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This Purchase Order confirms the agreement between the Purchase and the person to whom this Purchase Order is addressed ( the “Seller”) to purchase the products and/or services listed on the face of this Purchase Order ( the “Goods and/or Services) on the following terms and conditions. This Purchase Order shall constitute the complete agreement between the Purchase and the Seller. The Purchase shall not be bound by any alterations, changes, variations or additions to the terms and conditions of this Purchase Order unless expressly agreed to in writing by the Purchaser. If the following terms and conditions conflict with the terms set forth on the face of this Purchase Order, the terms on the face shall prevail. For greater certainty, it is agreed that the terms and conditions of this Purchase Order shall supersede any terms and conditions appearing on the Seller’s waybill, acknowledgment of receipt of this Purchase Order or other forms or documentation.

At any time Purchase may request changes in the description, drawings, specifications, service requirements, quantities, delivery schedules or shipping and packing instructions relating to the Goods and/or Services by sending to the Seller a Purchase Order revision. Seller shall have five (5) days from the date of receipt of such Purchase Order revision to notify the Purchaser if it does not accept such changes. If the Purchaser does not receive the notification within such five (5) day period, Seller shall be deemed to have accepted the Purchase Order revision. If the Seller advises the Purchaser that it does not accept any or all of the changes requested by the Purchaser within such five (5) day period, the Purchaser may terminate the Purchase Order in accordance with Article 11 of this Purchase Order. If the Purchaser does not terminate this Purchase Order pursuant to this Article 11, the Purchase Order shall remain in full force and effect, unamended.

The Seller shall package and protect all Goods against damage and climatic conditions. Goods requiring special precautions during shipping and storage shall be clearly marked as requiring special precautions on the outside of the shipping containers. No additional charges will be paid by Purchaser for boxing, crating or any other packaging unless it is so indicated by the Purchaser on the face of this Purchaser Order.
The Seller shall clearly and indelibly mark all packages, boxes, crates. The marking shall provide at least the following information:

Packing slips listing the Goods in the package shall accompany each shipment showing the quantity and description of the Goods, the Purchase Order number, the item number(s), the part number(s), where applicable, and the full address of the consignee as shown on the Purchase Order. Bills of lading shall clearly identify the Purchase Order number, the item number(s) and the part number (s).
If the Seller is of U.S. or international origin, then the Seller shall ensure each shipment is complete with all required customs documentation. This shall include, without limitation, the following: Canada Customs invoice and/or Commercial Invoice, Certificate of Origin, Free Trade Certificate (NAFTA), if applicable, and Bill of Lading. All documentation must reference the Purchaser’s customs broker identified on the face of this Purchase Order.

Time is of the essence with respect to this Purchase Order. If the Seller fails to deliver the Goods and/or Services by the delivery date (as set forth on the face of this Purchase Order) in the quantities or of the nature specified on the face of this Purchase Order, the Purchaser has the right to immediately terminate this Purchase Order, either in whole or in part, to refuse to accept delivery of any Goods and/or Services delivered and to return, at the Seller’s expense, all shipped Goods to the Seller. The seller shall indemnify the Purchaser against any loss resulting from such default or delay provided that the Seller shall not be liable for default or delay arising solely from causes beyond its reasonable control and without its negligence, and provided that notice of such unavoidable delay is promptly given to the Purchaser in writing.

The Purchase Order number, item number(s) and Rogers part number(s) shall be clearly shown on all invoices. Invoices shall be submitted in a form which corresponds to the items listed on the face of the Purchase Order. Applicable Federal and Provincial sales and goods and services taxes (even if included in the price) shall be separately identified on each invoice. Invoices shall be forwarded in duplicate to the address shown on the face of this Purchase Order. If costs for any transportation, freight or insurance charges are prepaid on the Purchaser’s behalf, these costs shall be shown separately on the invoice. Copies of the invoices for such costs must accompany the Seller’s invoices.

Without limiting any warranties that may otherwise be associated with the Goods and/or Services, including, without limitation, implied warranties and warranties stated in any of the Seller’s documentation in favour of Purchaser, the Seller expressly warrants that: (i) each item to be supplied pursuant to this Purchase Order will conform to all pertinent drawings, operational, functional, and other representations respecting functionality for the Goods and with any samples made available to the Purchaser by the Seller, if any, and will be free from defects in design, material and workmanship under conditions of normal use and service for a period equal to the greater of the manufacturer’s stated warranty or one year from the later of the date of acceptance of the Goods by the Purchaser and first use of the Goods by the Purchaser; (ii) all Services shall be provided in a good and workmanlike manner in accordance with the highest industry standards and shall be warranted for a period equal to one year from the date of acceptance of the Services by the Purchaser; (iii) all Goods and/or Services being purchased by the Purchaser under this Purchase Order shall be free and clear of any and all routines or devices that are constructed with the intent to adversely interfere with its use or interfere with, corrupt or destroy data including without limitation, any time locks, keys, bombs, trojan horses, viruses or other harmful or debilitating features; (iv) all Goods and/or Services being purchased by the Purchaser under this Purchase Order shall be free and clear of any and all encumbrances of whatsoever kind and nature; (v) the Goods and/or Services covered by this Purchase Order will not infringe any Canadian or foreign patents, trademarks, industrial design, copyright or similar rights; (vi) neither the Goods and/or Services nor any component part thereof is subject to any import quota, restriction, rule or regulation preventing or forbidding the importation or sale of same or any component part thereof; and (vii) all representations and warranties are transferable to the ultimate consumer and that all warranties are completely effective and enforceable by Purchaser and/or the ultimate consumer. Seller acknowledges that Purchaser has specifically relied upon the representations and warranties contained in this Purchase Order. All Goods and Services shall be subject to inspection and acceptance by the Purchaser and, notwithstanding prior payment or that the Goods and Services may have been supplied F.O.B. the Seller’s plant, the Purchaser may, at its option and without limiting any of Purchaser’s other rights hereunder: (i) reject and return for immediate credit or refund any Goods and/or Services which, on inspection, are found to be defective or otherwise unacceptable; (ii) require Seller to immediately repair, replace or repeat any Goods and/or Services which, on inspection, are found to be defective or otherwise unacceptable; or (iii) terminate all or part of this Purchase Order. Any storekeeper’s or other receiver’s receipt for any Goods or Services shall not constitute acceptance of such Goods or Services by the Purchaser. The Seller shall pay incoming and outgoing transportation charges in respect of any defective or otherwise unacceptable Goods returned by the Purchaser. Acceptance of any Goods or Services by the Purchaser, its agents or employees, or failure by the Purchaser, its agents or employees to inspect any Goods or Services will not limit the Seller’s warranties or conditions or constitute a waiver of any rights of the Purchaser under this Purchase Order. No review or approval of the Seller’s data, inspection, acceptance of, or payment by the Purchaser for any Goods or Services described herein shall relieve or release the Seller from any obligations of liabilities.

Title to and risk of loss or damage of the Goods shall pass to the Purchaser after receipt, inspection and acceptance in accordance with section 6 hereof. Until such time that the Goods are accepted by the Purchaser and after such time that the Goods are rejected, if any, the Goods shall be held by Purchaser at the Seller’s sole risk and expense. In all circumstances, any loss or damage to the Goods which results from Seller’s improper packaging or crating shall be the responsibility of the Seller. Upon acceptance by Purchaser, Seller shall assign to Purchase all rights, title and interest in and to all Goods and/or Services, including all material and component parts thereof, provided by Seller as part of the Goods and/or Services or related, either directly or indirectly, to the Goods and/or Services. The Seller further agrees to co-operate fully at all times with respect to signing further documents and doing such acts and other things reasonably required by the Purchaser to confirm such transfer of ownership or rights, including intellectual property rights. The Seller waives, on behalf of itself and its employees, all moral rights which the Seller may have in the Goods and/or Services.

The Seller shall defend, indemnify and save harmless Purchaser, its employees, officers, directors, shareholders and agents from and against any allegations, claims, costs, damages, expenses, suits or proceedings, including legal fees, direct, indirect, third party, special and consequential damages (it being acknowledged by each of the parties that for the purposes of this Article 8 only the Purchaser is contracting as agent on behalf of its directors, officers, employees, contractors agents) arising out of:

any injury to persons (including injuries resulting in death) or loss of or damage to property of others which may be or be alleged to be caused by or suffered as a result of the provision of all part of the Goods and/or Services pursuant to this Purchase Order;
any encumbrances upon or in respect of any materials, parts, works-in-process or finished Goods or Services furnished to, or in respect of which payment has been made by Purchaser;
any claim that the Goods, Services or any part thereof infringes any patent, copyright, trademark, trade secret or other intellectual property right or contractual right or obligation;
any breach by the Seller of any of the terms, conditions, warranties and obligations under the present Purchase Order with respect to the Goods or Services; and
any product liability claim (whether founded in contract or tort) relating to the Goods or Services.

Seller shall notify the Purchaser in writing of any such potential liability and, upon Purchaser’s request, the Seller shall have complete authority and receive complete information required for the Seller’s defense. The Seller shall notify and co-operate with Purchaser throughout any such proceeding. At Purchaser’s request, Purchaser will have complete authority to participate in any such proceedings and the Seller will notify and co-operate with Purchaser throughout such participation by Purchaser. The Seller will pay all damages and costs awarded against Purchaser.

In the event that the use of any part of the Goods or Services by Purchaser is threatened by court action or injunction, the Seller will, in addition to its own obligations under this Agreement and at its own expense, either:

obtain for Purchaser the right to continue using the Goods and/or Services as permitted under this Purchaser Order;
modify the Goods and/or Services to make them non-infringing without materially affecting or altering its functionality; or
if Purchaser consents and if neither of the foregoing alternatives is available, provide notice of termination of all or a part of this Purchase Order and refund to Purchaser all amounts paid to the Seller under this Purchase Order which are attributable to the part of the Purchase Order terminated.

The Seller shall hold in trust, keep confidential and not disclose to others or use in any way confidential business, technical, customer or other information that the Seller may acquire concerning the Purchaser, or in connection with the Purchase Order and shall return to the Purchaser all documents provided by the Purchaser hereunder upon Purchaser’s request or termination of this Purchase Order.

The Seller agrees that it has not sold and shall not sell Goods and/or Services: (a) in quantities similar to quantities specified on the face of this Purchase Order to other customers for pricing terms (including, without limitation, price, prompt payment discounts and rebates) (the “Pricing Terms”) lower than that charged to the Purchaser; or (b) in quantities similar to the total quantities ordered by the Purchaser and its affiliated companies on an annualized commitment basis to other customers for Pricing Terms lower than that charged to the Purchaser and its affiliates cumulatively. If Seller sells any Goods and/or Services to such other customers on lower Pricing Terms, the Seller shall credit the Purchaser for the difference representing the overpayment or, if no further Purchase Orders are issued by the Purchaser within one month following entitlement to the more favourable terms, the Seller shall immediately thereafter provide the Purchaser with payment by way of cheque drawn on a bank acceptable to Purchaser representing the overpayment. If Pricing Terms are not stated herein, it is agreed that the Goods and/or Services shall be supplied on the Pricing Terms quoted to or paid by the Purchaser or the prevailing market Pricing Terms, whichever are more favourable to Purchaser. At least once annually, Seller shall provide Purchaser with a certificate signed by Seller’s Chief Financial Officer verifying Seller’s compliance with this Section 10. Purchaser may audit or cause a third party audit of the books and records of Seller, upon forty-eight (48) hours written notice to the Contractor, on order to verify Seller’s compliance with this Section 10.

the Seller enters into liquidation, whether compulsory or voluntarily; or a receiver is appointed of all or any part of the Seller’s assets; or the Seller becomes or is reasonably apprehended to become bankrupt or insolvent; or the Seller enters into any arrangement with its creditors; or the Seller takes or suffers any similar action in consequence of debt; or the Seller becomes unable to pay its debts as they fall due; or
the Seller is in breach of its obligations under this Purchase Order and has failed to remedy such breach within a reasonable time of having been notified of such breach.

If the Purchase Order is terminated by the Purchaser for either of (a) or (b) above, the Purchaser may, in addition to any remedies it may have at law or in equity, elect to purchase from the Seller any portion of the Goods and/or Services which are then available for delivery at a pro-rated portion of the price specified on the face of this Purchase Order. In addition, the Purchaser may, in such circumstances, elect to purchase from the Seller any or all components of Goods and/or Services which are not then complete at a price which will permit the Seller to recover its actual costs and a reasonable allowance for profit on such components.
Notwithstanding the foregoing, the Purchaser shall have the right, in its sole discretion, to cancel this Purchase Order in whole or in part at any time on written notice to the Seller. On the date of such cancellation stated in said notice, the Seller shall discontinue all work pertaining to the Purchase Order, shall accept no additional orders, and shall preserve and protect materials on hand purchased for or committed to this Purchase Order, work in progress and completed work both in its own and its supplier’s plants pending the Purchaser’s instructions, and shall dispose of same in accordance with the Purchaser’s instructions.
In the event the Purchaser cancels this Purchaser Order its sole discretion, total payments to the Seller will be equal to (i) payment of that percentage of the Purchase Order price which corresponds to the percentage of work satisfactorily performed and completed to the date of cancellation; and (ii) cancellation charges, if any, on sub-orders place by the Seller, but only if such cancellation charges were approved in writing by the Purchaser at the time the sub-order was placed; less (iii) any proceeds of disposition of work and materials on hand; less (iv) amounts previously paid by the Purchaser to the Seller.

Any packing slips, bills of lading, invoices or any other documents required under this Purchase Order may be in either the English or French language.

The Seller shall not assign or subcontract any portion of the Purchase Order without the prior written consent of the Purchaser.

This Agreement shall be exclusively governed by, and construed in accordance with, the laws of the Province of Ontario and the laws of Canada applicable therein. The Seller hereby irrevocably attorns to the exclusive jurisdiction of the courts of Ontario to adjudicate any dispute arising out of this Agreement. The Seller hereby: (i) waives trial by jury; and (ii) waives any right, claim, or entitlement to any punitive or exemplary damages whatsoever.

Any notice, waiver or other document of communication required or permitted to be given to any party under this Purchase Order shall be validly given only if in writing and if delivered personally (which shall include delivery by courier, by fax, or other agent) to that party at the address on the reverse hereof.

Notwithstanding any other provision of this Purchase Order, all liability of the Purchaser in any connection with this Purchase Order shall be strictly limited to direct liability in the aggregate amount, for all such occurrences, of the purchase price of the Goods on the face of this Purchase Order, and the Purchaser shall not be liable for any other direct damages whatsoever, nor shall the Purchaser be liable for any indirect, special, consequential or third party damages, harm or liability whatsoever, including loss of profit, regardless of whether or not such damages, harm or liability arises in contract, tort, equity, or otherwise and regardless of whether or not such damages were foreseeable.

The following provisions of this Purchase Order shall survive any termination of this Purchase Order for any reason whatsoever: Articles 6, 7, 8, 9, 10, 14, 16 and this section 17.

The Seller shall comply with all laws relevant to the performance and execution of its obligations under this Purchase Order and shall comply with all Federal and Provincial laws relating to the packaging, labelling and transportation of Goods (including, without limitation, hazardous materials).

No Waiver by the Purchaser of any provision of this Purchase Order shall: (a) be binding unless made in writing by the Purchaser specifically referring to this Purchase Order and executed and delivered by the Purchaser; (b) be a waiver of any other provision hereof (whether or not similar); or (c) constitute a continuing waiver unless expressly stated to be so.

The parties acknowledge and agree that any rule of construction to the effect that any ambiguity is to be resolved against the drafting party shall not be applicable in the interpretation of this Purchase Order.

This Purchase Order is the entire agreement between the parties and supersedes all prior discussions or negotiations with respect to the subject matter of this Purchase Order. If the Goods and/or Services described in this Purchase Order are covered by tendering documents, to the extent that there is any distinction between the tendering documents and this Purchase Order, then the terms and conditions stated in this Purchase Order shall govern.

Vendor represents and warrants that all Products or Services, when used in accordance with their associated documentation and as intended by this Agreement, correctly process, provide and/or receive date data within and between the 20th and 21st centuries, provided that all products used with the Products or Services properly exchange date data with such Products or Services.