As part of our desire to ensure open and honest dealings with our suppliers, this section outlines our normal terms and conditions. Please review the relevant documents below and if you have specific questions, feel free to contact us.

Apex Industries Inc.
Terms and Conditions

By accepting this Purchase Order the Vendor hereby agrees to all Apex Industries Inc. (Buyer) terms and conditions contained herein:

 

Clause 1 – ORDERS/CHANGE ORDERS

These Terms and Conditions are a part of each Order Buyer may issue to Vendor.  Each Order must contain a description of the Articles and identify the specifications,  drawings,  quantities,  prices,  delivery  schedule,  terms  and place of delivery.  EACH ORDER OR CHANGE TO AN ORDER MUST BE SIGNED (OR AUTHENTICATED IF THIS IS AN ELECTRONIC ORDER) BY Apex’s AUTHORIZED PROCUREMENT REPRESENTATIVE TO BE VALID.

Clause 2 – AGREEMENT/ACCEPTANCE/MODIFICATIONS

An Order is Buyer’s offer to Seller and acceptance is expressly limited to its terms without additions, deletions, or other modifications.    Seller’s commencement of performance, delivery of any Articles or acknowledgment of the Order or electronic signature will conclusively evidence such acceptance.    NO CHANGE OR MODIFICATION TO THE ORDER (INCLUDING ANY ADDITIONAL OR DIFFERENT TERMS IN SELLER’S ACCEPTANCE) WILL BE BINDING ON BUYER UNLESS SIGNED (OR AUTHENTICATED IF THIS IS AN ELECTRONIC ORDER) BY BUYER’S AUTHORIZED PROCUREMENT REPRESENTATIVE.

Clause 3 – CHANGES

(A)   Buyer  may  by  written  notice make  changes  within  the  general scope of the Order in any one or more of the following:

(i)     drawing, designs or specifications; (ii)    method of shipment or packaging;

(iii)   place of inspection, delivery or acceptance;

(iv)   amount of Buyer-furnished Manufacturing Materials; (v)   quantity.

(B)   Seller shall proceed immediately to perform the Order as changed.  If any such change causes a material increase or decrease in the cost of, or the time required for the performance of any part of the work in the Order, except as otherwise provided for in paragraph (C)  below,  Buyer  will  make  an  equitable  adjustment  in  the purchase price or delivery schedule or both.   Seller shall provide written notice of its intent to assert a claim within ten (10) calendar days from the date of receipt by Seller of such written notice of change.  Seller shall proceed with the change pending resolution of any claim for adjustment.  Failure to agree to any adjustment will be resolved in accordance with the Disputes clause of the Order.

(C)   Notwithstanding paragraphs (A) and (B) above, Buyer may make changes  to  the  Order  delivery  schedule  without  cost  impact provided that:

(i)     Buyer provides a minimum four (4) week notice to Seller for any delivery schedule acceleration; or

(ii)    Buyer provides a minimum four (4) week notice to Seller for any delivery schedule deceleration.

Clause 4 – STOP WORK

(A)      When directed by written notice from Buyer, Seller will immediately stop all or part of the work relating to the Order to the extent specified in the notice for a period of up to one hundred-eighty (180) calendar days or longer if extended by mutual agreement.  Seller shall take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the Order during the period of the stop work.

(B)   Within such period, Buyer may either terminate or continue the work by written order to the Seller.   If a Stop Work notice is cancelled or the period of the Stop Work notice or any agreed extension thereof expires, Seller must resume work and Buyer and Seller will agree upon a reasonable adjustment in the delivery schedule. In no event will such adjustment exceed the period of time in which the Stop Work notice was in effect.   Except as otherwise provided herein, the total Order price will not be adjusted and Buyer will not incur any liability by the issuance of a Stop Work notice.

Clause 5 – TERMINATION FOR CONVENIENCE

(A)   Notwithstanding any other provisions of the Order, the Buyer may by written notice terminate for its convenience the whole or any part of the Order upon providing ten (10) calendar days notice thereof, except that the Buyer may immediately terminate for its convenience the whole or any part of the Order in those instances in which such action is reasonably required as a result of Buyer’s customer taking action affecting all or part of the performance of work under the prime contract.   Upon receipt of such notice, the Seller must immediately cease work, including but not limited to the manufacture and procurement of materials for the fulfillment of the terminated portion of the Order.

(B)  Buyer’s only obligation shall be to pay Seller a percentage of the price reflecting the percentage of the work performed prior to the notice of termination.   Seller shall not be paid for any work performed or costs incurred that reasonably could have been avoided.

(C) In no event shall Buyer be liable for lost or anticipated profits, unabsorbed indirect costs or overhead, or any amount in excess of

the total Order price.

(D)   Seller shall continue all work not terminated.

(E)   In the event Seller has a claim for adjustment, it must notify Buyer in writing of its intent to file a claim within twenty-one (21) calendar days from the effective date of termination. Seller’s final termination claim must be submitted to Buyer within ninety (90) calendar days from the date that Seller’s intent to file a claim was submitted to Buyer.  Seller shall have no other remedies after this period.

Clause  6  –  TERMINATION  FOR  DEFAULT  

(A)   If the Seller fails to comply with any of the terms of the Order, fails to make progress so as to endanger performance of the Order, fails to provide adequate assurance of future performance, files or has filed against it a petition in bankruptcy or becomes insolvent or suffers a material adverse change in financial condition, the Buyer shall, prior to termination of the whole or part of the Order, give the Seller notice of default. The Seller shall have ten (10) calendar days (or more if authorized in writing from the Buyer) from the date of receipt of such notice in which to cure the default or to satisfy the Buyer that such default shall be cured within a period of time acceptable to the Buyer. Upon failure to cure the default, Buyer may give the Seller written notice of Termination for Default.

(B)   Upon termination, the Seller will have no claim for further payment other than as provided in this Clause, but will be liable to the Buyer for all direct losses and direct damages which may be suffered by the Buyer by reason of the default, including any increase in the costs incurred by the Buyer in procuring the Articles from another source.  Nothing in this Clause  affects any obligation of the Buyer under the law to mitigate damages and Seller must proceed with the portion of the Order not terminated under the provisions of this Clause.

(C)   If the Order is terminated for default, the Buyer may require the Seller to transfer the title and deliver, as directed by the Buyer any (i)   completed Articles, and

(ii)    Manufacturing Materials that the Seller and its subcontractors have specifically produced or acquired for the portion of the Order under notice of Termination for Default.  Upon direction of  the  Buyer,  the  Seller  shall  also  protect  and  preserve property in its possession in which the Buyer has an interest.

(D)   The  Buyer  shall  pay  the  Order  price  for  completed  Articles delivered and accepted.   The Seller and Buyer will agree on the amount  of  payment  for  Manufacturing  Materials  delivered  and

accepted.   Failure to agree will be a dispute under the Disputes

clause.  The Buyer may withhold from these amounts any sum the Buyer determines to be necessary to protect the Buyer against loss because of outstanding liens or claims of former lien holders and Buyer’s estimate of reprocurement costs due Buyer.

(E)   If, after termination, it is determined that the Seller was not in default, or that the default was excusable, as defined in the Excusable Delay clause, the rights and obligations of the parties will be the same as if the termination had been issued for the convenience of the Buyer and the provisions of the Termination for Convenience clause, will apply.

(F)   The rights and remedies of the Buyer in this clause or in any other clause of the Order are in addition to any other rights and remedies provided to Buyer by the law or under these Terms and Conditions.

Clause  7  –  Force Majeure

(A)  A delay in the performance by the Seller of any obligations under the Order that is caused by an event which:

(i)    is an act of God, act of Government, fire, riot, war, terrorism or any  other  event  which  constitutes  a superior  force  and  is

beyond the reasonable control of the Seller; and without any fault  on  the  part  of  the  Seller  and  interferes  with  the performance of Seller’s obligations; and

(ii)    the effects of which could not reasonably have been avoided by the Seller will, subject to the provisions of this Clause, constitute an Excusable Delay.

(B)   In  addition  to  the  events  described  in  paragraph  (A),  a  delay caused  by  the  default  of  a  subcontractor  of  the  Seller  may constitute an Excusable Delay if the event causing the default of such subcontractor is an event that meets the criteria set out in paragraph (A) and such delay has not been contributed to by the Seller, unless the subcontracted supplies or services were obtainable from other sources in sufficient time for the Seller to meet the required delivery schedule.

(C)  Except as otherwise provided herein, the following will not be considered as events beyond the reasonable control of the Seller:

(i)    lack of financial resources of the Seller or its subcontractors;

or

(ii)    any labor disturbances including strikes/lock-outs experienced by the Seller or its subcontractors;

(D)   To claim an Force Majeure, the Seller must, by written notice to the Buyer, describe in detail  any excusable delay and provide the

Buyer  with  an  acceptable  “work-around”  plan  within  ten  (10) calendar days of such facts coming to the attention of Seller.  The Buyer may accept or reject such “work-around” plan in writing and, if  accepted,  the  Seller  must  promptly  implement  such  “work- around” plan at Seller’s expense.

(E)   In the event of an Force Majeure, any affected delivery date will be postponed for such period as is reasonably necessary to offset the effects of the Excusable Delay.   In no event will the delivery date be extended by a time period longer than the time period in that the Excusable Delay was in effect.   No adjustment will be made to the Order price; adjustment to the delivery schedule is the exclusive remedy of the Seller in the case of an Excusable Delay.

(F)   Notwithstanding   the   above,   after   an   Excusable   Delay   has continued for a period of thirty (30) calendar days in the aggregate

the Buyer may, in the Buyer’s absolute discretion, terminate the Order.  In the event of such termination, the rights and obligations of Buyer and Seller shall be determined in accordance with the provisions of the Termination for Convenience clause herein.

Clause 8 – BUYER FURNISHED MANUFACTURING MATERIALS

(A)   Except  as  otherwise  provided  herein,  Seller  must  not  use, reproduce, or disclose for the benefit of any party other than Buyer, any Manufacturing Materials furnished by Buyer.  Seller must not use  the  Manufacturing  Materials  to  produce  or  manufacture Articles,  other  than  those  required  by  the  Order,  without  prior written authorization from Buyer.

(B)   Title to Manufacturing Materials furnished by Buyer will remain with Buyer at all times.  Seller must bear the risk of loss, damage or destruction of the Manufacturing Materials furnished by Buyer and shall promptly replace or repair, without  expense  to  Buyer,  any  of  the  Manufacturing  Materials which are lost, damaged, or destroyed unless such loss, damage or destruction is solely and directly caused by Buyer’s negligence.

(C)   Seller is responsible for care, maintenance, use and records of Buyer Furnished Manufacturing Materials.  Physical Inventories will be performed as required by Buyer.

(D)   All Buyer furnished Manufacturing Materials, together with spoiled and surplus materials and Articles must be returned to Buyer upon termination or completion of the Order unless Buyer will direct otherwise in writing.    When Buyer approves Manufacturing Materials to be furnished to Seller’s subcontractors for procurement of Articles by Seller for use in the performance of Buyer’s Order, Seller must insert the substance of this clause in its subcontracts.

(E)   Seller  acknowledges  that  Buyer’s  Manufacturing  Materials  are unique and proprietary and that monetary damages will be inadequate  to  compensate  Buyer  for  Seller’s  breach  of  this provision.  The parties agree that, in addition to any other remedies available to Buyer under the Order, or at law or in equity, Buyer will be entitled to seek injunctive relief to enforce the terms of this clause.

Clause 9 – QUALITY CONTROL/INSPECTION

(A)  Seller must provide and maintain a Quality Control System.  Seller agrees to permit Buyer to review its procedures, practices, processes and related documents to determine such accessibility. This system accessibility requirement will remain applicable to Seller in addition to any special quality assurance provisions, which may be incorporated elsewhere in the Order. Seller must provide, at no charge to Buyer, appropriate facilities and assistance to allow the Buyer  to perform quality control/inspection activities hereunder.

(B)   All Articles are subject to final inspection and acceptance by Buyer at destination, notwithstanding any payment or prior inspection at source.  The final inspection will be made within a reasonable time.  Buyer must notify Seller if any Articles delivered hereunder are rejected, and such Articles may be returned to Seller at Seller’s risk and expense at Buyer’s discretion.  Inspection and tests by Buyer do  not  relieve  the  Seller  of  responsibility  for  defects  or  other failures to meet the Order’s requirements. Acceptance will not be final with respect to latent defects, fraud, or gross mistakes amounting to fraud.

(C)  The  Seller  must  have  an  effective  program  for  investigation, corrective action, and follow-up for rejections initiated by the Seller or Buyer.  When the Buyer discovers discrepancies for which the Seller is responsible,  the  Buyer  may  forward  a  request  for corrective action to the Seller for action and response.  The Seller’s response must be returned to the Buyer within thirty (30) calendar days, and will include the causes of the discrepancy(s), the positive corrective action(s) taken to prevent recurrence, and the corrective action effective point by unit serial number or date.

(D) The Seller is responsible for complying with Quality System requirements noted herein and for meeting Quality performance expectations.  Failure to comply with Quality System requirements or to achieve an acceptable quality performance level may result in an on-site audit or additional source inspection oversight being initiated by Buyer, at Seller’s expense.  Buyer reserves the right to debit Seller accounts to compensate for inspection or related activities that take place as a result of Buyer directed inspections, including source inspections being by-passed by the Seller.

Clause – 10 SUSPECT/COUNTERFEIT PARTS

(A)  Seller shall supply Articles that are not and do not contain suspect/counterfeit parts.  A suspect item is an item in which there is an indication by visual inspection, testing, or other information that it may not conform to established government or industry accepted specifications or national consensus standards. A suspect/counterfeit item is any item that is a copy or substitute without legal right or authority to do so, or one whose material, performance, characteristics or identity does not appear to be authentic.   The  term  also  includes  approved  Article  that  has reached a design life limit or has been damaged beyond possible repair, but are altered and deliberately misrepresented as acceptable.  Failure by Seller to document material substitution or identify that an item has been refurbished or remanufactured is considered to be fraud, and the item then becomes suspect/counterfeit.

(B)    If it is determined by Buyer that a suspect/counterfeit part has been supplied, Buyer will impound the items pending a decision on disposition.  Seller shall replace such items with items acceptable to Buyer and shall be liable for all costs relating to the impoundment, removal, and replacement.  The remedies contained in this paragraph are in addition to any remedies Buyer may have at law, equity or under other provisions herein.  Buyer may also notify the applicable Government representatives and reserves the right to withhold payment for the items pending results of the investigation.

Clause 11 – WARRANTY

(A)   Seller warrants that all Articles delivered under the Order will be free from defects in design; material and workmanship will conform to applicable descriptions, specifications and drawings and are suitable for the purpose intended. THIS WARRANTY SHALL BE IN ADDITION TO ALL WARRANTIES ARISING AS A MATTER OF LAW AND SHALL SURVIVE ACCEPTANCE AND PAYMENT.

(B)   Seller’s warranties must be enforceable by Buyer’s customers as well  as  Buyer  and  will  be  valid  for  thirty-six (36)  months  after delivery to Buyer’s customers.

(C)   Defective Articles will be returned to Seller at Seller’s expense for repair or replacement, at Buyer’s option.     If Buyer finds it impractical to return defective Articles, Buyer may perform necessary repair at its own facility and charge the reasonable cost thereof to Seller. In the event defective Articles are returned to Seller, the repaired or replacement Articles will be provided by Seller, FOB.  Seller’s plant, to Buyer within twenty-one (21) calendar days from receipt of the defective Article by Seller. .   If Seller is unable to repair or replace the defective Article within the time allotted herein, Buyer may repair or replace the same and charge or debit Seller’s account for those costs.  For valid warranty claims, Buyer will debit Seller’s account for actual freight charges incurred both from and to the Buyer.

Clause 12 – INTELLECTUAL PROPERTY RIGHTS & INDEMNITY

(A)   Any copyright, trademark, trade secret, software, data, idea, concept, process, formula, invention, system, report or other intellectual property resulting from any Seller work performed for the Order and funded by Buyer, will be the sole property of Buyer.   Seller agrees to assign and hereby assigns to Buyer any interest Seller may have in such intellectual property right or invention(s) conceived by Seller or reduced to practice by Seller.

(B) With respect to Articles delivered under the Order, Seller shall save Buyer, its agents, customers, and users of its products harmless from  all  loss,  damage  and  liability  incurred  on  account  of  any infringement  or  alleged  infringement  of  a  Patent,  copyright,  or

trademark or misappropriation of a trade secret or other violation of an intellectual property right of a third party, arising out of the manufacture, sale, or use of such Articles by Seller, Buyer, Buyer’s agents, customers, or users of its products.  Seller shall at its own expense defend all claims, suits and actions against Buyer, its agents, customers or users of its products in which such infringement or other violation of an intellectual property right of any third party is alleged, provided Seller is notified of such claims, suits and actions. This indemnification does not apply to articles manufactured to detailed designs developed and furnished by Buyer.

Clause 13 – BOOKS AND RECORDS

Any proposals submitted by the Seller, pursuant to the Changes, Termination for Default, or Termination for Convenience clauses shall  include  sufficient  cost  data  and  reasonable  access  to Seller’s books, records and data as indicated herein. At Buyer’s request, Seller shall provide copies of collective labor agreements, if any.

Clause 14 – PRICES, PAYMENT AND DISCOUNT

Payment by Buyer will be made net sixty (60) days from the later of the following: (i) the date of acceptance of the Articles or (ii) from Buyer’s receipt of an acceptable invoice.  Any payment discounts will be calculated from the same date.   Discount terms shall be clearly stated on the face of each invoice.

Clause 15 – INVOICING, PACKING AND SHIPPING

(A)  Separate invoices indicating Order number, line item number(s), quantity, country of origin, unit price and extended value are required for each Order unless Pay Upon Receipt has been established with the Seller.  On date of shipment(s) Seller shall forward one copy of each invoice to:

  1. Apex Industries Inc. 100 Millennium Blvd, Moncton, NB Canada E1E 2G8
  2. E-mail – ap@apexindustries.com

(B)   Seller  must  comply  with  the  routing  instructions  shown  on  the Order.  Premium transportation will be paid by Buyer only when specifically authorized.  If delays caused by the Seller result in the need for premium transportation, the additional costs for the premium  transportation  is  the  sole  responsibility  of  the  Seller. Seller must not prepay, insure, or declare value of any shipment made F.C.A. shipping point.

(C) Separate packing lists are required for each Order and must accompany each shipment.  The location of the packing slip must be clearly marked on the container. The complete Order number must appear on all documents.

(D)   Single Article containers will be identified with Order, part number, and quantity.   When multiple Orders or Articles are combined in one container, they must be separately packaged inside that container and the packages identified as to Order, part number and quantity.

(E)   Unless otherwise specified, the price stated in the Order includes the  costs  of  preparing  and  packing  for  shipment,  container marking, and furnishing packing lists and test reports.

Clause 16 – DELIVERY

(A)   Seller is responsible for the Articles covered by the Order until they are delivered to the designated F.C.A. point specified on the Order. The Order will be governed by the provisions of Incoterms as published by the International Chamber of Commerce 2000, Paris, France. If Articles are received more than fifteen (15) calendar days ahead of specified schedule, Buyer reserves the right to keep the Articles and make payment as if the delivery was made per the specified delivery schedule, return the Articles to Seller at Seller’s expense or place the Articles in a Foreign Trade Zone (“FTZ”) at Seller’s expense until the specified delivery schedule. Buyer may debit Seller’s account for actual freight charges incurred both from and to Buyer or for any applicable FTZ charges.   The delivery dates contained in the Order are the dates that the Articles are required on dock at Buyer’s facilities.

(B)  Time is of the essence in performing the Order.  Should Seller experience or anticipate any delay in performing the Order, Seller must  immediately  notify  Buyer  in  writing  of  such  delay,  it’s expected duration and the reasons thereof.    Neither such notification  nor  an  acknowledgment  by  Buyer  will  constitute  a waiver of the Order’s specified delivery schedule.  Seller shall be liable for any direct or indirect damages resulting from a delay in delivery.

(C)  Seller, as applicable, shall pay all taxes and import or export duties of any kind outside of the U.S.A. or Canada, including those taxes or  duties  that  may  be  imposed  or  assessed  on  any  property furnished by Buyer (data, information, materials, components or tooling, and all fines or penalties imposed by reason of Seller’s failure to pay such taxes or duties. All such taxes and duties, existing, new or increased, are included in the price stated in the Order.

Clause 17 – ASSIGNMENT

Neither the Order nor any interest herein nor any claim hereunder will be assigned by Seller without the prior written consent of Buyer.  An assignment without Buyer’s written consent is ineffective and void.  No such consent will be deemed to relieve Seller of its obligations to comply fully with the requirements of the Order.  Seller may, however, without Buyer’s consent, assign the rights to be paid monies due or to become due to a financing institution if the following conditions are met:

(i)    Buyer must continue to have the right to exercise any and all of its rights under, settle any and all claims arising out of, and enter into amendments hereto, without notice to or consent of the assignee;

(ii)   the entire amount of said monies is assigned to a single assignee and

(iii)  Buyer is given notice of the assignment and all invoices submitted  by  Seller  contain  adequate  reference  to  the

assignment.

Clause 18 – PUBLIC RELEASE OF MATERIAL

Seller shall not advertise or publicize without Buyer’s prior written consent, in any medium, including, without limitation, any print, broadcast, direct mailing, or any internet web site maintained by or for Seller, the fact that Seller is a supplier of products or services to Buyer.    Neither Seller nor its subcontractors, suppliers or agents shall without Buyer’s prior written consent (i)  use  Buyer’s  name,  photographs,  logos,  trademarks,  or  any  other identifying information in any such medium; (ii) use (except to communicate with  Buyer)  or  its  affiliates)  any  internet  domain  names,  metatags,  or electronic mail addresses containing the names, “Bell Helicopter”, “Textron” or the names of any product or service for which Buyer owns the trademark; or (iii) provide a link to any domain name or internet address registered to Buyer or any of its affiliates.

Clause 19 – SET-OFF AND WITHHOLDING

Buyer has the right of set-off against any payments due or at issue under the Order or any Order between Buyer and Seller.  Buyer may withhold from payment to Seller in an amount sufficient to reimburse Buyer for any loss, damage, expense, cost or liability relating to Seller’s failure to comply with any requirements of the Order.

Clause 20 – DRAWINGS (if applicable)

(A)   All drawings, specifications and data furnished by the Buyer to the Seller shall remain the property of the Buyer and shall not be disclosed by the Seller and shall be used by Seller only as and to the extent required for the performance of the Order, unless otherwise approved by Buyer in writing.

(B)   No review or approval by the Buyer of any work hereunder or of any designs, drawings, specifications or other documents prepared by Seller will be construed to relieve Seller, in any way from design responsibility for the Articles to be delivered hereunder, or from responsibility to comply with the requirements of the Order.

Clause 21 – DISPUTES

(A)   In the event of a dispute arising between Buyer and Seller, which is not disposed of by agreement, Seller must request a final written decision from Buyer’s Procurement Manager.   If the parties can’t agree on a dispute resolution process or otherwise resolve a dispute, the said dispute may be filed in the proper court for disposition  pursuant  to  the  Applicable  Law  and  Venue  clause hereof.

(B)   Pending final resolution of any dispute or appeal hereunder, the Seller shall proceed diligently with the performance of the Order as directed by the Buyer.  If the dispute arises out of a difference in interpretation between the parties as to the performance requirements of the Order, then Seller shall continue performance as determined by the Buyer.

Clause 22 – GRATUITIES

(A)   Seller (or any agent or representative of Seller) will not offer or provide gratuities to any employee of Buyer.   Failure of Seller to honor this commitment may, at Buyer’s option, result in immediate termination of the Order in accordance with the Termination for Default clause, without provision for cure.

(B)   Seller is prohibited from providing, offering, or attempting to offer kickbacks or soliciting or accepting kickbacks.

Clause 23 – COMPLIANCE WITH LAWS

Seller shall comply with all applicable federal, provincial,  local and state  laws, including, but not limited to, laws with respect to the protection of the environment, and Seller hereby certifies that it is in compliance with all such laws and regulations in the production of the Articles, and that the Articles themselves are compliant with all applicable laws.   Seller will indemnify and hold Buyer harmless to the full extent of any loss, damage or expense, including lost profit, attorneys’ fees and court costs, for any failure or alleged failure of Seller to comply with the requirements of this clause or for any release or threat of release of any hazardous substance, hazardous or solid waste, pollutant or contaminate from any site now, or in the past, owned or operated by Seller, or any site where Seller disposed of or arranged for the disposal of any hazardous substance, hazardous or solid waste, pollutant or contaminate.

Clause 24 – HAZARDOUS MATERIAL

Seller certifies it is in compliance with any federal, provincial or state laws, including but not limited to the U.S. Occupational Safety and Health Act of

1970 (OSHA) or the Canadian Hazardous Products Act as applicable. Furthermore, if the Articles purchased herein are considered toxic or hazardous as defined in the above set of regulations, Seller shall provide a copy of the Material Safety Data Sheet (MSDS) with each shipment or as otherwise specified on the Order.

Clause 25 – INDEMNIFICATION

Seller shall hold harmless and unconditionally indemnify Buyer, its directors, officers and employees to the full extent of any liability, loss, cost, claim, damage or expense including, but not limited to, reasonable attorneys’ fees for the defense of all liabilities, costs, claims, damages and expenses by reason of any alleged or actual property damage or personal injury arising out of, as a result of, or in connection with the work performed hereunder due to:

(i)     any  act  or  omission  of  Seller  or  its  employees,  agents, subcontractors, or lower tier subcontractors; or

(ii)    any   act   or   omission   of   Buyer   or   its   officers,   agents, employees,  subcontractors,  or  lower  tier  subcontractors, including, but not limited to, any negligent act or omission of Buyer   or   its   respective   officers,   agents,   employees, subcontractors or lower tier subcontractors.

Clause 26 – APPLICABLE LAW AND VENUE

Both Buyer and Seller hereby submit to the exclusive jurisdiction of the Province of New Brunswick

Clause 27 – PARTIAL INVALIDITY; WAIVER

If any provisions of the Order including these Terms and Conditions become void or unenforceable, the other provisions will remain valid and enforceable. Waiver of one or more provisions of these Terms and Conditions by Buyer will in no way act as a waiver of any other provision herein.

Clause 28 – ORDER OF PRECEDENCE

In the event of any inconsistency among the provisions of the Order hereunder, such inconsistency will be resolved by giving precedence in the following sequence:

(A)  Provisions typed on the face of the Order including mandatory flowdowns in Buyer’s Prime Contract,

(B)   Long Term or Multiyear Agreement/Contract between Buyer and

Seller (If applicable)

(C)   Terms and Conditions, (D)   Statement of Work,

(E)   Specifications,

(F)   Other documents, exhibits, and attachments to the Order.

Clause 29 – OUTSOURCING

Notwithstanding any other provision of the Order, Seller must not procure any of the completed or substantially completed Articles described herein without the prior written consent of Buyer.

Clause  30  –  ELECTRONIC  DATA  INTERCHANGE   AND  SUPPLIER PORTAL

(A)  The  Parties  agree  that  if  an  Order  is  transmitted  electronically neither  party  shall  contest  the  validity  of  the  Order,  or  any

acknowledgement thereof, on the basis that the Order or acknowledgement contains an electronic signature.

Clause 31 – ENTIRE AGREEMENT/SEVERABILITY/SURVIVAL

(A) The Order, including attachments hereto, constitutes the entire understanding and agreement between the parties with respect to the subject matter hereof and supersedes all prior representations and understandings, whether oral or written.  However, nothing herein will be construed as a limitation or exclusion of any right or remedy available to Buyer by law.  Buyer and Seller agree that the U.N. Convention on Contracts for the International Sale of Goods will not apply to any purchase and sale of Articles governed by these Terms and Conditions.

(B)    If any provision of the Order is invalid or is prohibited by applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions, terms or conditions or of such Order.

(C)   The provisions of the Order which by their nature are intended to survive the termination, cancellation, completion or expiration of the Order, including any indemnities, warranties and expressed limitations of or releases from liability, shall continue as valid and enforceable obligations of the parties notwithstanding any such termination, cancellation, completion or expiration.

Clause 32 – INDEPENDENT CONTRACTOR

Seller is an independent contractor in all its operations and activities under the Order and all personnel furnished by Seller or used by Seller in the performance of the Order will be Seller’s employees exclusively without any relation whatsoever to Buyer.  Seller is responsible for all obligations and reporting requirements covering social security, unemployment insurance, worker’s compensation, income tax, and any other reports, payments or deductions required by local, state, or federal law or regulation.  Seller is not granted, expressly or impliedly, any right or authority to create any obligation or liability on behalf of or in the name of Buyer.

Clause 33 – BUYER INFORMATION

Seller agrees to comply with the terms of any Proprietary Information Exchange Agreement(s) with Buyer and to comply with all proprietary information markings and restrictive legends on information provided hereunder by Buyer to Seller.  Seller agrees not to use any Buyer-provided information for any purpose except to perform the Order and agrees not to disclose such information to third parties without the prior written consent of the Buyer.

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