Cammda Corporation Terms and Conditions of Purchase
1. GENERAL: A Cammda Corporation (“CC”) purchase order (“PO”) constitutes CC’s offer to purchase the products and/or services described thereon (collectively, “Products”) from supplier of such Products (“Seller”) in accordance with (1) the following terms and conditions and any additional terms and conditions printed on the face of the PO that do not conflict with such following terms (collectively, “CC Terms”) and ii)any administrative information contained in Seller’s order acknowledgement, acceptance or any other Seller document (collectively “Acceptance Documents”) such as product identifier, product quantity, ship date and other similar information (collectively (i) and (ii) are this “Agreement”). All other terms and conditions which are contained on Seller’s Acceptance Documents are hereby expressly rejected and superseded by CC Terms, and failure by CC to object to any provision in Seller’s Acceptance Documents shall not be deemed acceptance thereof, nor a waiver of CC Terms. Seller shall be deemed to accept this offer and the CC Terms upon the earlier of (i) acceptance or acknowledgement of the PO whether orally, in writing or otherwise or (ii) commencement of performance of Seller’s obligations under the PO. CC Terms may only be excluded or amended by express written agreement signed by a duly authorized representative of CC.
2. PRICES: All prices shown on the face of the PO are FCA (seller’s factory) (incoterms, 2000) unless otherwise specified on the face of the PO, and are the maximum prices to be charges for the Products. Due dates for payment of invoices shall be computed from the date of the acceptance of the Products by CC. Title of the Products shall pass to CC upon shipping and, notwithstanding any term to the contrary herein, risk of loss in and damage to the Products shall pass to CC upon CC acceptance of the products. Published price lists require 60 days written notice to CC of any price increases.
3. SHIPPING: unless instructed otherwise, Seller shall (i) ship the material covered by the PO complete; (i) ship in accordance with the instructions appearing on the face of the PO; (ii) place the PO number on all packaging and shipping documents. Seller shall provide adequate protective packing at no additional charge and shall bear full responsibility for damage due to improper packing or shipping of the Products. The parties agree that time is of the essence in this Agreement.
4. INSPECTION: CC shall have a reasonable time after delivery to inspect and accept the Products. Where CC discovers defective or non-conforming product, CC may at its option and without prejudice to any other rights or remedies it may have hereunder or a law. (a) at Seller’s expense and at CC’s option, return such Products for refund, credit repair or replacement or (b) obtain a price reduction. If Seller delivers a quantity of Products greater then that specified in the PO, CC may reject all or part of the excess quantity or accept all or part of such quantity. Any excess quantity of Product accepted by CC shall be subject to the terms and conditions of this Agreement. If Seller delivers a quantity of Products less than specified herein, CC may cancel the PO in respect of the undelivered quantity without any liability to the Seller whatsoever. Supplier will maintain records created and/or retained as method of controlling of parts and verification of parts quality.
5. WARRANTY: Seller warrants to CC and its customers that the Products will be new, merchantable, of satisfactory quality, free from defects in design, material and workmanship and, where applicable, will confirm and perform in accordance with specifications, drawings and samples furnished or accepted by CC. All suppliers MUST inform CC of any instances of product non conformity. If Products contain manufacturers’ warranties, seller hereby assigns such warranties to CC and its customers and upon request shall provide details of such warranties to CC and its customers. Products failing to comply with applicable warranties will be, at CC’c option, (i) returned for a full refund or credit of amounts paid by CC for the defective Products, (ii) replaced or (iv) reperformed by Seller, at no cost to CC or its customers and with shipping and transportation costs and risk of loss or damage in transportation by Seller. Repaired and replaced Products shall be warranted as set forth in this clause. The above warranties, together with the Seller’s service warranties and guarantees, if any, survive inspection, test, and acceptance of payment for the Products and enure to CC, its customers and their respective successors and assigns.
6. LATE DELIVERY: Seller shall notify CC as soon as it becomes aware that it can not meet the delivery date specified on the face of the PO and shall propose a new delivery date. In the event of such delays, Seller shall at no additional cost to CC, employ accelerated measures such as material expediting fees, premium transportation costs or labour overtime to ensure the Products are delivered on or before the revised delivery date. In the event a delay in delivery of the new delivery date proposed by the Seller is not acceptable to CC, in additional to any other rights and remedies that may be available to it at law, CC may cancel the PO without any liability whatsoever to Seller.
7. RIGHT OF ENTRY: CC may, with two (2) DAYS PRIOR NOTICE TO seller, enter the premises of the Seller during Seller’s normal business hours to perform an inspection or quality review with respect to performance of the work pursuant to a PO.
8. CANCELLATION: CC may, at any time cancel, terminate, suspend performance of, or issue a hold on, elect to suspend (collectively “Cancellation”), the PO in whole or in part, without Seller’s consent, and applicable. CC agrees to negotiate in good faith a reasonable compensation amount. Notwithstanding the foregoing, where CC provides Seller with notice of Cancellation of a PO at least thirty (30) days prior to the scheduled delivery date. CC shall have no liability or obligations to Seller whatsoever.
9. CHOICE OF LAW AND COMPETENT COURT: The construction, interpretation and performance of this Agreement are governed by the applicable laws of the Province of Ontario and Canada without regard to conflicts of laws principles. The parties expressly exclude application of the United Nations Convention on Contracts for the International Sale of Goods. Any and all disputes between CC and the Seller that ensue from the contract between CC and the Seller will be submitted to a competent court of the Province of Ontario, without prejudice to CC’c right to submit a dispute to the court that would be competent absent this clause.
10. INDEMNITY: Seller agrees to indemnify and hold harmless CC, its affiliates and customers and their respective directors, officers, employees, agents, subcontractors and other representatives (for purposes of this Section 10, collectively “CC”) from any and all loss, damage, liability, cost (including reasonable solicitors’ fees), penalty or any other expense of whatever nature (collectively “Claims”) arising out of any act or omission of Seller (including negligence) directly or indirectly relating to the PO, the use or sale of the Product, whether alone or in combination, or work performed pursuant to the PO. The foregoing includes without limitation any claims relating to allegations, actions or proceedings for breach of contract, in tort (including negligence), intellectual property infringement, any statutory, regulatory or other legal claims for bodily injury (including death) and damage to property. Seller agrees to furnish, upon request by CC, evidence of comprehensive general liability insurance with minimum limits of USD1,000,000. In the vent of material change or cancellation of Seller’s insurance coverage, Seller shall ensure CC is given thirty (30) days prior written notice by either Seller or Seller’s insurance company.
11. CONFIDENTIAL INFORMATION: Seller acknowledges that certain information provided by CC in connection with the Po is confidential in nature. Confidential information means any business, marketing, technical, scientific, financial or other information, specifications, designs, plans, drawings, software, prototypes or process techniques of CC, an affiliate or other third party, which at the time of disclosure, is reasonably understood to be confidential in nature including the identity of the parties and the fact that the parties are in contact with each other, all related to the PO (collectively, “Confidential Information”). Seller shall hold confidential information in confidence and shall not disclose Confidential Information to third parties. Confidential Information does not include information that (a) is or becomes publicly available through no fault of the Seller or (b) is lawfully disclosed to the Seller by a third party who is not under any obligations of confidence; or (c) Seller can establish was known to the Seller prior to the date of disclosure by CC, or (d) is required by law to be disclosed; or (e) Seller can establish was developed independently by the Seller without the use of CC’s Confidential Information. Seller may only use Confidential Information for the purpose of fulfilling its obligations under the PO. Seller shall, upon written request by CC, promptly return and/or destroy and certify as destroyed all Confidential Information in its possession or control, as well as all material which incorporates any Confidential Information. Seller shall not disclose, without written consent of CC any Confidential Information to any third party other that it’s employees, contractors or other third parties under similar obligations of confidence who have to know such information. Seller shall assume full responsibility and shall indemnify and hold CC harmless for the unauthorized disclosure pr use of any Confidential Information by its employees, contractors or any other third party to whom Seller is authorized to disclose Information pursuant to this paragraph. All obligations of confidentiality and non-disclosure set forth in the PO survive, without limitation, the expiration or earlier termination of the PO. Where the parties have entered into a separate non-disclosure agreement which covers the subject matter of the PO, that non-disclosure agreement, to the extent applicable, shall supersede this Section 11.
12.LIABILITY IN NO EVENT SHALL CC OR ITS AFFILIATES, THEIR DIRECTORS, OFFICERS, EMPLYEES, AGENTS, SUBCONTRACTORS OR OTHER REPRESENTATIVES BE LIABLE TO SELLER FOR SPECIAL CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR INDIRECT COSTS, EXPENSES OR DAMAGES INCLUDING WITHOUT LIMITATION LITIGATION COSTS, THE LOSS OF PRODUCTION OR PROFIT ARISING FROM ANY CAUSE WHATSOEVER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES IS ALLEGED TO ARISE FROM NEGLIGENT ACTS, OMISSIONS OR CONDUCT OF CC OR ITS AFFILIATES, TJHEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOOYEES, AGENTS, SUBCONTRACTORS OR OTHER REPRENTATIVES, IN NO EVENT SHALL CC’S LIABLILTY TO SELLER UNDER THIS AGREEMENT EXCEED AMOUNTS ACTUALLY PAID TO SELLER FOR THE PRODUCTS.
13. MISCELLANEOUS: Any delay by CC in the exercise of any right or remedy provided herein shall in no event be deemed to be a waiver of such right or remedy. To be valid, any waiver by CC must be made in writing expressly referencing the PO. A valid waiver of any right or remedy shall in no event deemed to (i) constitute a waiver of such right or remedy arising in the future or (ii) operate as a waive of any other right or remedy. CC may assign its rights and obligations under this Agreement without requiring any notice to or consent from Seller. Seller may not assign or transfer any right or obligations hereunder without the prior written consent of CC. Seller shall not make any changes to the specifications, manufacturing process or manufacturing site for the Products and shall not subcontract any of its responsibilities or obligations, in whole, under this PO, without CC’s prior written consent. Breach of this provision shall entitle CC to immediately terminate the PO without any notice or liability to Seller whatsoever. A copy, facsimile or electric version of this document shall have the same force and effect as the original document.
14. INTELLECTUAL PROPERTY: In exchange for the consideration provided to Seller hereunder, CC shall (i) have free title to and all ownership interest in the Products delivered (except for software where CC is granted license). (ii) own all intellectual property rights in any custom specification and custom reports created as result of work performed under the PO and delivered to CC, and (iii) own the copyright in any original works custom fixed in any tangible medium of expression created as a result of work performed under the PO. Seller agrees to execute any assignment, conveyance or any other assurance necessary to effectuate this section.
15. TRADE-MARKS AND LOGOS: Seller shall remove or obliterate any identification prior to any use or disposition of any material rejected or not purchased by CC. “Identification” means any semblance of any trade name, trademark, service mark, insignia symbol, logo, or any other designation or drawing of CC or its affiliates.
16. NO PUBLICITY: Seller shall not use the CC name of the name of any of its affiliated in any public statement or publicized the fact that the parties are doing business without prior written consent of CC.
17. All products and/or services must meet CC’s QMS quality standards.