Prices shown on the face of this Purchase Order shall be firm and fixed otherwise agreed to in writing by MPB Communications Inc. (MPB). Unless otherwise provided herein, such prices shall include all applicable federal and local taxes and any provincial sales taxes shall be set out separately in the invoice. Shipments shall not vary from quantities specified herein unless agreed to by MPB.
By acceptance of this Purchase Order and/or performance hereunder, seller agrees to comply fully with the terms and conditions of sale set forth on both the front and reverse sides of this document and any supplements hereto which are incorporated by a reference herein. Acceptance of this Purchase Order is expressly limited to the terms and conditions contained herein and none of Sellers terms and conditions in acknowledging or accepting this Order shall apply. Acceptance of the goods or services under this Purchase Order shall not constitute acceptance of Seller’s terms and conditions. This Purchase Order may not be modified except by an instrument in writing duly executed by MPB. Final inspection and acceptance of goods and services shall be on MPB’s premises unless otherwise agreed to in writing. Nonconforming goods shall be returned freight collect, and Seller shall be debited for inbound transportation cost plus handling expense. Such rejected goods shall be deemed to the property of Seller.
Subject to a three (3) calendar day prior notice to Seller, Reseller or Reseller’s representative shall be entitled to carry out quality control inspections/audits at the Seller’s production sites before or during performance of the PO. The quality control inspection/audits carried out by Reseller shall not reduce Seller’s contractual liability and it shall not affect Reseller’s right to refuse all or part of the Products and/or other deliverables at delivery.
(a) Time is of the essence of this order. If Seller fail to make deliveries or perform the services at the time agreed upon, or performs the work hereunder in such a fashion as endangers its ability to make timely deliveries or to render timely performance of services, MPB reserves the right to cancel, purchase elsewhere and hold Seller accountable for any additional costs or damages incurred by MPB. Goods purchased F.O.B. Seller’s plant or shipping point shall not be considered delivered until they reach the MPB destination indicated on the Order, however, MPB assumes responsibility at the F.O.B. point for carrier routing, transportation charges and risk or loss or damage to the goods in transit, provided such goods are properly prepared and packed for shipment by Seller. Title to the goods shall pass to MPB at the F.O.B. point. (b) Rights and remedies of MPB hereunder are cumulative and in addition to those which MPB has under law and equity. (c) Any waiver by MPB of any particular breach or default hereunder by Seller shall not constitute a continuing waiver or a waiver of any other breach or default. (d) Approval by MPB of Seller’s proposed design, test plans and/or procedures, manufacturing process, methods, tolling or facilities shall not relieve Seller from meeting all requirements of this Order.
Unless a different warranty is agreed upon and set forth herein, Seller warrants all goods and/or service delivered or provided hereunder to be free from defect in materials or workmanship, fit for the purpose intended for a period of fifteen (15) months from delivery to MPB and to conform strictly to the specifications, drawings or sample specified or furnished and any supplementary documentation referenced herein. Seller further warrants that Seller shall comply with the requirements of all applicable federal, provincial and local laws, rules ordinances and regulations. This warranty shall survive any inspection, delivery or acceptance of the goods or services, or payment therefore, by MPB. Further, Seller represents and warrants for the life of the Products, that the Products will have no design defects.
In the case of repeated or epidemic failures of equipment/ parts or any component, Seller shall within a reasonable time, provide MPB with satisfactory evidence that such repeated failure is not caused by a serial defect or design failure. In the event, such evidence is not satisfactory to MPB, Seller shall at its expense promptly develop a corrective action plan to eliminate the problem, make necessary corrections on all Products to be shipped to MPB thereafter, and, at its option and expense, shall either repair or replace all Products containing the actual or potential defects or components shipped to MPB. Such obligation of Seller to replace or repair products shall include reimbursement of MPB’s cost of remedying or repairing Products shipped to Customers or other third party users
Cash discount period will commence on the day of receipt of invoice that meets the requirements of this Purchase Order or the day of actual receipt of the goods on MPB’s premises, whichever is later.
Seller shall comply with MPB’s shipping and routing instructions. Seller shall not use premium cost transportation unless authorized by MPB. Losses and/or excess charges resulting from deviation from MPB’s instruction will be charged to Seller’s account.
Neither this order nor any rights and obligations under it shall be assigned or contracted to third parties by Seller without the prior written consent of MPB.
The Seller agrees to defend, at its own expense, MPB and distributors and dealers in and users of the products of MPB, and to hold them harmless with respect to any and all claims that the products or materials furnished by the Seller under this Order infringe any Canadian and/or foreign Patent, Trademark, Copyright and/or other Property Right of third parties, and with respect to any and all suits, controversies, demands and liabilities arising out of any such claim provided that the foregoing shall not apply to any infringement resulting from Seller’s use of a patented invention required to comply with the written instructions of MPB is such patented invention is not normally utilized by the Seller.
To the extent that Seller’s agents, employees or subcontractors enter upon premises occupied by or under control of MPB, or any of its customers of suppliers in the course of the performance of this Order. Seller shall take all necessary precautions to prevent the occurrence of any injury (including death) to any person, or any damage to any property Arising out of any acts or omissions of such agents, employees, or subcontractors and except to the extent that any such injury or damage is due solely and directly to MPB’s negligence shall indemnify MPB against any loss, claim, damage, liability, expense (including reasonable attorney’s fees) and cause of action whatsoever arising out of any act or omission of the Seller, its agents, employees or subcontractors, and Seller shall maintain such Public Liability, Property Damage and Employer’s Liability and Compensation insurance as well protect MPB from any of said risks and from any claims under any applicable Workmen’s Compensation Acts.
This Order and the acceptance thereof shall be a contract governed by the laws of the province from which the Order is issued.
If this order has been placed by MPB in Canada for purpose of a contract between it and the Department of Supply and Services, on behalf of the Government of Canada, then the same shall be subject to General condition DSS 1026A or DSS 1026B, whichever is applicable, as issued by the Department of Supply and any supplemental General Conditions thereto and in applying same it is understood that « the Contractor » as therein referred to shall be applicable to the seller herein and «Her Majesty», «the Minister» or «the Inspector» to MPB. It is further understood that should this order be on a «cost plus» basis, the Provisions of Costing Memorandum DSS 1031 shall similarly apply.
