1.) RISK OF LOSS:
Unless otherwise specifically agreed to in writing by Sensor Technology Ltd., all sales made hereunder shall be F.O.B. Sensor Technology Ltd.’s factory, and title to products priced F.O.B. Sensor Technology Ltd.’s factory shall pass to Buyer upon delivery at such shipping point.
All prices are based on shipments made F.O.B. Sensor Technology Ltd.’s factory. Prices are subject to change without notice and billing will be based on prices in effect at the time of shipment. Price quotations shall remain in effect for the period of time specified in the quotation, but if no such time period is specified, billing shall be based on prices in effect at the time of shipment. Unless specifically included in the price quotation, such quotations will not include supplying pre-production or evaluation samples or supplying test data of any kind.
Payment terms are net thirty (30) days unless otherwise specified. A two-percent (2.0 %) service charge will be added for every month or part of a month that the amount due remains unpaid after its due date.
Sensor Technology Ltd. shall use its best efforts to make deliveries in the quantities and at the times specified in this order. Unless the Buyer specifies shipping instructions, shipment and delivery will be made by the carrier and in the manner designated by Sensor Technology Ltd. Sensor Technology Ltd. shall not be liable for delays or defaults in deliveries due to causes beyond Sensor Technology Ltd.’s control and without its fault or negligence.
Buyer shall perform incoming inspection and testing on a statistical basis or as otherwise necessary to monitor the quality of the products shipped hereunder. Buyer may reject those products that do not meet specifications or samples supplied pursuant to Warranty Item 6; provided however, that any such inspection or testing performed by the Buyer hereunder must be completed within thirty (30) days of the receipt of any shipment included hereunder. Buyer’s failure to perform inspection and testing, AND to advise Sensor Technology Ltd. of discovered defect or non-conformity within thirty (30) days as specified herein shall result in a waiver of Buyer’s right of rejection, and loss of all warranty of such products otherwise provided to the Buyer herein.
Sensor Technology Ltd. warrants that upon delivery, good title to the products included hereunder, free and clear of all liens of whatsoever kind or nature, will vest in the Buyer and that the products delivered will be of the kind designated or specified; provided however, that if Sensor Technology Ltd. supplies, and the purchaser approves samples, then, in lieu of all other warranties, Sensor Technology Ltd. warrants that the products delivered will conform within reasonable tolerances to such samples. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, UNLESS OTHERWISE SPECIFICALLY STATED IN WRITING BY SENSOR TECHNOLOGY LTD.
Sensor Technology Ltd. will replace, at the delivery point specified herein, any product furnished hereunder that is found to be defective or otherwise fails to conform to the terms and conditions included herein or, and at Sensor Technology Ltd.’s option, Sensor Technology Ltd. will repay the price paid for such product, plus any transportation charges for such product paid by Buyer in addition to such price. Claims hereunder must be made in writing to Sensor Technology Ltd. within thirty (30) days of the receipt of any shipment by the Buyer. Upon receipt of any notice of claim as provided hereunder, Sensor Technology Ltd. shall be given a reasonable time within which to investigate the Buyer’s claim and to cure all defects. Buyer’s legal remedies with respect to any products furnished by Sensor Technology Ltd. hereunder that are found to be defective or otherwise fail to conform to the terms and conditions included herein, shall be limited exclusively to the right to replacement thereof or to repayment of the price, (at the sole option of Sensor Technology Ltd.) as provided above. No legal action shall be commenced against Sensor Technology Ltd. With respect to the liability of Sensor Technology Ltd. hereunder more than six (6) months after the occurrence alleged to give rise to such liability. In no event shall Sensor Technology Ltd. be liable to Buyer for consequential, incidental or exemplary damages, including but not limited to, loss of profit or revenue, loss of use of machinery or equipment, downtime costs or claims of Buyer’s customers for damages.
Sensor Technology Ltd. shall indemnify Buyer for all direct and actual damages recovered from Buyer by a third person in any legal proceedings for infringement of Canadian Patent by the products furnished hereunder, provided that Buyer promptly notifies Sensor Technology Ltd. of the claimed infringement, permits Sensor Technology Ltd. to assume the defence thereof, and cooperates with Sensor Technology Ltd. with respect to such defence. If Sensor Technology Ltd. elects not to assume the defence, Sensor Technology Ltd. shall also indemnify Buyer for all expenses incurred in the defence of such infringement action. In the event products furnished hereunder are produced under specifications of Buyer, no liability under this paragraph shall arise against Sensor Technology Ltd. In like manner, Buyer agrees to indemnify and save Sensor Technology Ltd. harmless from patent infringements resulting from Sensor Technology Ltd.’s compliance with designs and/or specifications (unless originating with Sensor Technology Ltd.) now or hereafter forming a part of this contract or with specific written instructions given by Buyer for the purpose of directing the manner in which Sensor Technology Ltd. shall perform this contract.
(a) Sensor Technology Ltd. shall have the right to cancel purchase orders of the Buyer in the event the Buyer fails to comply with the terms of payment specified in this contract or in any prior or subsequent purchase order included herein. In the event Sensor Technology Ltd. shall have reasonable grounds to doubt, at any time, the Buyer’s financial abilities to perform under this contract, Sensor Technology Ltd. may demand, in writing, adequate assurances of performance from the Buyer and may, until such assurances are received from Buyer, suspend its performance under this contract. Upon receipt of a justified demand, as provided hereunder, Buyer’s failure to provide adequate assurances of performance, acceptable to Sensor Technology Ltd., within thirty (30) days of the receipt of such notice, shall be considered a repudiation of the contract and shall entitle Sensor Technology Ltd. To proceed as specified in section (b) of this paragraph.
(b) Except as otherwise provided herein, this order is subject to termination in whole or in part, at the election of Buyer upon delivering thirty (30) days advance written notice to Sensor Technology Ltd. Upon receipt of such termination notice, Sensor Technology Ltd. shall forthwith discontinue all work and the incurring of any additional expenses relating hereto except as may be directed by Buyer in the termination notice. In such event, Buyer shall pay such amount as Sensor Technology Ltd. and Buyer may agree is to be paid by reason of the termination. In the event of failure to agree upon the amount to be paid by reason of the termination, Buyer will pay to Sensor Technology Ltd., and Sensor Technology Ltd. agrees to accept in full payment: (i) the stipulated price with respect to products completed and delivered in accordance with Buyer’s order; (ii) Sensor Technology Ltd.’s cost and expense, including a reasonable allowance for profit, in connection with completed but undelivered products as well as the unfinished work and raw materials on hand acquired for the completion of this order; and (iii) cost or damages of completion or cancellation (as the case may be and at the election of Sensor Technology Ltd.) of contracts for raw materials ordered specifically for this order. Provided that the total payments under (ii) and (iii) shall not exceed the stipulated price with respect to the same products, if finished, less the estimated cost of finishing work and unprocessed raw materials on hand acquired by Sensor Technology Ltd. in connection with this order. Nothing in this paragraph shall in any way modify any other provision of these terms and conditions relating to cancellation or termination by Buyer.
(c) This order is subject to termination in whole or in part, at the election of Sensor Technology Ltd. upon delivering five (5) days advance written notice to Buyer. Upon execution of such termination notice, Sensor Technology Ltd. shall forthwith discontinue all work and the incurring of any additional expenses relating hereto. In such event, Sensor Technology Ltd. shall repay any payments made for any portion of the order unfulfilled as a result of the termination.
10.) FORCE MAJEURE:
Neither Sensor Technology Ltd. nor Buyer shall be liable to the other for default or delay in delivering or accepting goods hereunder if caused by an Act of God, war, mobilization, riot, strike, embargo, shortage of utility, facility, material or labour, delay in transportation, breakdown or accident, or compliance with or action taken to carry out the extent or purpose of any law or regulation. When only a part of Sensor Technology Ltd.’s or Buyer’s capacity to perform is excused under this paragraph, Sensor Technology Ltd. or Buyer must allocate production, deliveries, or receipt of deliveries among various customers or suppliers then under contract for similar products during the period when Buyer or Sensor Technology Ltd. is unable to perform. The allocation must be effected in a commercially fair and equitable manner. When either Sensor Technology Ltd. or Buyer claims an excuse for nonperformance under this paragraph, it must give notice in writing to the other party. When an allocation has been made, notice of the estimated quota made available for Buyer or Sensor Technology Ltd., as the case may be, must be given. Should such inability to perform continue for a period in excess of sixty (60) days Sensor Technology Ltd. shall not be obligated to sell, nor shall Buyer be obligated to purchase, at a later date, that portion of the goods which Sensor Technology Ltd. is unable to deliver or Buyer is unable to receive or use because of any of the aforementioned causes beyond the control of the parties.
Buyer may from time to time request changes in this order, including but not limited to, changes in drawings, designs, specifications, method of inspection, method of packaging, order period, rate of shipment, method of shipment, and/or place of delivery, or other provisions contained herein, by written instruction to Sensor Technology Ltd. in a change order notice or letter from Buyer’s Purchasing Department. Sensor Technology Ltd. shall determine whether such change causes an increase or decrease in cost or time of performance of this order and thereafter shall notify Buyer’s Purchasing Department in writing within thirty (30) days from the date of receipt of such change order notice, or letter, or within such other time limit as agreed to by Buyer and Sensor Technology Ltd., and a mutually satisfactory adjustment shall be negotiated. The agreed to adjustment shall be incorporated as part of this agreement by means of a written change order notice from Buyer’s Purchasing Department. Sensor Technology Ltd.’s failure to advise Buyer’s Purchasing Department that an adjustment is necessary prior to performance of the work called for by the change order notice shall constitute Sensor Technology Ltd.’s agreement to conform to said change order notice without an increase in price and without charge for cost of material and/or tooling rendered obsolete and that delivery will be made as specified by this agreement. In the event that the requested change order notice is of such a nature and scope as to preclude mutual agreement between Buyer and Sensor Technology Ltd., Buyer or Sensor Technology Ltd. may terminate this order. Any termination hereunder shall be considered a termination for the convenience of the Buyer and governed by paragraph 9(b) of this contract.
12.) SALES AND OTHER TAXES:
The purchase price does not include sales, use, excise or other taxes. Consequently, in addition to the purchase price specified herein, the amount of any present or future sales, use, excise or other tax applicable to the sale of products sold hereunder or the use of such products by the Buyer shall be paid by the Buyer or, in lieu thereof, the Buyer shall furnish Sensor Technology Ltd. With a tax exemption certificate acceptable to both Sensor Technology Ltd. and the appropriate taxing authority.
(a) Any clause required to be included in a contract of this type by any applicable law or administrative regulation having the effect of law shall be deemed to be incorporated herein. (b) No terms or conditions other than those stated herein, and no agreement or understanding, oral or written, in any way purporting to modify these terms or conditions, whether contained in Buyer’s purchase or shipping release forms or elsewhere, shall be binding on Sensor Technology Ltd. unless hereafter made in writing and signed by its authorized representative. All proposals, negotiations, and representations, if any, made prior to and with reference hereto, are merged herein. (c) Waiver by Sensor Technology Ltd. or Buyer of any breach of these provisions shall not be construed as a waiver of any other breach. (d) All matters related to this order or in any way governing the relationship of the Buyer and Sensor Technology Ltd. shall be governed entirely by the laws of the Province of Ontario, Canada. (e) Any notice required to be delivered hereunder shall be effective when and as of the date sent by one party to the other by registered mail to that address set out below. (f) Any part or parts of these terms which are deemed unenforceable by a court of competent jurisdiction shall be severable from the remainder of the terms.