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Purchase Order Terms and Conditions

1. Terms. The terms and conditions of this Purchase Order, including those on the face hereof, represent the entire agreement between Seller and the Buyer “Pentagon Manufacturing Corporation; DBA Pentagon Security Shutters” (PENTAGON). Acceptance is limited to the terms and conditions of this Purchase Order, and no purported revisions of, additions to, or deletions from this Purchase Order shall be effective, whether in Sellers proposal, invoice, acknowledgment or otherwise, and no local, general or trade custom or usage, shall be deemed to effect any variation herein unless expressly agreed to in writing by an authorized representative of PENTAGON. The delivery of any goods or the furnishing of any services pursuant to this Purchase Order shall constitute acceptance by the Seller of this Purchase Order subject to, and in strict accordance with, all its terms and conditions. To the extent that terms appearing on the face of this Purchase Order are inconsistent with those set forth herein, the terms on the face shall govern. Any reference on the face of this Purchase Order to the Seller’s proposal shall be exclusive of any terms and conditions attached to or referred to therein.
2. Specifications. All goods and services furnished pursuant to this Purchase Order shall strictly conform to the specifications, descriptions, representations and warranties set forth in this Purchase Order. No change in this Purchase Order shall be made except upon written application to, and subsequent written authority of, PENTAGON.
3. Time and Place of Delivery; Buyer’s Inspection; Acceptance. Time is of the essence of this Purchase Order. Delivery will be made as specified on the face of this Purchase Order. PENTAGON reserves the right to reject goods and to cancel all or any portion of this Purchase Order in the event of failure to deliver at the time and place specified. PENTAGON’s acceptance of any part of a shipment not delivered as specified herein shall not obligate PENTAGON to accept the remainder of that shipment or any future shipments. All goods shall be received subject to PENTAGON’s inspection and acceptance, and subject to PENTAGON’s right to reject and return at the Sellers expense goods which fail to conform strictly to the requirements of this Purchase Order.
4. Extension of Time of Delivery. PENTAGON shall not be liable to the Seller for any failure of PENTAGON to take any delivery hereunder when due, if occasioned by any event beyond PENTAGON’s reasonable control, including without limitation fire, flood, earthquake, lightning or other acts of God; acts of, or compliance with the directions of, civil or military authority, including any federal, provincial, state or local agency or authority; wars; riots; insurrections; sabotage; embargo; strike or other labour dispute; interruption of or delay in transportation; shortage or failure of supply of materials; or equipment breakdown. At PENTAGON’s option, the time for delivery hereunder shall be extended to the extent of the delay occasioned by any such circumstance and the deliveries so omitted shall be made during the period of such extension.
5. Risk of Loss. Risk of loss of and title to any goods sold hereunder shall transfer to PENTAGON at the time and place of delivery, provided that risk of loss prior to actual receipt of the goods by PENTAGON shall nonetheless remain with the Seller.
6. Shipment. Goods must be shipped by the particular route, method and carrier as stated in this Purchase Order. In the event that the Seller fails to ship goods on or before any scheduled shipping date, PENTAGON shall have the right to specify a more rapid method of shipment than was specified originally and the Seller shall bear, at no additional cost to PENTAGON, any increased costs occasioned thereby.
7. Payment; Waiver of Liens. Payment will be made following receipt and acceptance of the goods and receipt, in proper form and substance, of all documentation required by this Purchase Order. The Seller shall furnish to PENTAGON any analysis or breakdown of the price as PENTAGON may reasonably request. This Purchase Order shall not be filled at prices higher than last quoted or charged by the Seller, except as expressly agreed by PENTAGON. As a condition to any payment hereunder, the Seller shall furnish to PENTAGON, upon request, an executed waiver of liens, charges and claims in form reasonably satisfactory to PENTAGON. The Seller agrees to indemnify, defend and hold harmless PENTAGON from and against any and all liens and encumbrances arising out of the Seller’s performance of this Purchase Order or rising out of any claim for payment by any labourer, subcontractor or supplier of the Seller.
8. The Seller’s Representations and Warranties. The Seller expressly represents and warrants that for a period of one year after PENTAGON’s acceptance of the goods or services hereunder, or for such longer period as may be expressly provided in this Purchase Order or under applicable law, all goods and services covered by this Purchase Order will: (a) strictly conform to the Seller’s specifications, drawings, samples and other written materials and descriptions, or, to the extent the goods were manufactured to PENTAGON’s specifications and drawings as set forth or referred to in this Purchase Order, such goods will strictly conform with those specifications and drawings; (b) be free from defects in design, material and workmanship; (c) be of merchantable quality and suitable for the particular purposes intended, whether expressed or reasonably implied; and (d) bear all warnings, labels, and markings required by applicable laws and regulations. In addition, the Seller represents and warrants that: (e) none of the goods covered hereby, to the extent they are subject to laws prohibiting adulteration or misbranding, is adulterated or misbranded within the meaning of such laws as of the date of delivery to PENTAGON; (f) all goods covered hereby may be introduced into interstate or interprovincial commerce without violation of applicable laws and regulations; (g) all services have been performed in a good and workmanlike manner; and (h) all goods and services furnished or rendered pursuant to this Purchase Order have been produced, sold, delivered or rendered to PENTAGON in compliance with all applicable laws and regulations, including those set forth in Section 13.
9. Buyer’s Remedies. PENTAGON’s acceptance of all or any part of the goods or services provided hereunder shall not be deemed a waiver of the failure of such goods or services to conform to all of the representations and warranties set forth in Section 8. PENTAGON retains the right to cancel any portion of the remaining order, to reject any portion of the goods or services delivered, or to revoke acceptance as to any portion of the goods or services accepted, and return such goods to the Seller and to recover the purchase price, any excess costs of cover, and damages, including manufacturing costs, costs of removal or recall, transportation and custodial expenses, injury to person or property incurred by PENTAGON, all in addition to PENTAGON’s other remedies under this Purchase Order or applicable law. If the Seller becomes insolvent or makes an assignment for the benefit of creditors, or files or has filed against it any petition in bankruptcy, PENTAGON shall have the right to cancel this Purchase Order immediately.
10. Patent, Copyrights, Trademarks. The Seller represents and warrants that the goods furnished under or used in connection with this Purchase Order (except those furnished according to PENTAGON’s specific design) and PENTAGON’s express or reasonably implied intended use thereof, do not and will not infringe any patent, copyright, trademark, trade secret or other proprietary right of any third party. If any claim, suit or proceeding is made or instituted against PENTAGON alleging any such infringement, the Seller shall indemnify, defend and hold PENTAGON harmless from and against any damages, liabilities, judgments, costs and expenses (including without limitation reasonable legal fees) it may incur in connection with any such claim, suit or proceeding. In the event that the goods or PENTAGON’s use is held in any suit or proceeding to constitute an infringement, or if the Seller determines that there is a substantial risk of a finding of such infringement, the Seller agrees, as appropriate, and at its expense to: (a) procure for PENTAGON, at no expense to PENTAGON, the right to continue using the goods, (b) replace the goods with equivalent goods that meet the requirements of this Purchase Order and that do not infringe any such rights, or (c) modify the goods so that they become non-infringing.
11. Indemnification. To the fullest extent permitted by law, the Seller agrees to indemnify, defend, and hold harmless PENTAGON, its affiliates, and their respective directors, officers, employees and agents (the “Indemnified Parties”) from and against all claims, demands, causes of action, losses, costs and expenses (including without limitation reasonable legal fees and costs of defense) (collectively, “Losses”) arising out of or incident to the Seller’s performance hereunder, or the presence of the Seller, its employees, agents or invitees (“Sellers Parties”) on PENTAGON’s premises, regardless of whether or not caused in part by the negligence or other fault of any Indemnified Party hereunder; provided that the Seller shall not be liable for Losses caused by the sole negligence or willful misconduct of any Indemnified Party.
12. Labour, Work and Services; Insurance. In supplying any services hereunder, the Seller represents and warrants that it is, and undertakes such performance as, an independent contractor, with sole responsibility for the payment of all federal and/or provincial and/or territorial health insurance, employment insurance, Canada Pension Plan payments and/or other similar taxes incurred hereunder. Any performance by the Seller under this Purchase Order on PENTAGON’s premises shall be in full compliance with PENTAGON’s safety and other rules and procedures and with all federal, provincial laws and regulations regarding workplace safety, including without limitation, laws pertaining to occupational safety and health. Prior to commencement of any services or work provided hereunder on PENTAGON’s premises and until the satisfactory completion thereof, the Seller shall, at its expense, maintain comprehensive general liability insurance with a limit not less than $2,000,000 on an “occurrence” basis (and not on a “claims made” basis).The Seller shall furnish to PENTAGON certificates of insurance showing the above coverages and providing for at least thirty (30) days’ prior written notice of cancellation or modification resulting in a reduction below the required minimum coverages and naming PENTAGON as an additional insured. If the Seller fails to furnish such certificates or maintain such insurance, PENTAGON shall have the right to cancel this Purchase Order immediately. The Seller, for itself and its insurers, hereby waives subrogation against PENTAGON, and the Seller agrees that, with respect to claims against PENTAGON arising out of the Seller’s performance hereunder, the Seller’s insurance shall be primary and PENTAGON’s insurance shall be excess. The Seller’s obligations to maintain such insurance shall in no way limit the liability or obligations assumed by the Seller hereunder.
13. Laws and Regulations. All goods furnished or services rendered pursuant to this Purchase Order shall be produced, sold, delivered, or rendered to PENTAGON in compliance with all applicable laws and regulations, including without limitation, all applicable environmental and occupational health and safety laws and regulations.
14. Termination. PENTAGON may at any time, without cause, terminate this Purchase Order in whole or in part upon written notice to the Seller. In such event, the Seller shall be entitled to receive payment, in proportion to the Purchase Order price or the value of the goods delivered, the services rendered, or the work performed prior to termination. Payment shall be the Seller’s sole remedy and the Seller hereby waives any and all other remedies. Upon PENTAGON’s request, the Seller shall preserve, protect and deliver to PENTAGON, at PENTAGON’s expense, materials on hand, work in progress, and completed work, both in its own and in its suppliers’ plants.
15. Assignment and Set-Off. The Seller shall not assign its rights or delegate its performance hereunder, nor any interest herein, without PENTAGON’s prior written consent and any attempted assignment or delegation without such consent shall be void. PENTAGON shall be entitled at all times to set-off any amount owing from the Seller to PENTAGON, whether under this Purchase Order or otherwise, against any amounts otherwise payable to the Seller.
16. Confidentiality. The Seller and its directors, officers, employees and agents shall not disclose to any third party any information pertaining to the goods provided or services performed hereunder, or pertaining to PENTAGON’s business or operations which the Seller obtains or has access to in connection herewith, without the prior written consent of PENTAGON or unless required by law.
17. No Waiver of Defaults. No failure by PENTAGON to enforce at any time any of the terms or conditions of this Purchase Order shall constitute a waiver thereof or in any way impair PENTAGON’s right at any time to avail itself of such remedies as it may have to enforce such terms or conditions. No waiver by PENTAGON hereunder will be effective unless in writing and signed by PENTAGON.
18. Survival; Remedies Cumulative. All agreements and representations of the Seller herein (including those regarding confidentiality, indemnification and warranties) shall survive delivery and final payment hereunder, or any earlier termination hereof. All the rights and remedies available to PENTAGON hereunder are in addition to, and not in limitation of, the rights and remedies otherwise available at law or in equity.
19. Severability. Any provision of this Purchase Order that is unenforceable in any jurisdiction shall be ineffective to the extent of such unenforceability (but shall be enforced to the maximum extent permissible) without invalidating the remaining provisions hereof.
20. Governing Law. This Purchase Order is subject to and shall be construed in accordance with the laws of Manitoba, and each of the parties hereby consents to the jurisdiction of the courts of Manitoba with respect to any dispute arising under this Purchase Order.