1. Governing Conditions of Sale
These conditions of sale (the “Terms”) apply to all sales of products and/or services (“Deliverable” ), and all quotations, invoices, agreements and other documents (collectively “Seller’s Documents”) from Woodbridge Foam Corporation and its subsidiaries and related entities (collectively, the “Seller”) and to all purchase orders from Seller’s customer (“Buyer”), and are the only terms and conditions applicable to the sale of Seller’s Deliverables. These Terms and the Seller’s Documents comprise the entire agreement between the parties (collectively, this “Contract”). Buyer accepts these Terms by accepting Seller’s quotation, by sending a purchase order in response to a quotation, or by instructing Seller to ship or provide Deliverables. Purchase orders if accepted by Seller are accepted subject to the Terms set forth herein. Except as otherwise provided in the Seller’s Documents, Seller may accept or reject a Buyer order in Seller’s sole discretion. Seller will accept an order by confirming the order in writing (including via electronic mail). Once an order is accepted by Seller, Buyer shall be liable for the entire value of such order. Seller hereby rejects any additional or different terms or conditions proposed by buyer, whether or not contained in any of buyer’s business forms or on buyer’s website, and such additional or different terms and conditions shall be void and will not become part of this contract unless modified in accordance with Section 10. In addition, no site usage agreement or any click through agreement on a website will have any applicability or binding effect whether or not Seller clicks on an “ok”, “I accept,” or similar acknowledgment.
2. Prices
Price for the Deliverable will be as set out in the Seller’s invoice. Prices are subject to change if a supplier of raw material or a component, or a service provider (including, without limitation, freight) raises its prices, or imposes a surcharge on Seller. In the event of an increase in cost, Seller reserves the right to increase prices and/or impose a surcharge, and Buyer agrees to accept such price increases or surcharge unless the parties reach a different arrangement. Applicable sales and use taxes, and import/export duties and other charges, are in addition to any prices quoted by Seller and shall be paid by Buyer.
3. Quantity and Duration:
Upon acceptance of the Order, Seller shall deliver the quantity specified in the order and Buyer shall be obligated to take delivery of and pay for the full quantity of the accepted Order.
4. Payment & Credit
Unless otherwise expressly stated in the Seller’s Documents, terms of payment are 30 days net from Delivery. Buyer may not set-off, withhold, offset, recoup or debit any amounts owed (or to become due and owing) to Seller or any of its affiliates, whether under this Contract or otherwise, against any other amount owed (or to become due and owing) to it by Seller or Seller’s affiliates, whether relating to Seller’s or its affiliates’ breach or non-performance of this Contract, any purchase order, any other agreement between (i) Buyer or any of its affiliates and (ii) Seller or any of its affiliates, or otherwise. If payment on any Delivery (defined in Section 5 below) is delayed or if the amount of credit granted is exceeded, without prejudice to any claim for damages to which Seller may be entitled, Seller reserves the right to take any and all of the following actions: (a) any actions allowable under law; (b) withhold Delivery of Deliverables; (c) institute new payment terms; (d) require financial information and/or satisfactory security from the Buyer for due performance of its obligations; and/or (e) cancel all or part of this Contract. In addition, Buyer agrees to pay interest on overdue invoices at a rate equal to the lesser of 1.5% per month, and the highest rate permitted by law. If Buyer fails to make any payment as required, Buyer agrees to indemnify Seller for all costs and expenses, including reasonable attorneys’ fees, court costs, and associated expenses incurred by Seller in connection with collecting payment hereunder. Time of payment is of the essence.
5. Delivery and Risk of Loss
Seller shall not maintain an inventory of the Deliverables and, unless otherwise expressly stated in the Seller’s Documents. Unless otherwise specified in the applicable order, all Deliverables will be shipped FCA Seller’s facility using Seller’s standard methods for packaging and shipping such Deliverables. For purposes hereof, “Delivery” means when Seller makes the Deliverables available for pickup by the applicable carrier at Seller’s facility. Risk of loss or damage passes to Buyer upon Delivery. When arrangements have been made between the parties for specific delivery dates, any delivery made within 3 days after the dates specified shall constitute fulfillment of Seller’s delivery obligations. Seller shall not be liable for any delays, loss or damage in transit. Title to such Deliverables shall not pass until they have been fully paid for by Buyer. Container quantities/design and Buyer supplied packaging must be reviewed and agreed to by Seller. Further, logistic assumptions used to determine container quantities must be reviewed and agreed to by Seller.
6. Force Majeure
Seller shall not be deemed to have defaulted under or breached this Contract, for any failure or delay in fulfilling or performing any term of this Contract, when and to the extent such failure or delay is caused by or results from acts beyond the Seller’s reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): labor disputes, accidents, fire, war, breakage of machinery, government regulations, acts of God, riots, explosions, floods, inability to obtain power, raw materials, components or transportation facilities, epidemics, and pandemics. In the event a Force Majeure Event continues for a period of 3 months, then the Buyer shall have the right to give written notice to the Seller terminating this Contract.
7. Inspection and Warranty
For purposes hereof, “Nonconforming Deliverables” means Deliverables, or quantity thereof, that do not meet the specific validation criteria listed on the Certificate of Analysis or Certificate of Conformance or Product Certificate (“Certificate”) provided by the Seller at the time of shipment. Deliverables shall not be deemed “non-conforming” solely due to variations within the stated tolerance listed on the Certificate. The Certificates are based on Seller’s standard quality control procedures and testing methods. Deliverables that are damaged, degraded, or otherwise rendered unsuitable due to improper storage, handling or use after Delivery shall not be considered Nonconforming Deliverable. Buyer shall inspect Deliverables received under the Contract and either accept or, only if any such Deliverables are Nonconforming Deliverables, reject such Deliverables. Buyer will be deemed to have accepted Deliverables unless it provides Seller with written notice of any Nonconforming Deliverables within 30 days following delivery, stating with specificity the reason such Deliverables are allegedly Nonconforming Deliverables, and furnishing such other written evidence or other documentation as may be reasonably required by Seller. All nonconformities that are not so specified will be deemed waived by Buyer, such Deliverables shall be deemed to have been accepted by Buyer, and no attempted revocation of acceptance will be effective. If Buyer timely notifies Seller of any Nonconforming Deliverables, Seller shall determine, in its reasonable discretion, whether the Deliverables are Nonconforming Deliverables. If Seller agrees that such Deliverables are Nonconforming Deliverables, Seller shall, in its sole discretion and option, either: (a) replace such Nonconforming Deliverables with conforming Deliverables; (b) refund to Buyer such amount paid by Buyer to Seller for such Nonconforming Deliverables.
Buyer shall ship, at Buyer’s expense and risk of loss, all alleged Nonconforming Deliverables to such location as Seller may instruct Buyer in writing, provided that Seller shall credit Buyer for reasonable shipping expenses if Seller determines the respective Deliverables to be Nonconforming Deliverables. If Seller exercises its option to replace Nonconforming Deliverables, Seller shall ship to the delivery location specified by Buyer, at Seller’s expense and risk of loss, the replacement Deliverables.
THE REMEDIES SET FORTH ABOVE ARE BUYER’S EXCLUSIVE REMEDY FOR THE DELIVERY OF NONCONFORMING DELIVERABLES.
Seller shall not be liable for a breach of the warranty set forth in Section 7 if: (a) Buyer makes any further use of such Deliverables after giving such notice; (b) the non-conformance arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Deliverables; or (c) Buyer alters or repairs such Deliverables without the prior written consent of Seller.
EXCEPT AS SET FORTH ABOVE, SELLER MAKES NO OTHER WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING NO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH RESPECT TO ITS DELIVERABLES.
SELLER’S LIABILITY AND BUYER’S EXCLUSIVE REMEDY FOR NON-CONFORMING DELIVERABLES, OR FOR ANY FAILURE OF SELLER TO COMPLY WITH ITS OBLIGATIONS UNDER THIS CONTRACT INCLUDING ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN THIS SECTION 7, SHALL BE LIMITED SOLELY TO REPLACEMENT, REPAIR, REFUND OR ALLOWANCE AS SELLER MAY ELECT. SELLER SHALL HAVE THE RIGHT EITHER TO REPLACE OR REPAIR ANY NON-CONFORMING DELIVERABLES OR TO REFUND THE PURCHASE PRICE UPON RETURN OF THE DELIVERABLES OR TO GRANT REASONABLE ALLOWANCE ON ACCOUNT OF SUCH NON-CONFORMANCE.
SELLER SHALL BE GIVEN A REASONABLE OPPORTUNITY TO INVESTIGATE ALL CLAIMS AND NO DELIVERABLES SHALL BE RETURNED TO SELLER OR REMEDIED BY SELLER UNTIL AFTER INSPECTION AND APPROVAL BY SELLER, AND BUYER HAS PROVIDED ALL MATERIALS INCLUDING, WITHOUT LIMITATION THE ACTUAL PRODUCT OR CUSTOMER REPORT DATA AND PHOTOS DEMONSTRATING THE PRODUCT DOES NOT COMPLY WITH THE APPLICABLE SPECIFICATIONS.
8. Patents and Trademarks/Ownership of Pre-existing Seller Technology
Seller makes no representation or warranty of any kind, express or implied, that the Deliverables and/or Services sold hereunder or the use of such Deliverables, or articles made there from, either alone or in conjunction with other material will not infringe any patent or trademark rights. Buyer shall promptly notify Seller of any claim or suit involving Buyer in which such infringement is alleged, and, if Seller is affected, Buyer shall permit Seller to control completely the defense or compromise of any such allegation of infringement. Seller shall have no obligation to sell, assign, license or transfer intellectual property of any kind to Buyer, and Buyer shall have no right to use any intellectual property of Seller without the express written consent of Seller, which may be withheld in its sole discretion. Seller may enforce this Section through injunction or otherwise. The Buyer covenants and agrees to indemnify and hold Seller harmless from and against all damages, claims, liabilities, costs and expenses (including actual fees for attorneys, experts and consultants, settlement costs and judgments) arising out of or related to allegations, claims or demands based on infringement of any patent, copyright or other intellectual property, where Seller uses drawings and/or specifications furnished by the Buyer in the fulfillment of this Contract. Seller shall own all right, title and interest in and to any pre-existing Seller Technology (as defined). “Intellectual Property” means all patents, patent applications, copyrights, trade secrets, industrial design and other intellectual property existing prior to the date of this Agreement and any improvements thereto. “Seller Technology” means all technology, Intellectual Property, know how, processes, methods, formulas, technical data, software, equipment, designs, specifications and any other information related to Seller’s manufacturing process, and any improvements thereto.
9. Limitations of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SELLER, ITS OFFICERS, DIRECTORS, AGENTS OR EMPLOYEES (“SELLER PARTIES”) BE LIABLE, AND BUYER WAIVES ALL CLAIMS AGAINST SELLER PARTIES, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR PROFITS, GOODWILL, LOST DATA, AND/OR COSTS OF PROCUREMENT OR SUBSTITUTE GOOD, FOR ANY BREACH OF WARRANTY OR FOR ANY MATTER ARISING OUT OF OR OTHERWISE RELATING TO THIS CONTRACT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE, EVEN IF SELLER PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER OR NOT BASED UPON SELLER PARTIES NEGLIGENCE OR BREACH OF WARRANTY OR STRICT LIABILITY IN TORT OR ANY OTHER CAUSE OF ACTION.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE SELLER PARTIES LIABILITY, INCLUDING ATTORNEY’S FEES, UNDER THIS CONTRACT OR IN CONNECTION WITH THE SALE OF DELIVERABLES BY SELLER PARTIES EXCEED THE PURCHASE PRICE OF THE SPECIFIC DELIVERABLES GIVING RISE TO THE CLAIM.
10. Modifications and Waiver
No modification of this Contract shall be binding unless made in writing and signed by authorized representatives of each party that specifically references this Contract and states that it modifies it. No waiver by either party of any of the provisions of this Contract is effective unless explicitly set forth in writing that specifically references this Contract and is signed by the waiving party. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Contract operates or may be construed as a waiver hereof.
11. Confidentiality
All confidential and proprietary information of Seller, including, but not limited to specifications, samples, designs, plans, drawings, technical information, intellectual property, documents, data, processes, business operations, customer information, pricing or discounts that Seller discloses to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and regardless of whether marked or otherwise identified as “confidential” in connection with this Contract (collectively, “Confidential Information”) is confidential, solely for use of performing this Contract, and may not be disclosed to any third party or copied unless authorized in advance by Seller in writing. Buyer shall protect Seller’s Confidential Information using the same degree of care that Buyer uses to protect its own confidential information, which shall in all cases be at least a commercially reasonable level of care. Upon Seller’s request, Buyer will promptly return all documents and other materials received from Seller. Seller will be entitled to injunctive relief for any violation of this Section, without having to post bond or establish the insufficiency of a remedy at law, in addition to all other remedies available at law. Confidential Information shall not include information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; (c) rightfully obtained by Seller on a non-confidential basis from a third party. In the event that Discloser conveys to Recipient information in the form of a sample or prototype, Recipient shall not analyze the sample or prototype for the purpose of determining the nature of the composition of the sample or prototype without the consent of the Disclosure.
12. Termination
In addition to any other remedies that Seller may have, Seller may terminate this Contract with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Contract and the failure continues for 5 days after Buyer’s receipt of written notice of non- payment; (b) has not otherwise performed or complied with this Contract, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings related to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. Upon termination of this Contract for any reason, Seller shall be entitled to receive payment for: (a) Deliverables delivered and accepted hereunder prior to the effective date of termination; (b) Deliverables which are in process pursuant to orders accepted by Seller prior to the effective date of termination; (c) materials and components which were purchased by Seller to support firm orders and forecasts prepared by Buyer; and (d) any third party fees, costs, and expenses incurred by Seller in connection with such termination.
13. Governing Law and Arbitration
This Contract shall be governed and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, without regard to conflict of laws provisions. For greater certainty, the United Nations Convention on Contracts for International Sale of Goods shall not apply to this Contract. Subject to the arbitration provisions in this Section 13, the parties hereby irrevocably attorn to the courts of the Province of Ontario located in Toronto, Ontario. All claims, controversies or disputes arising out of, or relating to, this Contract or any modification of it shall be resolved by binding arbitration in Toronto, Ontario under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The Emergency Arbitration Provisions shall not apply. Arbitration shall be governed by the Ontario Arbitration Act, 1991.
14. Assignment
Buyer shall not assign its interest in any purchase order without Seller’s prior written consent.
15. Audits
Buyer shall have no right to (a) inspect Seller’s facilities, (b) examine Seller’s books, records or other documents, or (c) seek or obtain any information from Seller deemed proprietary or confidential by Seller in its sole discretion, without the express written consent of Seller obtained in each instance, which consent may be withheld in Seller’s sole discretion.
16. Entire Agreement
This Contract shall constitute the entire agreement of the parties and supersedes all existing agreements and all other oral or written communications between them concerning its subject matter. This Contract may not be added to, modified, superseded, or otherwise altered, except in accordance with Section 10.
17. Compliance with Law
Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Contract. Buyer shall comply with all export and import laws (including those prohibiting use in drugs, nuclear, and weapon manufacture) of all countries involved in the sale of the Deliverables under this Contract. The Buyer assumes all responsibility for shipments of Deliverables requiring any government import clearance. Seller may terminate this Contract if any governmental authority imposes antidumping or countervailing duties or any other penalties on Deliverables.
18. Severability
If any term or provision of this Contract is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Contract or invalidate or render unenforceable such term or provision in any other jurisdiction.
19. Survival
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Contract including, but not limited to, the following provisions: 1, 2, 4, and 6 through 20.
20. Relationship of the Parties
The relationship between the parties is that of independent contractors. Nothing contained in this Contract shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.