TERMS AND CONDITIONS
Each purchase order issued by CGC Inc. ("Buyer") to a seller of
goods ("Seller") to Buyer (a "Purchase Order"), is made expressly
subject to the following terms and conditions (the "Terms and
Conditions"):
1. Agreement to Govern.
Any purchases by Buyer under a Purchase Order will begoverned by
the Terms and Conditions and the Terms and Conditions will prevail
over any additional, contrary or inconsistent terms or conditions
contained in any order, estimate, shipment or invoicing document of
Seller, unless expressly incorporated inthese Terms and Conditions
on the face of a Purchase Order. The Terms and Conditions will be
deemed accepted upon the commencement of performance by Seller.
2. Specifications.
All specifications, drawings and data submitted to Seller by
Buyer in connection with a Purchase Order are incorporated in and
made a part of the Terms and Conditions.
3. Confidentiality.
Each party acknowledges that its respective performance of its
obligations under a Purchase Order and the Terms and Conditions may
require that it have access to confidential business and
proprietary information of the other including but not limited
to:
(a) data, plans, specifications,
formulae, drawing or any other information whether business or
technical, of a confidential nature, which has been furnished
directly or in directly, in writing or otherwise to the other;
and
(b) such information as a person
familiar with the disclosing party's business and the industry in
which it operates would reasonably consider to be (i) of a
confidential or proprietary nature and (ii) that the maintenance of
its confidentiality would likely be of commercial value to the
disclosing party ("Confidential Information"). Each party agrees on
behalf of itself and its officers, directors, employees and agents
to use its/their best efforts to prevent either duplication or
disclosure of the Confidential Information of the other party.
Confidential Information will not include
(a) information that is in the
public domain prior to its disclosure,
(b) becomes part of the public
domain through no wrongful act of the receiving party,
(c) was in the lawful possession of
the receiving party prior to its disclosure to the receiving party
in connection with a Purchase Order or
(d) was independently developed by
the receiving party.
4. Delivery.
Buyer reserves the right to cancel all or any part of the
undelivered portion of a Purchase Order if Seller does not make
deliveries as specified in a Purchase Order, time being of the
essence of a Purchase Order, or if Seller breaches any of the Terms
and Conditions including, without limitation, the warranties of
Seller described in Paragraph
5. Verification and Records.
Seller will comply with all drawings and test
specificationsrelating to the goods incorporated in the Terms and
Conditions under Paragraph 2 above and will make such tests as are
specified in such drawings, designs and specifications. Buyer or
its customers will be afford the right to perform verifications at
Seller's premises or upon receipt of the goods. Where Buyer or its
customers request to perform verifications at Seller's premises,
Seller will furnish, at no additional charge, facilities and
assistance for safe and convenient inspections and tests. No
verification, where performed, will relieve Seller of its
obligations and warranties under the Terms and Conditions. The
Seller will maintain quality records for six years unless otherwise
specified to demonstrate conformance to contractual requirements
and the effective operation of the goods. Seller will provide
access to plant facilities, if applicable, and records of Seller
for inspection and/or audit by Buyer and/or other parties
authorized by Buyer.
6. Warranty.
Seller warrants to Buyer, its successors, assigns, customers and
users of the products manufactured by Buyer incorporating the goods
purchased pursuant to a Purchase Order (including all replacement
items and all replacement or corrected components which Seller
furnishes pursuant to this warranty) that:
(a) it has good title to any and all
goods supplied pursuant to a Purchase Order, and said goods are and
will be free and clear of any and all liens and encumbrances;
(b) any and all goods supplied under
a Purchase Order will be of merchantable quality;
(c) any and all goods supplied under
a Purchase Order will be (i) fit for the particular use intended,
(ii) free from defects, whether patent or latent, in material and
workmanship, and (iii) in full conformity with all contract
specifications and requirements; and
(d) Seller will, in the performance
of its obligations hereunder, comply with all, and will not violate
any applicable federal, provincial or local laws or governmental
regulations or orders.
The foregoing warranties will survive acceptance of the goods by
Buyer and will be in addition to any warranties of additional scope
given to Buyer by Seller.
7. Title and Risk of Loss.
Unless otherwise specified on the face of a Purchase Order,
title to the goods and risk of loss thereof, will pass to Buyer
upon their delivery to and acceptance by Buyer. The carrier
handling delivery of the goods must be approved by Buyer, which
approval will not be unreasonably withheld and the cost of
transportation will be prepaid by Seller and included in the cost
of the goods, unless otherwise specified on the face hereof. All
goods will be received by Buyer subject to its right of inspection
and rejection. Buyer will be allowed a reasonable period of time to
inspect the goods and to notify Seller of any non-conformance with
the Terms and Conditions and/or with a Purchase Order. Buyer may
reject any goods which do not conform to the Terms and Conditions
and/or to a Purchase Order. Goods so rejected may be returned to
Seller or held by Buyer for pick-up by Seller, in either case at
Seller's risk and expense.
8. Transportation.
No charge will be made to Buyer for storage or packing
unless
specified. Carrier and route used must result in lowest rate
possible consistent with service rendered except when otherwise
specified by Buyer, and penalties or increased charges due to
failure so to do will be charged to Seller. Shipping instructions
approved by Buyer are part of a Purchase Order.
9. Indemnification.
Seller will defend, indemnify and save harmless Buyer, its
officers, directors, successors, assigns, employees, agents,
customers and users of its products incorporating the goods
described in a Purchase Order, of and from any claim, loss, damage
or expense (including reasonable legal fees) including any
incidental or consequential damages, directly or indirectly arising
out of:
(a) any infringement or claim of
infringement of any patents, trademark, copyright or trade secrets
by reason of the use or sale of any goods purchased hereunder,
except goods manufactured in accordance with Buyer's design;
(b) any losses or damages,
including, but not limited to, incidental and consequential
damages, arising from injury to persons or property by reason of
any defects in the goods, or breach by Seller of any of its
warranties, or Seller's failure to timely deliver the goods
purchased hereunder; or
(c) any non-compliance or violation
of law as provided in paragraph 6.
(d) hereof. Seller will at its own
expense, if so requested by Buyer, defend all claims, proceeding or
suits against Buyer, its officers, directors, successors, assigns,
employees, customers and users of its products, in which any of the
aforesaid claims are alleged, provided Seller is duly notified of
such claims, proceedings or suits. If, in any such suit, said goods
are held to constitute an infringement of any patent, copyright,
trademark or trade secrets and use thereof is enjoined, Seller
will, at Buyer's election, either (i) procure for Buyer the right
to continue using the goods, (ii) replace the same with
non-infringing goods, or (iii) modify the same at Seller's sole
risk and expense so that it becomes noninfringing.
10. Intellectual Property.
Data,drawings, specifications or other technical information
furnished directly or indirectly, in writing or otherwise, to
Seller by Buyer pursuant to a Purchase Order will in no event
become the property of Seller and will be used only in fulfilling
the obligations imposed by a Purchase Order and for no other
purpose and will not be duplicated or disclosed to others. Such
furnishing of data, drawings, specifications or other technical
information will not be construed as granting any rights
whatsoever, express or implied, under any patents of Buyer. All
patents, copyrights, trademarks, trade secrets or other
intellectual property resulting from work under a Purchase Order
will bethe sole property of Buyer.
11. Price.
Seller will give Buyer the benefit of any price reductions
available or in effect at the actual time of shipment.
12. Changes.
Buyer reserves the right at any time to make changes in the
following:
(a) specifications, drawings and
data incorporated in this order where the goods to be furnished are
to be specially manufactured for Buyer;
(b) methods of shipment or packing;
or
(c) place or time of inspection,
delivery or acceptance.
If any such change causes an increase or decrease in the cost of
or the time required for performance of a Purchase Order, an
equitable adjustment will be made in the purchase price or delivery
schedule, or both. If Buyer and Seller cannot agree to such price
or time adjustment within ten (10) business days (or such other
time as may then be agreeable to both parties), of Seller's receipt
of Buyer's request for a change, either party may terminate the
applicable Purchase Order upon five (5) business days prior notice
to the other. Any changes to such Purchase Order, if agreeable to
Buyer, whether initiated by Seller or Buyer, will be denominated as
a "revision" to a Purchase Order. Only Buyer will issue revisions
and, if issued, will be numbered serially, and each such revision
will be further subject to the Terms and Conditions.
13. Termination.
Buyer may at any time terminate a Purchase Order, in whole or in
part, upon one business day's prior written notice to Seller. If a
Purchase Order is terminated by Buyer for any reason other than for
breach by Seller, Seller must notify Buyer of any claim resulting
from Buyer's termination within ninety (90) days of the effective
date of termination. Such claim of Seller will be settled on basis
of the reasonable costs Seller has incurred in the performance of a
Purchase Order prior to receipt of Buyer's notice of
termination.
14. Waiver.
Buyer may waive performance of any condition and treat it as a
warranty, but waiver by Buyer of any conditions with reference to
any shipment will not be construed as a waiver of that condition
for subsequent shipments. All rights and remedies of Buyer stated
in the Terms and Conditions and/or in a Purchase Order are
non-exclusive and in addition to other rights and remedies provided
by law.
15. Amendment.
A Purchase Order and the Terms and Conditions are binding
contracts and cannot be modified in any respect, except upon
written agreement signed by both Seller and Buyer.
16. Entire Agreement.
A Purchase Order and the Terms and Conditions constitute the
entire agreement between the parties with respect to the subject
matter hereof and supercede and replace all prior agreements,
understandings and representations, whether written or
oral.
17. Governing Law.
Purchase Orders and the Terms and Conditions will be construed
in accordance with the laws of the Province of Ontario and the
federal laws of Canada applicable therein.
18. Severability.
If any provision of a Purchase Order or the Terms and Conditions
is held invalid or unenforceable to any extent, the remainder of a
Purchase Order and the Terms and Conditions will not be affected
thereby and will be enforced to the greatest extent permitted by
law.
19. Relationship of the Parties.
The relationship of the parties is solely that of buyer and
seller and nothing contained herein will be construed as creating
any agency, partnership, joint venture or employment
relationship.
20. Assignment.
Neither party may assign a Purchase Order or the Terms and
Conditions in whole or in part without the prior written consent of
the other, which consent will not be unreasonably withheld.
21. Force Majeure.
Performance by either party under a Purchase Order or the Terms
and Conditions will be excused in the event and for the period of
time that such party is unable to perform its obligations because
of strikes or other labour difficulties, labour shortage, fire,
flood, war, breakdowns, delays in or lack of transportation,
governmental priorities or allocation, or any other cause beyond
the reasonable control of such party.
22. Notices.
Notices will be sent by fax or other electronic form, or a
nationally recognized overnight courier service to the addresses
specified on the face of a Purchase Order and will be effective on
the same day with respect to notice by fax or other electric form
and one day after dispatch with respect to notice by overnight
courier