STANDARD PURCHASE TERMS AND CONDITIONS
1. CONTRACT: These Standard Terms and Conditions, and the written purchase order that accompanies, attaches, or incorporates them (the “Purchase Order” and collectively, the “Contract”), constitute the terms of an offer by Macrodyne and the sole and exclusive terms that Macrodyne agrees to be bound. This offer expressly limits acceptance to the terms of the offer, and Macrodyne hereby objects to any different or additional terms contained in any response to this offer that does not exactly match the terms of this offer. In addition to the other terms of this offer, this offer expressly includes all implied warranties and all of the buyer’s remedies set forth in Canadian and provincial legislation relating to the sale of goods or that are otherwise applicable. This Contract will become legally enforceable on the earlier of delivery of a signed acknowledgment, commencement of performance, or shipment of all or any portion of the Goods covered under this Contract, by Seller. Except as otherwise expressly stated in the Purchase Order, Macrodyne will have no obligation to purchase any specific quantity of Goods from Seller and Macrodyne will be entitled, in its sole discretion, to purchase the same or similar Goods from other suppliers.
2. WARRANTIES: The seller who will supply the goods, materials and any associated services (“Goods”) pursuant to the terms of this Contract (“Seller”) warrants that all Goods: (i) will be merchantable and free from defects in materials, design, and workmanship (whether or not approved by Macrodyne), for the longer of two years or the life expectancy of the Goods from the date of tender of delivery of the Goods; (ii) will conform to all applicable descriptions, specifications, drawings, plans, instructions, data, samples, and models, including those provided by the Seller after contract formation; (iii) will be fit for the particular purpose(s) for which the Goods are required, and Seller acknowledges that Macrodyne is relying on the Seller’s skill or judgment to furnish suitable Goods; (iv) will be composed of all new components; (v) will be free and clear from all security interests and other encumbrances, any actual or claimed intellectual property infringement or other colorable claims; and (vi) will be manufactured and sold in compliance with all applicable federal, provincial and foreign laws, regulations or orders, and trade standards applicable to the Goods. Such warranties explicitly extend to future performance of the Goods. Seller assigns to Macrodyne all warranties from third-parties, including sub-contractors or manufacturers’ warranties. Seller warrants that all services provided in connection with this Contract will be performed in a professional and competent manner and in accordance with the highest standards of the industry. Such warranties are in addition to any warranties implied by law or expressly made by Seller other than hereunder. In addition to remedies otherwise available to Macrodyne, if Seller is in breach of the warranties set out in this paragraph, Seller will, at the election of Macrodyne and upon notice from Macrodyne, and at Seller’s sole cost (including any relevant transportation and labor costs), either redesign, repair or replace (including, if applicable, reinstall) the Goods or re-perform the related services to Macrodyne’s satisfaction, prior to the expiry of the time set forth in the notice. If Seller fails to make the necessary redesign, repair or replacement within the period specified, Macrodyne may perform or cause to be performed such redesign, repair or replacement at Seller’s risk and cost and any costs and expenses incurred by Macrodyne will be recoverable from Seller as a debt due and payable.
3. PRICE: Seller warrants that the prices listed in this Contract are complete and that no additional charge of any type will be added without Macrodyne’s prior express written consent, including but not limited to, charges for rigging & loading services, shipping, packaging, labeling, custom duties, taxes, storage, insurance, boxing and crating. If during the term of this Contract, Seller sells goods that are the same or are substantially similar to the Goods to another customer at prices below those stated in the Contract, Seller will immediately extend such lower prices to Macrodyne.
4. SHIPMENT: Seller’s shipment of Goods will be D.D.P. (Incoterm 2010), place of destination listed on Macrodyne’s Purchase Order form, provided that Seller is responsible for all customs duties for importation of Goods and formalities as set forth in Section 14. All Goods must be delivered in strict conformity with the dates listed on Macrodyne’s Purchase Order. Time for delivery is of the essence.
5. REJECTION AND REVOCATION OF ACCEPTANCE: Macrodyne has the right, before payment or acceptance of the Goods, to inspect the Goods at any reasonable place and time and in any reasonable manner. Neither the inspection, testing, payment or auditing of any Goods, nor the failure to do so, before delivery to Macrodyne constitute acceptance of any Goods or relieve Seller from exclusive responsibility for furnishing Goods in strict conformance with Macrodyne’s specifications. If, in Macrodyne’s judgment, the Goods or the tender of delivery fail in any respect to conform to the Contract, Macrodyne may (a) reject the whole; (b) accept the whole; or (c) accept any commercial unit or units and reject the rest. Seller agrees that any notification of nonconformity by Macrodyne, in whatever form, suffices to inform the Seller that the transaction is claimed to involve a breach, and that Seller will be responsible for any losses resulting from the nonconformity. In an appropriate case, Macrodyne may revoke its acceptance of Goods. Seller agrees that Macrodyne’s acceptance of the Goods is reasonably induced by the Seller’s assurances of the Goods’ quality and conformity to the terms of the Contract.
6. TERMS OF PAYMENT: Seller will promptly submit to Macrodyne correct and complete invoices, supporting documentation, and other information reasonably required by Macrodyne in connection with the delivery of the Goods. Macrodyne may withhold payment until such documents are received and verified. Delay in receiving valid invoices or Goods will be considered good cause for withholding payment without losing cash discount privileges. If the production or delivery of Goods covered by this Contract may give rise to security interests, mechanics’ liens, prior claims, hypothecs or other liens, payment will not be due and the cash discount period will not commence until Seller has obtained and delivered to Macrodyne a complete release and discharge of all security interests or other liens or a receipt/discharge covering all labor and materials for which such security interests and other liens could be filed or a bond satisfactory to Macrodyne indemnifying it against such security interests or other liens. Macrodyne will have the right, at any time, to set off and apply against any monetary obligations that Macrodyne owes to Seller or any of its parents, subsidiaries or affiliates, any obligations that Seller, or any of its parents, subsidiaries or affiliates, may owe to Macrodyne.
7. TAXES: Seller is responsible for and will pay all applicable taxes of Canada, its provinces or any foreign government including political subdivisions of any of them, which are based on or measured by net income, gross income, capital or gross receipts including any withholding taxes levied against Seller for the privilege of doing business in a jurisdiction. If Seller is required by law to collect all taxes including, but without limiting the general nature of the foregoing, goods and services tax (GST) and harmonized sales tax (HST) from Macrodyne on behalf of any Canadian, provincial or other taxing jurisdiction including, but without limiting the general nature of the foregoing, Canada Revenue Agency, Seller will provide to Macrodyne invoices which separately state and clearly indicate the amount of tax to be collected and Macrodyne will remit any such tax to Seller. Seller will have the sole responsibility of complying with all applicable Canadian, provincial and other laws regarding tax including, but without limiting the general nature of the foregoing, the Excise Tax Act, R.S., 1985, c. E-15. In all cases, Seller will state on every invoice the taxing jurisdiction (e.g. country, state/province and municipality) in which Goods were provided. If applicable, Seller will accept a properly executed exemption or direct pay certificate from Macrodyne in lieu of payment for any sales and use tax. The determination of whether an exemption certificate will be submitted to Seller in lieu of payment for any sales and use tax will be made by Macrodyne on a location by location basis for each of the facilities. With the exception of the taxes described above, all other taxes imposed upon Seller, on the price or compensation under this Contract, or on the Goods provided hereunder, will be the sole responsibility of Seller.
8. CONFIDENTIALITY: During the term of this Contract and for five years after its cancellation, termination or expiration, Seller will not make use of Macrodyne’s Confidential Information (as defined herein) for purposes other than the fulfillment of the obligations under this Contract, or disclose to any person or entity, other than those of its employees who have a need to know, any Confidential Information, whether written or oral, which the Seller obtains from Macrodyne or otherwise discovers in the performance of this Contract. “Confidential Information,” as used in this Contract, will mean all information relating to Macrodyne’s business which is not generally available to the public. Confidential Information includes information that Seller possesses that predates this Contract. The foregoing provisions of this paragraph will not apply to any information that is: (a) rightfully known to Seller prior to disclosure by Macrodyne; or (b) rightfully obtained by Seller from any third party; or (c) made available by Macrodyne to the public without restrictions; or (d) disclosed by Seller with prior written permission of Macrodyne; or (e) independently developed or learned by Seller through legitimate means; or (f) disclosed by Macrodyne to a third party without a duty of confidentiality on the third party; or (g) disclosed pursuant to any applicable laws, regulations, or order of a court of competent jurisdiction. Seller will provide reasonable prior written notice to Macrodyne if it is required to disclose any of Macrodyne’s Confidential Information under operation of law. Macrodyne expressly reserves the right to disclose any of the terms of this Contract, including but not limited to pricing, to third parties.
9. INTELLECTUAL PROPERTY: If Seller makes modifications to the specifications or any process related to the Goods specifically for Macrodyne at Macrodyne’s request (“Custom Work”), Macrodyne owns the Custom Work. Seller hereby assigns to Macrodyne all rights, title and interest in the Custom Work and represents and warrants that: (a) the Custom Work was developed through Seller’s sole and original efforts and does not infringe the intellectual property or privacy rights of any person, and (b) Seller has no other arrangement that would interfere with assigning all of its interest in the Custom Work to Macrodyne. If Seller furnishes a pre-existing design for the Goods, then Seller will continue to own all intellectual property rights relating to such design and Seller hereby grants Macrodyne a permanent, paid-up, nonexclusive, worldwide, royalty-free license, with a right to sublicense to others, to make, have made, use and have used, such intellectual property. Seller may not use Macrodyne’s name and/or logo in any manner other than as may be identified in this Contract without first obtaining written permission from Macrodyne.
10. INDEMNIFICATION: Seller will indemnify, defend, and hold harmless Macrodyne, its directors, officers, employees, agents, representatives, successors, assigns, and customers (“Indemnitees”) from and against all liabilities, expenses, suits, claims, actions, demands, judgments, settlements, costs, losses, fines and penalties, including but not limited to attorney fees, costs and expenses of litigation (“Claims”), that arise out of or are related to: (i) the Goods, liens on Goods, defects in the Goods or the manufacture, delivery, use or misuse of the Goods; (ii) the performance of this Contract; or (iii) breach of any of the provisions of this Contract, whether Claims are caused in whole or in part by any negligence or any act or omission of Seller, its directors, officers, employees, subcontractors, agents, representatives, successors, or assigns, and regardless of whether or not such negligence or acts or omissions were caused in part by the Indemnitees. Seller hereby expressly agrees to waive any provision of any workers’ compensation act, disability or other employee benefits laws, or any similar laws granting Seller rights and immunities as an employer, and expressly agrees to indemnify, defend, and hold harmless the Indemnitees against all Claims brought by the workers, servants, agents, or employees of Seller encompassed by this Indemnification paragraph 10.
11. INSURANCE: Seller agrees: (i) to maintain in full force and effect casualty, property, and other lines of insurance of the types, on the terms and in the amounts commensurate with its business and risks associated therewith (“Insurance”) and to comply with applicable workers compensation insurance laws regarding insurance or qualification as a self-insurer; (ii) to the extent permitted by law, to waive rights of subrogation and contribution against Macrodyne, including Macrodyne as an additional insured, under policies of Insurance; (iii) to ensure that Macrodyne is made an additional insured on policies of Insurance under terms of coverage customary to the risk of loss to which Macrodyne is exposed and that the limits of Insurance to which Macrodyne is entitled as an additional insured are no less than the amount of total limits of Insurance applicable to Seller under all of the policies of Insurance; (iv) to ensure that the policies of Insurance contain a severability of interest clause in favor of Macrodyne and are stated to be specifically primary to any of Macrodyne’s insurance policies, which policies will be, in all respects, excess to Seller’s policies of Insurance; (v) to be solely responsible for any deductibles, self-insured retentions, or other form of self-insurance under the policies of Insurance; (vi) upon Macrodyne’s request, to timely provide written certification, reasonably acceptable to Macrodyne, certifying the material terms of the policies of Insurance.
12. FORCE MAJEURE: Any delay or failure of either party in the performance of its required obligations hereunder shall be excused if and to the extent caused by fire, flood, unusually severe weather, explosion, riot, war, sabotage, or other similar causes as long as: 1) such events are beyond the party’s reasonable efforts to prevent, avoid or mitigate; 2) said party uses every reasonable effort to mitigate; and 3) prompt written notice of such delay or suspension is given by such affected party to the other. If Seller is delayed in performance of its obligations due to a force majeure event, upon Macrodyne’s receipt of said notice, if necessary, the time for performing shall be extended for a period of time reasonably necessary to overcome the effect of such delay. If any such force majeure condition occurs, Seller shall give immediate notice to Macrodyne and Macrodyne may elect to (1) terminate the affected Purchase Order(s) or any part thereof, or (2) suspend the affected Purchase Order(s), or any part thereof, for the duration of the force majeure condition and resume performance under such Purchase Order(s) once the force majeure condition ceases.
13. IMPORT/EXPORT COMPLIANCE: Seller warrants that sales made hereunder are or will be made at not less than fair value under the Special Import Measures Act (R.S.C. (1985), c. S-15). Macrodyne will not be a party to the importation of the Goods, the transaction(s) represented by the Contract will be consummated subsequent to importation, and Seller will neither cause nor permit Macrodyne’s name to be shown as “Importer of Record” on any customs declaration. Transferable credits or benefits associated with the Goods, including trade credits, export credits, or rights to the refund of duties, taxes, or fees, belong to Macrodyne unless otherwise prohibited by applicable law. Seller will provide Macrodyne with all information and records relating to the Goods necessary for Macrodyne to (i) receive these benefits, credits, and rights, (ii) fulfill any customs obligations, origin marking or labeling requirements, and certification or local content reporting requirements, (iii) claim preferential duty treatment under applicable trade preference regimes, and (iv) participate in any duty deferral or free trade zone programs of the country of import. Seller will be responsible for strict compliance with all legal, regulatory and administrative requirements associated with any importation or exportation of Goods, including obtaining any required licenses or approvals and, unless otherwise agreed between the parties elsewhere in this Contract, the payment of all associated duties, taxes and fees.
14. CUSTOMS, DUTY AND EXCISE TAX REMISSION: Seller will cooperate with Macrodyne in seeking any customs, duty and excise tax remission available to Macrodyne in connection with export by Macrodyne of any Goods imported by Seller and provided to Macrodyne under this Contract, or incorporating, or manufactured by Macrodyne from, such Goods. Without limitation, Seller will (i) provide all information with respect to such imported Goods necessary to complete any such customs, duty and excise tax remission claims to be filed by Macrodyne, including Canada Revenue Agency entry numbers, dates of entry, quantities and description of goods, customs values, and rates and amounts of customs duties and excise tax paid by Seller, and (ii) execute applicable certificates of delivery and other documents as necessary in connection with Macrodyne’s remission claims.
15. INDEPENDENT CONTRACTOR / SUBCONTRACTING: Seller is and will remain an independent contractor of Macrodyne. No employee, agent, or representative of Seller or its subcontractors will be deemed to be an employee of Macrodyne. Seller must obtain Macrodyne’s written permission before subcontracting any portion of this Contract. Except for the insurance requirements in this Contract, all subcontracts and orders thereunder will require that the subcontractor or materialman be bound by and subject to the terms and conditions of the Contract. No subcontract or order will relieve Seller from its obligations to Macrodyne, including, but not limited to Seller’s insurance and indemnification obligations. No subcontract or order will bind Macrodyne.
16. SAFETY: Seller will provide all safeguards, and take all precautions, in connection with the production and delivery of the Goods sold to prevent the occurrence of any accident, injury, death, loss, or damage to persons or property and Seller will be solely responsible for any such occurrences. Seller warrants that all Goods delivered hereunder will be in compliance with all Macrodyne requirements concerning safety, performance and otherwise, including, without limitation, any work or services related thereto performed on premises controlled by Macrodyne. Seller agrees to immediately notify Macrodyne of any actual or possible safety problems with the Goods delivered hereunder.
17. CYBER SECURITY: Supplier must: (a) maintain reasonable, risk-based cybersecurity programs, supported by appropriate technical and operational measures including policies and procedures, to protect the confidentiality, integrity, and availability of Confidential Information, prevent disruption of the supply of goods, and respond in a timely and effective manner to any cybersecurity incident that may compromise any Confidential Information or disrupt supply of goods; (b) promptly, but no less than 48 hours subsequent to the Supplier’s first knowledge of the incident, notify Macrodyne of any attempted or actual unauthorized possession, access, use, or knowledge of Macrodyne’s Confidential Information by any person or entity that may become known or suspected by Supplier as well as any potential disruption to supply; (c) promptly furnish full details of the attempted or actual unauthorized possession, access, use, or knowledge; (d) assist Macrodyne in investigating or preventing the recurrence of any attempted or actual unauthorized possession, access, use, or knowledge of Confidential Information; (e) adopt other reasonable cybersecurity measures identified by Macrodyne; and (f) Supplier must maintain a reasonable, risk-based program, supported by appropriate technical and operational measures including policies and procedures, to ensure the cybersecurity of any Item that includes software, hardware, or other electrical components. Supplier’s product cybersecurity program must provide for security by design, vulnerability management, governance, and any other elements identified by Macrodyne in a manner consistent with industry best practices.
18. PUBLICITY & USE OF MACRODYNE NAME: Seller will not, without Macrodyne’s prior written consent, in any manner publish the fact that Seller has furnished or contracted to furnish Macrodyne goods and/or services, or use the name or trademarks of Macrodyne or its affiliates, their products, or any of their associated companies in Seller’s advertising or other publications. Seller will not place its, or any third party’s trademark or other designation on the part if the part bears a Macrodyne trademark or an identifying mark specified by Macrodyne, or if the part is specific or proprietary to Macrodyne’s design (“Marked Parts”). Seller will sell Marked Parts, and similar goods, only to Macrodyne and will not sell Marked Parts or similar goods to third parties without Macrodyne’s prior written consent.
19. CHANGES: Macrodyne may, at any time, make written changes to the general scope of this Contract, and Seller will continue performance of this Contract as so changed. If any such change causes an increase or decrease in the cost of, or time required for, the performance of Seller’s obligations under this Contract, an equitable adjustment will be made to the price or delivery schedule, or both, and this Contract will be modified in writing accordingly.
20. DESIGN, MATERIAL OR PROCESS CHANGES: If Seller or any supplier of Seller makes or intends to make any change to the design, materials or manufacturing processes for the goods, including raw materials or parts used in the manufacture of the goods, such changes including, but not limited to, changes to the production process, manufacturing equipment, manufacturing location, raw materials, the identity of the sub-supplier of raw materials, or between a manual and automated process, such change shall be a Material Change. Seller must promptly notify Macrodyne in writing of any Material Change. In the event Macrodyne determines, using its good faith judgment, that a Material Change renders the goods incompatible for the use for which Macrodyne is purchasing the goods, Macrodyne shall provide written notice of such incompatibility to Seller within sixty (60) days after receipt of notice of such Material Change. Seller shall only make or allow a supplier of Seller to make a Material Change necessitating the provision of a Conforming Sample after Macrodyne’s prior written approval.
21. TERMINATION AND CANCELLATION: Macrodyne may terminate this Contract, in whole or in part, at any time for convenience by giving written notice to Seller. After receiving written notice of termination, Seller will immediately cease production and delivery of all Goods indicated in the notice of termination and take all actions to mitigate any liabilities incurred as a result of the termination. Unless such termination is due to Seller’s breach or failure of Seller to provide adequate assurance of performance, Macrodyne will pay Seller, on a pro rata basis, for Goods delivered as of the date of termination. Macrodyne will have the right to cancel this Contract if, in its judgment, Seller has breached any of its terms, or if, in Macrodyne’s judgment, the credit or ability of Seller to perform this Contract becomes impaired. In that case, Macrodyne will have the right to all remedies available to it under the law.
22. COMPLETE AGREEMENT: This Contract is intended to be the complete, exclusive, and fully integrated statement of the parties’ agreement regarding the Goods. As such, it is the sole repository of the parties’ agreement, and they are not bound by any other agreements, promises, or representations of whatsoever kind or nature. The parties also intend that this complete, exclusive and fully integrated statement of their agreement may not be supplemented or explained (interpreted) by any evidence of trade usage or course of dealing. This Contract may not be modified except by a writing signed by the parties.
23. ANTI-WAIVER: No term or provision of this Contract will be deemed waived, and no breach excused, unless such waiver or consent is in writing and signed by the party claimed to have provided such waiver or consent. No waiver of any right will constitute a waiver of any other right, whether of a similar nature or otherwise.
24. SURVIVAL: Notwithstanding the expiration, termination, or cancellation of this Contract, it is agreed that those rights and obligations which by their nature and context are intended to survive such expiration or termination will survive beyond such expiration, termination, or cancellation.
25. ASSIGNMENT: Neither this Contract, nor Seller’s rights and obligations hereunder, are assignable without the prior written consent of Macrodyne. No such consent or assignment will release Seller or alter Seller’s liability to perform its obligations under this Contract. Any attempted assignment without the prior written consent of Macrodyne will be null and void.
26. NO VIOLATION OF LAW: Seller agrees to comply with all pertinent federal, provincial, state, municipal and local laws, regulations, ordinances and codes of any governmental authority having jurisdiction. Seller warrants that the Goods delivered hereunder were produced at facilities complying with all applicable provisions of occupational safety and health legislation and related regulations. Seller further warrants that it will comply, where applicable, and without limitation, with all orders, standards, and regulations of pertinent governmental administrations.
27. CHOICE OF LAW AND CHOICE OF FORUM: Any and all claims or matters of dispute between the parties to this Contract arising from the Contract itself or arising from alleged extra-contractual facts or incidents, including, without limitation, fraud, misrepresentation, negligence or any other alleged tort or any breach of the Contract, will be resolved, governed by, construed, and enforced in accordance with the laws of the Province of Ontario, regardless of the legal theory upon which such matters are asserted. The application of the United Nations Convention on Contracts for the International Sale of Goods (“CISG”) is hereby expressly excluded. Any and all claims or matters of dispute referenced in this paragraph will be resolved in a court of competent jurisdiction in Toronto, which courts will have exclusive jurisdiction of all such disputes. Seller waives any and all objections that it might otherwise have as to personal jurisdiction or venue in such courts.
