional cost.
4. The specific quantity ordered must be delivered in full and not be changed without the Buyer's written consent. Any unauthorized quantity is subject to Buyer's rejection and returned at Seller's expense.
5. Seller shall be solely responsible for maintaining such adequate health, auto, workers' compensation, unemployment compensation, disability, liability, and other insurance, as is required by law or as is the common practice in Seller's trades or businesses, whichever affords greater coverage. Upon request, Seller shall provide Buyer with certificates of insurance or evidence of coverage before commencing performance under this purchase order. Seller shall provide adequate coverage for any of Buyer's property under the care, custody or control of Seller. In no event shall the foregoing coverage limits affect or limit in any manner Seller's contractual liability for indemnification under Section 7 of this Agreement. Damage to Buyer's premises or manufacturing facilities caused by Seller's workmen shall be repaired to the satisfaction of Buyer at Seller's expense.
6. Seller warrants to the Buyer that all goods to be delivered under this purchase order shall be merchantable quality, free from any latent or patent defects, will conform to Buyer's specifications or samples, and will be safe and effective for their intended uses. All warranties shall remain in effect for a period of one (1) year from the date of acceptance of the goods by Buyer, and shall not be deemed waived either by reasons of Buyer's acceptance of goods or by payment for the goods. These warranties shall be in addition to any other warranties, express, implied, or statutory. All warranties shall run to Buyer, its customers and subsequent owners of the goods to which they relate. There are no exclusions, limitations, or disclaimers of warranty other than those that may be expressly recited therein or in the purchase order. All warranties shall be construed liberally in favor of Buyer. Notice of breach of warranty may be given orally or in writing; said notice need not include a clear statement of all objections that shall be relied upon by Buyer as the basis for breach. All warranties shall be construed as conditions as well as promises. The warranties expressed herein shall be construed as consistent and cumulative with each other and with all warranties implied by law. It is the intent of Buyer and Seller that if any warranties are held to be inconsistent, Buyer may, at any time, including in the course of a suit for breach, select which warranty shall be excluded from the purchase order.
7. Seller warrants to the Buyer that the goods purchased hereunder do not infringe any patent, trademark, copyright or other intellectual property right subsisting in, issued by or granted by the United States or Canada and covenants and agrees to indemnify and hold Buyer, its customers and users of its products, harmless against any claim or demand based upon such infringement, and after notice, to appear and defend at its own expense any suits at law or in equity arising therefrom.
8. Seller warrants to the Buyer that all services to be performed under this purchase order will be performed in a good and workman-like manner at quality levels consistent with industry standards and in accordance with any and all specifications provided by Buyer. All warranties shall remain in effect for a period of one (1) year from the date of completion of the services by Seller. All warranties shall run to Buyer, its customers and subsequent owners of the services to which they relate. There are no exclusions, limitations, or disclaimers of warranty other than those that may be expressly recited therein or in the purchase order. All warranties shall be construed liberally in favor of Buyer. Notice of breach of warranty may be given orally or in writing; said notice need not include a clear statement of all objections that shall be relied upon by Buyer as the basis for breach. All warranties shall be construed as conditions as well as promises. The warranties expressed herein shall be construed as consistent and cumulative with each other and with all warranties implied by law. It is the intent of Buyer and Seller that if any warranties are held to be inconsistent, Buyer may, at any time, including in the course of a suit for breach, select which warranty shall be excluded from the purchase order.
9. Seller agrees to indemnify and hold harmless Buyer, its affiliates, and their respective directors, officers, employees and agents, from and against any and all claims or liability (other than liability solely due to the negligence of Buyer), including reasonable attorneys' fees, arising out of or resulting in any way from any defect in the goods or services provided hereunder or from any act or omission of Seller, its agents, employees or subcontractors, including but not limited to (i) the negligence or willful misconduct of the Seller, its agents or employees, (ii) any claim for bodily injury or death, damage to property or any claim by an employee or subcontractor of Seller for wages and benefits, which occur in connection with the performance by Seller, and (iii) the sale or license to or by, or use by, Buyer of the goods or services, including but not limited to any claim alleging the violation or infringement of any third party's patent, copyright, trademark, trade secret or any other proprietary rights. Seller's obligation to indemnify Buyer shall survive the expiration or termination of the purchase order by either party for any reason. Seller may, at its option, conduct the defense of any third party action and Buyer will cooperate with Seller's defense. If the use or sale of any goods is enjoined as a result of any action or proceeding, in addition to such other rights or remedies that Buyer may have hereunder or by law, Seller, at no expense to Buyer, shall obtain for Buyer and its customers the right to use and sell said item, or shall substitute an equivalent item, acceptable to Buyer, and extend this indemnity with respect to such item. In the event that Seller is unable to secure such rights of use or to secure an equivalent item as a substitute for the Buyer or its customers, Seller will indemnify Buyer and its customers for any and all losses or damages sustained by reason of such injunction.
10. BUYER SHALL NOT BE LIABLE TO SELLER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) RESULTING FROM BUYER'S PERFORMANCE OR ANY FAILURE TO PERFORM HEREUNDER INCLUDING, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS OR BENEFITS, EVEN IF BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Any action resulting from any breach on the part of Buyer must
be commenced within one (1) year after the cause of action has accrued. Buyer's liability on any claim of any kind for loss or damage arising out of, in connection with or resulting from the purchase order shall in no case exceed the price of the particular goods or services given rise to the claim.
11. All goods received or services performed shall be subject to Buyer's right of inspection and rejection. Defective goods or goods not in accordance with Buyer's specifications will be held for Seller's risk and, if Seller so directs will be returned or disposed of at Seller's expense. Goods and services shall conform to the descriptions and specifications contained in this purchase order and any applicable appendix thereto. Acceptance by Buyer will occur (i) for service or goods installed by Seller, upon completion to the satisfaction of Buyer of any acceptance tests or programs described in the purchase order or attachments thereto, as evidenced by any acceptance certificate signed by Buyer; or (ii) for goods not installed by the Seller; on the thirtieth (30th) day following receipt of the goods by Buyer, unless Seller is notified in writing within such period that, in Buyer's sole judgment, the goods do not conform to Seller's specifications, in which event Buyer may return the goods to Seller, freight collect, and be refunded all advance payment made therefore.
12. Buyer reserves the right to cancel all or any part of the undelivered portion of this purchase order if Seller does not make deliveries of conforming goods as specified, time being of the essence of this contract, of if Seller breaches any of the terms hereof including, without limitation, the warranties of Seller. Buyer further reserves the right to terminate this purchase order in whole or in part for convenience upon written notice to Seller, in which event Seller shall be entitled only to reasonable termination charges consisting of a percentage of the order price reflecting the percentage of work performed prior to terminations plus actual direct costs resulting from termination.
13. Buyer shall not be liable for any failure to perform including failure to (i) accept performance of services or (ii) take delivery of the goods as provided caused by circumstances beyond Buyer's control which make such performance commercially impractical including, but not limited to, acts of God, fire, flood, acts of war, government action, accident, labor difficulties or shortage, inability to obtain materials, equipment or transportation.
14. Delivery of goods and/or services is not complete until such goods and/or services have actually be received and accepted by Buyer. Risk of loss or damage of goods during transit is on Seller.
15. Every right and remedy reserved by Buyer in this purchase order shall be cumulative and additional to any other or further remedies provided in law or equity or in this purchase order.
16. Seller agrees to comply with all applicable federal, state and local laws, codes, regulations, rules and orders in the performance of this purchase order and that all products have been produced and services have been performed in compliance with the Fair Labor Standards Act and all other applicable Federal, State and Municipal laws, codes, regulations, rules and orders. Seller will not discriminate against any applicant or employee because of race, color, religion, sex or national origin.
17. Seller warrants that in furnishing goods or services hereunder, applicable Canadian standards (including federal, provincial, local or international standards with Canadian application) have been complied with at the time of delivery.
18. Any dispute, controversy or claim arising out of or relating to this purchase order shall be settled by arbitration to be held in Ontario in accordance with National Arbitration Rules of the ADR Institute of Canada, Inc., and judgment upon any reward rendered in such proceedings may be entered into any court having jurisdiction as provided by law.
19. This contract shall be governed and construed according to the laws of the Province of Ontario without regard to principles of conflicts of law. The applicability of the UN Convention on Contracts for the International Sale of Goods is hereby expressly waived by the parties and shall not apply to the terms and conditions of this purchase order.
20. This contract shall not be assigned by Seller without Buyer's written consent.
21. Seller will acquire knowledge of Buyer's confidential information ("Buyer's Confidential Information"), as defined below, in connection with its performance hereunder and agrees to keep such Buyer's Confidential Information in confidence during and following termination or expiration of this purchase order. Buyer's Confidential Information includes but is not limited to all information, whether written or oral, in any form, including without limitation, information relating to research, development, products, methods of manufacture, trade secrets, business plans, customers, vendors, finances, personnel data, Work Product (as defined herein) and other material or information considered proprietary by Buyer relating to the current or anticipated business or affairs of Buyer which is disclosed directly or indirectly to Seller. In addition, Buyer's Confidential Information means any third party's proprietary or confidential information disclosed to Seller in the course of providing goods or services to Buyer. Buyer's Confidential Information does not include any information (i) which Seller lawfully knew without restriction on disclosure before Buyer disclosed it to Seller, (ii) which is now or becomes publicly known through no wrongful act or failure to act of Seller, (iii) which Seller developed independently without use of the Buyer's Confidential Information, as evidenced by appropriate documentation, or (iv) which is hereafter lawfully furnished to Seller by a third party as a matter of right and without restriction on disclosure. In addition, Seller may disclose Confidential Information which is required to be disclosed pursuant to a requirement of a government agency or law so long as Seller provides prompt notice to Buyer of such requirement prior to disclosure. Seller agrees not to copy, alter or directly or indirectly disclose any of Buyer's Confidential Information. Additionally, Seller agrees to limit its intentional distribution of Buyer's Confidential Information to those who have a need to know, and to take steps to ensure that the dissemination is so limited, including the execution by Seller of nondisclosure agreements with provisions substantially similar to those set forth herein. In no event will Seller use less than the degree of care and means that it uses to protect its own information of like kind, but in any event not less than reasonable care to prevent the unauthorized use of Buyer's Confidential Information. Seller further agrees not to use the Buyer's Confidential Information except in the course of performing hereunder and will not use such Buyer's Confidential Information for its own benefit or for the benefit of any third party. The mingling of the Buyer's Confidential Information with information of Seller shall not affect the confidential nature or ownership of the same as stated hereunder. Seller agrees not to design or manufacture any products which incorporate Buyer's Confidential Information.
For purposes of this purchase order, "Work Product" shall include, without limitation, all designs, discoveries, creations, works, devices, masks, models, work in progress, service deliverables, inventions, products, computer programs, procedures, improvements, developments, drawings, notes, documents, business processes, information and materials made, conceived or developed by Seller alone or with others which result from or relate to the services performed hereunder. Standard goods manufactured by Seller and sold to Buyer without having been designed, customized or modified for Buyer do not constitute Work Product. All Work Product shall at all times be and remain the sole and exclusive property of Buyer.
22. Buyer is interested only in the results obtained under this purchase order; the manner and means of achieving the results are subject to Seller's sole control. Seller is an independent contractor for all purposes, without express or implied authority to bind Buyer by contract or otherwise. Neither Seller nor its employees, agents
or subcontractors are agents or employees of Buyer, and are therefore are not entitled to any employee benefits of Buyer, including but not limited to, any type of insurance. Seller shall be responsible for all costs and expenses incident to performing its obligations under this purchase order and shall provide Seller's own supplies and equipment.
23. Except for purchase orders which may be sent by local mail, facsimile transmission, or electronically transmitted, all notices and other communications hereunder shall be in writing, and shall be addressed to Seller or to an authorized Buyer representative, and shall be considered given (i) when delivered personally, (ii) sent by confirmed facsimile, (iii) sent by commercial overnight courier with written verification receipt, or (iv) three (3) days after having been sent, postage prepaid, by first class or certified mail.
24. This purchase order is a non-exclusive agreement. Buyer is free to engage others to perform services or provide goods the same as or similar to Seller's.
25. The terms and conditions herein shall constitute the entire agreement between the parties unless expressly modified in writing signed by both the Buyer and Seller. Waiver by either party of any default of the other shall not operate to excuse the defaulting party from further compliance with this contract.
CHURCH & DWIGHT CANADA CORP.