Purchase Order Terms and Conditions

1. Acceptance

Vendor agrees to perform the services (“Services”) and/or provide the goods or Service deliverables (collectively referred to as “Goods”), described in any purchase order, in accordance with the applicable purchase order, scope of work and with these Terms and Conditions (collectively the “Agreement”). Upon acceptance of a purchase order, shipment of Goods or commencement of a Service, Vendor shall be bound by the provisions of this Agreement, including all provisions set forth on the face of any applicable purchase order, whether Vendor acknowledges or otherwise signs this Agreement or the purchase order, unless Vendor objects to such terms in writing prior to shipping Goods or commencing Services. The purchase order may not be transferred or assigned by the Vendor without the written consent of the Buyer.

This writing does not constitute a firm offer and may be revoked at any time prior to acceptance. This Agreement may not be added to, modified, superseded or otherwise altered, except by writing signed by an authorized representative of the Buyer. Any terms or conditions contained in any acknowledgment, invoice or other communication of Vendor, which are inconsistent with the terms and conditions herein, are hereby rejected. To the extent that this Agreement might be treated as an acceptance of Vendor’s prior offer, such acceptance is expressly made on condition of assent by Vendor to the terms hereof and shipment of the Goods or beginning performance of any Services by Vendor shall constitute such assent. Buyer hereby reserves the right to reschedule any delivery or cancel any purchase order issued at any time prior to shipment of the Goods or prior to commencement of any Services. Buyer shall not be subject to any charges or other fees as a result of such cancellation.

2. Payment

As full consideration for the performance of the Services, delivery of the Goods and the assignment of rights to Buyer as provided herein, Buyer shall pay Vendor (i) the amount agreed upon and specified in the applicable purchase order, or (ii) Vendor’s quoted price on date of shipment (for Goods), or the date Services were started (for Services), whichever is lower. Applicable taxes and other charges such as shipping costs, duties, customs, tariffs, imposts and government imposed surcharges shall be stated separately on Vendor’s invoice. Buyer shall have no obligation to pay the GST unless the GST amount and the Vendor’s GST registration number are set out separately on Vendor’s invoice. Payment is made when Buyer’s check is mailed. Payment shall not constitute acceptance. All personal property taxes assessable upon the Goods prior to receipt by Buyer of Goods conforming to the purchase order shall be borne by Vendor. Vendor shall invoice Buyer for all Goods delivered and all Services actually performed. Each invoice submitted by Vendor must be provided to Buyer within ninety (90) days of completion of the Services or delivery of Goods and must reference the applicable purchase order, and Buyer reserves the right to return all incorrect invoices. Unless otherwise specified on the face of a purchase order, Buyer shall pay the invoiced amount within sixty (60) days after receipt of a correct invoice. Buyer shall have the right at any time to set-off any amount owing from Vendor to the Buyer (or any of its associated or affiliated companies) against any amount due and owing to the Vendor (or any of its associated or affiliated companies including agents and representatives) with respect to this order or any subsequent order.

3. Delivery

Time is of the essence. Delivery of Goods shall be made pursuant to the schedule, via the carrier and to the place specified on the face of the applicable purchase order. Buyer reserves the right to return, shipping charges collect, all Goods received in advance of the delivery schedule. If no delivery schedule is specified, the order shall be filled promptly and delivery will be made by the most expeditious form of land transportation. If no method of shipment is specified in the purchase order, Vendor shall use the least expensive carrier. In the event Vendor fails to deliver the Goods within the time specified, Buyer may, at its option, decline to accept the Goods and terminate the Agreement or may demand its allocable fair share of Vendor’s available Goods and terminate the balance of the Agreement. Vendor shall package all items in suitable containers to permit safe transportation and handling. Each delivered container must be labeled and marked to identify contents without opening and all boxes and packages must contain packing sheets listing contents. Buyer’s purchase order number must appear on all shipping containers, packing sheets, delivery tickets and bills of lading.

4. Warranty

Vendor represents and warrants that all Services shall be completed in a professional, workmanlike manner, with the degree of skill and care that is required by current, good and sound professional procedures. Further, Vendor represents and warrants that the Services shall be completed in accordance with applicable specifications and shall be correct and appropriate for the purposes contemplated in this Agreement. Vendor represents and warrants that the performance of Services under this Agreement will not conflict with, or be prohibited in any way by, any other agreement or statutory restriction to which Vendor is bound. Vendor warrants that all Goods provided will be new and will not be used or refurbished. Vendor warrants that all Goods delivered shall be free from defects in materials and workmanship and shall conform to all applicable specifications for a period of fifteen (15) months from the date of delivery to Buyer or for the period provided in Vendor’s standard warranty covering the Goods, whichever is longer. Additionally, Goods purchased shall be subject to all written and oral express warranties made by Vendor’s agents, and to all warranties provided for by the laws of Ontario and Canada. All warranties shall be construed as conditions as well as warranties and shall not be exclusive. Vendor shall furnish to Buyer Vendor’s standard warranty and service guaranty applicable to the Goods. All warranties and Service guaranties shall run both to Buyer and to its customers. If Buyer identifies a warranty problem with the Goods during the warranty period, Buyer will promptly notify Vendor of such problems and will return the Goods to Vendor, at Vendor’s expense. Within five (5) business days of receipt of the returned Goods, Vendor shall, at Buyer’s option, either repair or replace such Goods, or credit Buyer’s account for the same. Replacement and repaired Goods shall be warranted for the remainder of the warranty period or six (6) months, whichever is longer.

5. Inspection

Buyer shall have a reasonable time after receipt of Goods or Service deliverables and before payment to inspect them for conformity hereto, and Goods received prior to inspection shall not be deemed accepted until Buyer has run an adequate test to determine whether the Goods conform to the specifications hereof. Use of a portion of the Goods for the purpose of testing shall not constitute an acceptance of the Goods. If Goods tendered do not wholly conform with the provisions hereof, Buyer shall have the right to reject such Goods. Nonconforming Goods will be returned to Vendor freight collect and risk of loss will pass to Vendor upon Buyer’s delivery to the common carrier.

6. Independent Contractor

Buyer is interested only in the results obtained under this Agreement; the manner and means of achieving the results are subject to Vendor’s sole control. Vendor is an independent contractor for all purposes, without express or implied authority to bind Buyer by contract or otherwise. Neither Vendor nor its employees, agents or subcontractors (“Vendor’s Assistants”) are agents or employees of Buyer, and therefore are not entitled to any employee benefits of Buyer, including but not limited to, any type of insurance. Vendor shall be responsible for all costs and expenses incident to performing its obligations under this Agreement and shall provide Vendor’s own supplies and equipment.

Vendor shall be solely responsible for maintaining and requiring Vendor’s Assistants to maintain 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 Vendor’s and Vendor’s Assistants’ trades or businesses, whichever affords greater coverage. Upon request, Vendor shall provide Buyer with certificates of insurance or evidence of coverage before commencing performance under this Agreement. Vendor shall provide adequate coverage for any Buyer property under the care, custody or control of Vendor or Vendor’s Assistants.

7. Indemnity

Vendor shall indemnify, hold harmless, and at Buyer’s request, defend Buyer, its officers, directors, customers, agents and employees, against all claims, liabilities, damages, losses and expenses, including legal fees and cost of suit arising out of or in any way connected with the Goods or Services provided under this Agreement, including, without limitation, (i) any claim based on the death or bodily injury to any person, destruction or damage to property, or contamination of the environment and any associated clean up costs, (ii) Vendor’s failing to satisfy local tax guidelines for an independent contractor, (iii) any claim based on the negligence, omissions or willful misconduct of Vendor or any Vendor’s Assistants, and (iv) any claim by a third party against Buyer alleging that the Goods or Services, the results of such Services, or any other products or processes provided under this Agreement, infringe a patent, copyright, trademark, trade secret or other proprietary right of a third party, whether such are provided alone or in combination with other products, software or processes. Vendor shall not settle any such suit or claim without Buyer’s prior written approval. Vendor agrees to pay or reimburse all costs that may be incurred by Buyer in enforcing this indemnity, including the fees associated with legal representation.

Should Buyer’s use, or use by its distributors, subcontractors or customers, of any Goods or Services purchased from Vendor be enjoined, be threatened by injunction, or be the subject of any legal proceeding, Vendor shall, at is sole cost and expense, either (a) substitute fully equivalent non-infringing Goods or Services; (b) modify the Goods or Services so that they no longer infringe but remain fully equivalent in functionality; (c) obtain for Buyer, its distributors, subcontractors or customers the right to continue using the Goods or Services; or (d) if none of the foregoing is possible, refund all amounts paid for the infringing Goods or Services.

8. Confidential Information

Vendor will acquire knowledge of Buyer Confidential Information (as defined below) in connection with its performance hereunder and agrees to keep such Buyer Confidential Information in confidence during and following termination or expiration of this Agreement. “Buyer Confidential Information” includes but is not limited to all information, whether written or oral, in any form, including without limitation, information relating to the 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 Vendor. In addition, Buyer Confidential Information means any third party’s proprietary or confidential information disclosed to Vendor in the course of providing Services or Goods to Buyer. Buyer Confidential Information does not include any information (i) which Vendor lawfully knew without restriction on disclosure before Buyer disclosed it to Vendor, (ii) which is now or becomes publicly known through no wrongful act or failure to act of Vendor, (iii) which Vendor developed independently without use of the Buyer Confidential Information, as evidenced by appropriate documentation, or (iv) which is hereafter lawfully furnished to Vendor by a third party as a matter of right and without restriction on disclosure. In addition, Vendor may disclose Confidential Information which is required to be disclosed pursuant to a requirement of a government agency or law so long as Vendor provides prompt notice to Buyer of such requirement prior to disclosure.

Vendor agrees not to copy, alter or directly or indirectly disclose any Buyer Confidential Information. Additionally, Vendor agrees to limit its internal distribution of Buyer Confidential Information to Vendor’s Assistants who have a need to know, and to take steps to ensure that the dissemination is so limited, including the execution by Vendor’s Assistants of nondisclosure agreements with provisions substantially similar to those set forth herein. In no event will Vendor 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 Confidential Information.

Vendor further agrees not to use the Buyer Confidential Information except in the course of performing hereunder and will not use such Buyer Confidential Information for its own benefit or for the benefit of any third party. The mingling of the Buyer Confidential Information with information of Vendor shall not affect the confidential nature or ownership of the same as stated hereunder. Vendor agrees not to design or manufacture any products which incorporate Buyer Confidential Information. All Buyer Confidential Information is and shall remain the property of Buyer. Upon Buyer’s written request or the termination of this Agreement, Vendor shall return, transfer or assign to Buyer all Buyer Confidential Information, including all Work Product, as defined herein, and all copies thereof.

9. Work Product

For purposes of this Agreement, “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 Vendor alone or with others which result from or relate to the Services performed hereunder. Standard Goods manufactured by Vendor 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. Vendor hereby agrees to irrevocably assign and transfer to Buyer and does hereby assign and transfer to Buyer all of its worldwide right, title and interest in and to the Work Product including all associated intellectual property rights. Buyer will have the sole right to determine the treatment of any Work Product, including the right to keep it as trade secret, execute and file patent applications on it, to use and disclose it without prior patent application, to file registrations for copyright or trademark in its own name or to follow any other procedure that Buyer deems appropriate. Vendor agrees: (a) to disclose promptly in writing to Buyer all Work Product in its possession; (b) to assist Buyer in every reasonable way, at Buyer’s expense, to secure, perfect, register, apply for, maintain, and defend for Buyer’s benefit all copyrights, patent rights, mask work rights, trade secret rights, and all other proprietary rights or statutory protections in and to the Work Product in Buyer’s name as it deems appropriate; and (c) to otherwise treat all Work Product as Buyer Confidential Information as described above. These obligations to disclose, assist, execute and keep confidential survive the expiration or termination of this Agreement. All tools and equipment supplied by Buyer to Vendor shall remain the sole property of Buyer.

Vendor will ensure that Vendor’s Assistants appropriately waive any and all claims and assign to Buyer any and all rights or any interests in any Work Product or original works created in connection with this Agreement. Vendor irrevocably agrees not to assert against Buyer or its direct or indirect customers, assignees or licensees any claim of any intellectual property rights of Vendor affecting the Work Product. Buyer will not have rights to any works conceived or reduced to practice by Vendor which were developed entirely on Vendor’s own time without using equipment, supplies, facilities or trade secret or Buyer Confidential Information, unless (i) such works relate to Buyer’s business, or Buyer’s actual or demonstrably anticipated research or development, or (ii) such works result from any Services performed by Vendor for Buyer.

10. Remedies

If Vendor breaches this Agreement, Buyer shall have all remedies available by law and at equity. For the purchase of Goods, Vendor’s sole remedy in the event of breach of this Agreement by Buyer shall be the right to recover damages in the amount equal to the difference between market price at the time of breach and the purchase price specified in the Agreement. No alternate method of measuring damages shall apply to this transaction.

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 its 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. In the event Buyer is so excused, either party may terminate the Agreement and Buyer shall at its expense and risk, return any Goods received to the place of shipment.

11. Final Agreement

This Agreement is the complete, final and exclusive statement of the terms of the agreement between the parties and supersedes any and all other prior and contemporaneous negotiations and agreements between them relating to the subject matter hereof. This Agreement may not be varied, modified, altered, or amended except in writing, including a purchase order or a change order issued by Buyer, signed by the parties. The terms and conditions of this Agreement shall prevail notwithstanding any variance with the terms and conditions of any acknowledgment or other document submitted by Vendor.

12. Governing Law

This Agreement shall be governed by the laws of Ontario.

13. Limited