STANDARD TERMS AND CONDITIONS OF PURCHASE

DEFINITIONS:

Agreement: shall mean these Terms and Conditions together with the Order pursuant to which goods or services are being provided and all documents specifically referenced herein or in such Order.
Buyer: shall mean the Broan NuTone Canada ULC, Venmar Ventilation ULC. & Innergy Tech or all other parents or subsidiaries.
Deliverables: shall mean Goods and/or Services depending on the context.
Goods: shall mean materials or products described in the Order, the purchase of which is governed by the terms of this Agreement.
Order: shall mean a document, electronic or hard copy, issued by Buyer to Seller, in the form of a purchase order or release or similar document, referring to these Terms and Conditions and ordering Deliverables.
Seller: shall mean the individual, partnership, corporation or other entity contracting to furnish the Deliverables described in the Order, to whom the Order is issued by Buyer.
Services: shall mean services (whether or not ancillary to a sale of Goods) described in the Order, the purchase of which is governed by the terms of this Agreement.
Terms and Conditions: shall mean these Standard Terms and Conditions of Purchase.

1. SCOPE OF THE AGREEMENT
    
   • 1.1 This Agreement must be accepted as indicated in the Order or, if the Order does not provide, in writing by Seller within the time specified on the face of the Order or, if not so specified, within a reasonable time of Seller's receipt hereof.
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   • 1.2 If for any reason Seller fails to accept this Agreement in writing or as specified in the Order, the furnishing or commencement of any Services called for hereunder, (including preparation for manufacture), the shipment by Seller of any Goods (or lots thereof) ordered hereby, the acceptance of any payment by Seller hereunder, or any other conduct by Seller that recognizes the existence of a contact pertaining to the subject matter hereof, may, at Buyer's election, be treated as an unqualified acceptance by Seller of this Agreement and all the terms and conditions hereof.
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   • 1.3 Any terms or conditions proposed in Seller's acceptance or in any acknowledgment, invoice, or other form of Seller that add to, vary from, or conflict with the terms herein are hereby rejected. Any such proposed terms shall be void and the terms and conditions of this Agreement shall constitute the complete and exclusive statement of the terms and conditions of the contact between the parties and shall apply to each Deliverable received by Buyer from Seller hereunder, and such terms and conditions may hereafter be modified only by written instrument executed by an authorized representative of Buyer's Purchasing Department and an authorized representative of Seller.
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   • 1.4 If the Order is issued by Buyer in response to an offer by Seller and if any of the terms herein are additional to or different from any terms of such offer, then the issuance of the Order by Buyer shall constitute an acceptance of such offer subject to the express condition that Seller assents to all such additional and different terms herein and acknowledges that this Agreement constitutes the entire agreement between Buyer and Seller with respect to the subject matter hereof. Seller shall be deemed to have so assented and acknowledged (i) unless Seller notifies Buyer to the contrary in writing within ten (10) days of receipt of the relevant Order, or (ii) if Seller engages in any conduct that recognizes the existence of a contract including, without limitation, the furnishing or commencement of any Services called for hereunder, the shipment by Seller of any Goods ordered hereby, or the acceptance by Seller of any payment hereunder.

    

2. PRICE AND PAYMENT
    
   • 2.1 Payment terms: Payment terms will be net sixty (60) days following (i) receipt of conforming Deliverables delivered pursuant to Buyer's delivery requirements, and (ii) satisfaction of the invoicing requirements (electronic or otherwise) set forth in this Agreement.
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   • 2.2 Seller warrants that the agreed price for the Deliverables is not less favourable than that currently extended to any other buyer for the same or like Deliverables in similar quantifies.
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   • 2.3 Cash Discount: The cash discount period, if any, shall be computed as commencing with receipt by Buyer of invoice or of Deliverables, whichever is later.
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   • 2.4 Invoices: All invoices must contain the following information: Purchase order number, item number, description of items, quantities, unit prices, taxes and tax registration numbers, including the goods and services tax and provincial sales tax registration numbers. Payments of invoices shall not constitute acceptance of Deliverables and shall be subject to adjustment for shortages, defects and other failure of Seller to meet the requirements of this Agreement Buyer or any of its affiliated companies may set off or set up compensation for any amount owed by Seller or any of its affiliated companies to Buyer or any of its affiliated companies against any amount owed by Buyer hereunder.
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   • 2.5 Buyer shall not be obligated to pay for any Deliverable if the invoice for such Deliverable is received more than twelve (12) months after the receipt of the Deliverable.

    

3. DELIVERY
    
   • 3.1 Seller shall furnish the Deliverables called for by this Agreement in accordance with the delivery terms stated on the Order and if delivery dates are not stated, Seller shall offer Buyer its best delivery dates, subject to written acceptance by Buyer ("Delivery Dates"). Time is of the essence in Seller's performance of the Order, and Seller shall deliver Goods and perform Services by the Delivery Dates. Buyer may from time-to-time adjust its delivery schedules, and unless otherwise agreed in writing, such changes in schedule shall not affect the prices of the Deliverables ordered. Buyer may defer payment or return at Seller's expense, any Deliverables delivered in advance of the scheduled Delivery Date or in excess of the quantity specified for such items.
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   • 3.2 Unless otherwise expressly set forth in the Order, the delivery terms for Goods shall be: DDP Buyer's facility Incoterms 2000 provided that Seller shall be responsible for unloading and of any deterioration in the Goods of the Goods in accordance with Buyer's instructions and the risk of unloading will be that of Seller. As consistent with this delivery term, standard delivery instructions of the relevant procurement department apply and may be obtained through the relevant Buyer procurement representative. Title shall pass to Buyer on delivery of Goods as provided in this section.
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   • 3.3 Notice Of Delay: Whenever an actual or potential reason for delay (including but not limited to labor disputes), delays or threatens to delay the timely performance of the Order, Seller agrees to immediately notify Buyer in writing of all relevant information and, subject to the force majeure provision set forth herein, to make and pay for all necessary changes to fulfill its obligations under the Order and mitigate the potential impact of any such delay. Buyer has the right without incurring any liability to cancel any Deliverables affected by the delay in performance.
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   • 3.4 Cessation of Production: Seller shall give Buyer at least one hundred eighty (180) days prior written notice of the permanent discontinuance of production of Deliverables covered by the Order, provided however that compliance with this provision shall in no way relieve the Seller from its obligations under the Order.
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   • 3.5 Packing: Seller shall not charge separately for packaging, packing or boxing, unless Buyer has agreed to such charges in writing. Seller shall not combine in the same container, material that is to be delivered to different receiving locations.
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   • 3.6 Marking: Unless otherwise agreed in writing, exterior containers shall be marked with the following: (1) Address of Buyer site and Seller; (2) Order number; (3) Part number; (4) Special markings called for on the Order; (5) Quantity; and (6) (where applicable) Vendor Code or other vendor identification number. Every article of foreign origin (or its container), if any, imported into Canada and comprising part of the Deliverables shall be marked in accordance with all applicable marking laws, rules and regulations.
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   • 3.7 Bills of Lading: Bills of Lading shall reference the Order and Buyer's receiving address and purchase point of contact. When Buyer will be the importer of record, Seller will follow the instructions of Buyer's designated representative regarding completion of documentation used in the importation process and proper declaration of value. The original copy of the bill of lading with Seller's invoice shall be mailed to the location specified by Buyer's procurement contact, or if no location is specified by Buyer, to Buyer's applicable Accounts Payable Department or Accounts Payable service provider.
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   • 3.8 Packing Slip: Seller shall include an itemized packing slip with all shipments that will adequately identify the Goods shipped, including Buyer part number.
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   • 3.9 Shipping and Approved Carriers: On Orders where Buyer either pays for or reimburses Seller directly for shipping costs, Goods shall be shipped in accordance with routing instructions furnished by Buyer. If such instructions are not received, Goods shall be shipped via least expensive method sufficient to meet delivery requirements, but always through Buyer approved carriers.

    

4. INSPECTION/ACCEPTANCE/REJECTION
    
   • 4.1 All Deliverables being provided to Buyer's specifications covered by the Order may be inspected and tested by Buyer or its designee, at all reasonable times and places, including during manufacture. Seller shall provide, without additional charge, all reasonable facilities and assistance for such inspections and tests.
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   • 4.2 All inspection records relating to Deliverables covered by the Order and being manufactured to Buyer's specifications and/or drawings shall be available to Buyer during the performance of the Order and for such longer periods as specified by Buyer.
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   • 4.3 Deliverables furnished hereunder shall have zero defects, and Seller has the obligation to properly inspect such items prior to delivery to Buyer. If any Deliverables covered by the Order are defective or otherwise not in conformity with the requirements of the Order, Buyer may, (i) rescind the Order as to such Deliverables, and rescind the entire Agreement if such defect or non-conformity materially affects Buyer; (ii) accept such Deliverables at an equitable reduction in price, or (iii) reject such Deliverables and require the delivery of replacements. Deliveries of replacements shall be accompanied by a written notice specifying that such Deliverables are replacements. If Seller fails to deliver required replacements promptly, Buyer may (i) replace, obtain or correct such Deliverables and charge Seller the cost occasioned by Buyer thereby, and/or (ii) terminate the Order for cause.
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   • 4.4 Rejected Deliverables may be returned to Seller at Seller's cost.

    

5. CHANGE ORDERS
    
   • Buyer shall have the right at any time prior to the Delivery Date of Deliverables to make changes in drawings, designs, specifications, packaging, place of delivery, nature and duration of Services, and method of transportation, or require additional or diminished work. If any such changes cause an increase or decrease in the cost or the time required for the performance or otherwise affect any other provision of the Order, an equitable adjustment shall be made and the Order shall be modified in writing accordingly. Seller's claims for adjustment under this section shall be deemed waived unless asserted in writing (including the amount of the claim) and delivered to Buyer within thirty (30) days from the date Seller receives the change order.

    

6. WARRANTIES
    
   • 6.1 Seller expressly covenants and warrants that all Deliverables shall conform to the specifications, drawings, samples or other description upon which the Order is based, shall be suitable for the purpose intended, merchantable, free from defects in material and workmanship, and free from liens, hypothecs, claims or encumbrances of title, and that Deliverables of Seller's design will be free from defect in design. Inspection, test, acceptance or use of Deliverables furnished hereunder shall not affect Seller's obligation under this warranty, and such warranties shall survive inspection, test, acceptance and use. This warranty shall run to Buyer, its successors, assigns, customers, and the users of the Deliverables. Seller agrees to replace or correct defects of any Deliverables not conforming to the foregoing warranty promptly, without expense to Buyer, when notified of such nonconformity by Buyer. In the event of failure by Seller to correct defects in or replace nonconforming Deliverables promptly, Buyer, after reasonable notice to Seller, may make such correction or replace such Deliverables and charge Seller for the cost incurred by Buyer thereby. Seller further warrants that all work will be performed in a professional manner in accordance with the highest industry standards.
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   • 6.2 Product Support Obligation: Seller shall maintain, at its expense, the ability to, and shall, provide product support for the Deliverables for ten (10) years after the last Order is placed by Buyer under this Agreement.
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   • 6.3 Test Reports: Any Seller test reports or other test results related to the Deliverables shall be provided to Buyer as set forth in the terms of the Order, or if not specified in the Order terms, upon Buyer's request.

    

7. BUYER'S PROPERTY
    
   • All tools, equipment dies, gauges, models, drawings or other materials furnished by Buyer to Seller or made by Seller for the purpose of this Agreement or paid for by Buyer and all replacements thereof and materials attached thereto, shall be and remain the property of Buyer. All Buyer's property and, whenever applicable, each individual item thereof, will be plainly marked and otherwise adequately identified by Seller as being Buyer's property, will at Seller' s expense be safely stored (separate and apart from Seller's property whenever practicable) and maintained and will be kept free of all liens, hypothecs, claims, encumbrances and interests of third parties. Seller shall be responsible for loss of and damage to Buyer's property. Seller will not substitute any property for Buyer's property, will not deliver or make available to any third party any of Buyer's property or any property or goods developed, manufactured or created with the aid of any of Buyer's property and will not use any of Buyer's property or any property or goods manufactured, developed or created with the aid of Buyer's property, except in fulfilling the Orders of Buyer. Upon completion by Seller of the Order, or upon the written request of Buyer at any time, Seller will prepare all Buyer's property for shipment and deliver such property to Buyer in the same condition as originally received by Seller, reasonable wear and tear excepted. Buyer shall have the right, at all reasonable times, upon prior notice to enter Seller's premises to inspect any and all Buyer's property and any property or goods manufactured, developed or created with the aid of any Buyer's property. Should Seller be unable to deliver Goods pursuant to this Agreement, Buyer, by written notice, may vest in itself title to finished parts, raw materials or work in process associated with this Agreement, and Seller shall deliver all such material and other Buyer property to such location or locations outside its facility as may be designated by Buyer.

    

8. PROPRIETARY INFORMATION
    
   • 8.1 "Proprietary Information" shall for the purpose of this Agreement, mean all Intellectual Property and information, knowledge or data disclosed by Buyer or its affiliated companies to Seller (including, without limitation, financial, business, and product strategy; product specifications; product designs; internal procedures, studios, tests; and reports) regardless of whether disclosed in written, tangible, oral, visual or other form, and related to work performed or contemplated under this Agreement. If Buyer furnishes sample products, equipment, or other objects or material to Seller, the items so received shall be used and the information obtained from said items shall be treated as if they were Proprietary Information disclosed pursuant to this Agreement.
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   • 8.2 Proprietary information, including Proprietary Information received prior to the execution or approval of an Order, shall be used by Seller solely for the purposes of the current business relationship with Buyer or evaluating the feasibility of a future business relationship with Buyer and shall not be used for any other purpose, including, without limitation, to design, manufacture, repair or service equipment, to provide or sell services or to seek any government or third party approval to do such. Seller shall not disclose Proprietary Information to any third party without Buyer's express written consent. Seller may disclose Proprietary information to contact workers, consultants and agents of Seller who have a need to know and who have executed agreements with Seller obligating them to treat such Proprietary Information in a manner consistent with the terms of this Agreement.
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   • 8.3 Seller shall maintain all Proprietary Information received in strict confidence and shall safeguard the Proprietary Information by using all reasonable efforts to prevent its disclosure to or use by third parties other than as this Agreement permits. Seller shall not reverse engineer, reverse assemble, or decompile Proprietary Information.
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   • 8.4 Notwithstanding the foregoing provisions, this Agreement shall not restrict or affect Seller's rights to use or disclose information: (a) which is or may hereafter be in the public domain through no fault of Seller and through no improper act or omission of a third party ; or (b) which is received by Seller without restriction as to disclosure by Seller from a third party having a right to disclose it; or (c) which Seller can show, as reflected by its contemporaneous documents, was known to it prior to the disclosure by Buyer; or (d) which Seller independently develops without the use of the Proprietary Information as evidenced by its contemporaneous writings kept in the ordinary course of business.
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   • 8.5 If Seller is required to disclose Proprietary Information pursuant to governmental or judicial process, notice of such process shall be promptly provided to Buyer to allow Buyer to intercede in such process to contest such disclosure, and Seller will cooperate with Buyer to protect the Proprietary Information from further disclosure.
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   • 8.6 Upon expiration or termination of this Agreement for any reason whatsoever, Seller shall promptly return to Buyer or otherwise dispose of at Buyer's direction, all Proprietary Information.
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   • 8.7 Obligations in this section regarding Proprietary Information shall, with respect to each disclosure of Proprietary Information hereunder, continue for ten (10) years from the date of such disclosure or ten (10) years after termination of this Agreement whichever is later.

    

9. GENERAL INDEMNIFICATION
    
   • Seller shall indemnify, protect, defend and save the Buyer, its officers, directors, employees, representatives and agents and Buyer's affiliates and their officers and directors, employees, representatives and agents harmless from all suits, claims, losses, damages, injuries, costs or expenses (including attorneys' fees) arising out of, or caused by, Seller's performance hereof or any defects in the Deliverables.

    

10. INFRINGEMENT INDEMNIFICATION
     
    • 10.1 Seller shall indemnify and hold harmless Buyer, its officers, directors, employees, representatives and agents and Buyer's affiliates and their officers and directors, employees, representatives and agents and any third party indemnified by Buyer for any losses, costs, damages, liabilities, arising from any threatened, pending, completed or future claim, suit, action, proceeding, or investigation alleging that any manufacture, use, sale or offer for sale of the Deliverables under this Agreement infringe any patent, trademark, copyright, or alleging any other violation of an Intellectual Property right; except and to the extent that such alleged infringement arises directly from Seller's compliance with designs furnished by Buyer. In the event and to the extent Seller's compliance as set forth in this paragraph shall form the basis of any claim, suit or action for infringement against Seller, Buyer shall indemnify Seller as set forth below.
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    • 10.2 The party required to indemnify under the provisions hereof shall promptly assume and diligently conduct the entire defence of such alleged infringement at its own expense, provided that such party receives prompt written notice of such claim, suit, or action as such is commenced against the other party. Insofar as its interests are affected, the other party shall have the right, at its own expense and without releasing any obligation, liability, or undertaking of the party required to indemnify, to: (i) cooperate in the defense of such claim, and (ii) with permission of the court, to intervene in any such suit or action. Buyer shall have the right to reasonably reject counsel selected by Seller and the right to reject any settlement that would negatively impact Buyer as determined solely by Buyer. Buyer shall have the right to participate with Seller in determining the strategy to defend any such suit or action.
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    • 10.3 Notwithstanding any of the above provisions, Buyer shall have the further right, at its own election, to supersede Seller in the defence of any such alleged infringement and thereafter to assume and conduct the same according to Buyer's sole discretion, in which event Seller shall be released from its obligation to pay for attorneys' fees and court costs. Further, Seller, if requested in writing by Buyer, shall cooperate with Buyer in Buyer's defence of any alleged infringement claim.

     

11. COMPLIANCE WITH LAWS
     
    • 11.1 Seller shall comply at is own fees with all applicable federal, national, state, provincial, territorial, municipal and local laws, ordinances, rules, and regulations, and all applicable policies, directives and programs of governmental or regulatory authorities or where applicable, all relevant and applicable laws, ordinances, rules and regulations and all applicable policies, directives and programs of governmental or regulatory authorities, of the relevant territory or geographic area, which are not in conflict with the Governing Law, as set out in Section 13 hereof.
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    • 11.2 Gratuities: Seller has not and will not offer or give to any employee, agent or representative of Buyer any gratuity with a view toward securing any business from Buyer by influencing such person with respect to the terms, conditions, or performance of any contract with or order from Buyer. Any breach of this warranty shall be a material breach of each and every contract between Buyer and Seller.

     

12. FORCE MAJEURE / DISASTER RECOVERY
     
    • 12.1 Buyer shall not be liable for damages for any failure or delay of any Order resulting from causes beyond its reasonable control including, but not limited to, unforeseeable events such as acts of God, acts of Government, war, court order, riots, natural disasters, and labour strikes. Buyer may cancel without liability to Seller its purchase of any Deliverables affected by Seller's failure or delay in performance.

     

13. GOVERNING LAW
     
    • 13.1 The terms and conditions hereof shall be interpreted in accordance with and governed by the laws of the Province of Quebec without application of conflicts of law provisions thereof. Buyer may, but is not obligated to, bring any action or claim relating to or arising out of this Agreement in any court of competent jurisdiction in the Province of Ontario, and Seller hereby irrevocably consents to personal jurisdiction and venue in any such court Seller agrees to irrevocably waive any right to, and shall not, oppose any such Ontario action or proceeding on any jurisdictional basis, including forum non conveniens. Moreover, Seller shall not oppose the enforcement against it in any other jurisdiction of any judgment or order duly obtained from an Ontario court as contemplated by this Section.
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    • 13.2 Any action or claim by Seller with respect hereto shall also be brought in the appropriate court in the jurisdiction described above, if Buyer so elects. Accordingly, Seller shall give written notice to Buyer of any such intended action or claim, including the intended venue thereof, and shall not commence such action or claim outside of such jurisdiction if Buyer, within thirty (30) days from receipt thereof, makes its election as aforesaid. If Buyer and Seller mutually agree to participate in alternative dispute resolution, Seller agrees that all alternative dispute resolution proceedings shall take place in Ontario.
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    • 13.3 The parties specifically disclaim application to this Order of the United Nations Convention on Contracts for the international Sale of Goods.

     

14. MISCELLANEOUS
     
    • 14.1 Waiver: Buyer's failure to seek a remedy for any breach by Seller or Buyer's failure to insist on performance of any of the terms or conditions herein or to exercise any right or privilege hereunder shall not thereafter be deemed a waiver for any such terms, conditions, rights or privileges or any other terms, conditions, or privileges whether of the same or similar type. Acceptance of any Deliverables or payment therefor shall not waive any breach.
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    • 14.2 Remedies: Seller shall be liable for any damages incurred by Buyer as a result of Seller's acts or omissions under this Agreement. The rights and remedies herein reserved to Buyer shall be cumulative and additional to any other or further rights and remedies provided in law or equity.
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    • 14.3 Partial Invalidity: If in any instance any provision of this Agreement shall be determined to be invalid or unenforceable under any applicable law, such provision shall not apply in such instance, but the remaining provisions shall be given effect in accordance with their terms unless the purposes of the Agreement can no longer be preserved by doing so.