These Terms and Conditions of purchase are referred to herein as the “Terms.” Each contract document between (the “Buyer”) and Proto3000 Inc. (hereinafter defined as the “Seller”) that incorporates these Terms, together with the Terms and any schedules, exhibits or other documents incorporated by reference in such contract document, is referred to below as the “Contract.” Each product or service in the Contract is referred to below as a “Product.” The Contract contains the entire and exclusive agreement between the Parties regarding the sale and purchase of each Product referenced in the Contract. Unless otherwise expressly provided in the contract document, if any term, condition or other provision contained in any schedule, exhibit or other document expressly incorporated by reference in the contract document is in any way inconsistent with or creates an ambiguity concerning the terms of the contract document or these Terms, the contract document and these Terms, in that order, shall control. No addition to, or waiver, alteration or modification of the Contract shall be valid unless made in writing signed by an authorized representative of each Party specifically referring to the Contract. Acceptance or use by Buyer of a shipment of Product after the inception of the term specified in the Contract, but before the Contract is signed by either Party or before Buyer otherwise makes a definite and timely act or expression of acceptance, shall constitute acceptance by both Parties of the terms of the Contract as to that shipment but shall not in itself constitute an acceptance of the final written expression of the Contract with respect to future shipments.



Unless otherwise indicated, delivery of Products shall be DDP (Incoterms) at Buyer’s location. Risk of loss or damage to, and responsibility for, the Products shall pass to Buyer upon delivery to carrier or Buyer at designated location. No shipment shall be diverted or reconsigned without the Seller’s prior written consent. Unless otherwise agreed by the Parties, Seller shall select means of transportation and routing.



Unless otherwise noted, payment for the full amount of each invoice shall be made to Seller based on the terms granted on the invoice. If no term is stated, payment must be made no more than 7 days after receipt of invoice and before receipt of the Products or services. All invoices for Products and services are in the currency noted on the Contract document and do not include taxes. If Seller is required to pay or charge any sales, use, value-added or other taxes based on transactions under these Terms  (other than taxes based on Seller’s income), such taxes shall be billed to and paid by Buyer. All claims by Buyer shall be made by written notice to Seller.



If either Buyer or Seller (the “Defaulting Party”) breaches any term of the Contract or the Terms, or any other contractual obligation in favour of the other (the “Other Party”), (a) Other Party may choose to defer any or all further shipments or other performance under the Contract and performance of any other contractual obligation in favour of the Defaulting Party until the Defaulting Party cures its breach, and (b) Other Party may, by delivery of ten (10) days written notice to the Defaulting Party describing the breach, terminate the Contract and any other related contractual agreement with the Defaulting Party; provided that the Defaulting Party shall have ten (10) days after receipt of the written notice to remedy the breach in full and provide Other Party with evidence of the remedy, failing which the Contract (and any other related contractual obligations referenced in Other Party’s notice of breach) shall be automatically terminated at the end of the said ten ( 10) days without further notice. In the event of a termination, all outstanding payment obligations or other indebtedness of the Defaulting Party to Other Party shall be due and payable to Other Party no later than fifteen (15) days after delivery of notice of termination, subject to the right of reinstatement. Notwithstanding any provision in the Contract, Seller shall have no obligation to pay any rebate, issue any credit or make any other payment of any kind to Buyer unless Buyer is fully in compliance with its payment and other obligations under the Contract and any other contractual obligation in favour of Seller. In addition, in the event that the Defaulting Party is in default hereunder and fails to make any payment when due, Other Party shall have the right to offset any and all outstanding payment obligations or other indebtedness that Other Party or any of its affiliated may owe the Defaulting Party.



Notwithstanding anything in this Contract to the contrary, if this Contract covers Products or materials which are manufactured especially for Buyer and the Contract is terminated or an order hereunder cancelled, Buyer will, at Seller’s election, take delivery of and make payment for such Products or material as has been manufactured and such as is in the process of being manufactured on the date notice of such termination of cancellation is received by Seller.



Failure of Seller to make, or Buyer to take, any one or more deliveries when due, if caused by (a) fire, storm, flood, strike, lockout, accident, act of war or terrorism, riot, global, or regional pandemic, civil commotion, circumstances related to the Covid-19 pandemic, embargo or other similar circumstances, (b) any regulation, law, or restriction of any governmental department, commission, board, court, or other instrumentality of any supranational organization of sovereign states, country, state, province, territory, commonwealth, municipality, or other political sub division thereof (a “Governmental Authority”), any seizure or requisition of Product by any Governmental Authority, or any compliance with a demand or request for such Product for purposes of national or supranational defense, (c) inability of Seller to obtain any required raw material, energy source, equipment, labor or transportation, at prices and on terms deemed (by Seller) to be practicable, from Seller’s usual sources of supply or (d) any other cause or contingency beyond the reasonable control of that Party ( whether or not of the same kind or nature as the causes or contingencies above enumerated), shall not subject the Party failing to perform to any liability to the other during the period such inability to make or take delivery shall exist. Quantities so affected may, at the option of either Party, be eliminated from the Contract without liability, but the Contract shall remain otherwise unaffected.



Seller warrants to Buyer, its successors, assigns, that, upon delivery, and during the entire Warranty Period specified below, all Products furnished (including all replacement or corrected Products or components that Seller furnishes under this warranty) will (a) be free from defects in material, workmanship, and design (except if the design has been approved by Buyer), (b) conform to applicable drawings, designs, quality control plans, specifications and samples and other descriptions furnished or specified by Buyer, (c) be merchantable, (d) be fit for the known purposes as disclosed in writing to the Seller (to the extent the Products are not of a detailed design furnished by Buyer) and operate as intended, (e) be free and clear of any and all liens, restrictions, reservations, security interests or encumbrances.

The Warranty Period will be 10 days from the date of delivery in respect of all warranties. These warranties will survive any delivery, inspection, acceptance, or payment by Buyer for the entire Warranty Period. Claims for breach of warranty must be submitted in writing during the Warranty Period. 

Products that meet the preceding warranties are collectively called “conforming Products.” If conforming Products are not furnished or are delivered late, then Buyer may, at its election and in addition to any other rights or remedies it may have at law or in equity, have the Products repaired, replaced, or corrected, at Seller’s expense during the Warranty Period only.



Seller will, at its expense, defend and indemnify Buyer and its subsidiaries, affiliates and agents, and their respective officers, directors, shareholders, and employees(collectively “Indemnitees”) from and against any and all loss, cost, expense, damage, claim, demand or liability, including reasonable attorney and professional fees and costs and the cost of settlement, compromise, judgment or verdict incurred by or demanded of an Indemnitee arising out of, resulting from or occurring in connection with Seller’s gross negligence or willful misconduct. In no event will Seller enter into any settlement without Buyer’s prior written consent, which will not be unreasonably withheld. Buyer will, at its expense, defend and indemnify Seller and its subsidiaries, affiliates and agents, and their respective officers, directors, shareholders, and employees for claims by third parties relating to the use of the Product in any product of the Buyer under extended product liability as well as for the costs of any recall action which have not been proven to be the cause of the Product as delivered by the Seller. 



In no event shall Seller be held liable for any special, indirect, incidental, punitive or consequential damages of any kind, including, without limitation, loss of use, loss of profits or revenues or other economic loss whatsoever. SELLER’S AGGREGATE LIABILITY, IN RESPECT OF THE SALE OF THE PRODUCTS TO BUYER, SHALL NOT EXCEED THE AMOUNT OF THE ORDER OF THE PRODUCTS HAVING GIVEN RISE TO THE CLAIM.



Confidential Information. Each Party to this Agreement hereby covenants and agrees that in connection with these Terms, they may receive, or otherwise acquire information that is proprietary and/or confidential to the other Party, including information relating to products, services and business affairs, or other information which is of a secret or confidential nature (“Confidential Information”). Neither Party will, directly or indirectly, disclose to any other person or use at any time during or after the term of this Agreement, and for a period of two (2) years after the completion of the sale of the Products, any Confidential Information without first obtaining the prior written authorization of the other Party (the “Non-Disclosing Party”).



Nothing in these Terms will be construed to place Seller and Buyer in an agency, employment, franchise, joint venture or partnership relationship. Neither Party has the authority to obligate or bind the other in any manner, and nothing contained in these Terms creates rights of any kind for any third parties and neither Party will make any representation to the contrary. Seller will perform its obligations under these Terms as an independent contractor. Seller retains the right to exercise full control of, supervision over and responsibility for Seller’s performance hereunder, including the employment, direction, compensation and discharge of Seller’s personnel, as well as compliance with workers’ compensation, unemployment, disability insurance, social security, withholding and all other laws, rules, codes, regulations and ordinances governing such matters.



All Notices relating to these Terms must be in writing. Notices to the Parties will be sent to their respective addresses appearing on the face of these Terms. Notices must be delivered personally, by recognized overnight courier, mailed certified first class mail postage prepaid, by facsimile transmission to the facsimile number provided by Buyer or Seller respectively; or sent by electronic transmission (email) with proof of delivery. Any Notice will be deemed given on the date delivered if delivered personally; three business days after being placed in the mail as specified; or upon confirmation receipt that it was transmitted satisfactorily if transmitted by facsimile or electronic transmission.



The contract shall bind and inure to the benefit of the successors and assigns of the respective Parties. In order that the Parties may fully exercise their rights and perform their obligations arising under the Contract or these Terms, any provisions of the Contract or the Terms that are required to ensure such exercise or performance (including any obligation accrued as of the termination date) shall survive the termination of the Contract or the Terms.



These Terms shall take effect and be construed in accordance with the laws of the Province of Ontario. Failure of either Party to exercise any right it has under the Contract on one occasion shall not operate or be construed as a waiver by such Party of its right to exercise the same right on another occasion or any other rights it has.  Any waiver must be in a writing signed by the waiving Party. In the event that any provision of the Contract shall be adjudicated to be invalid or unenforceable, it is the Parties’ intent that the remaining provisions of these Terms will remain in full force and effect, and the affected provision or portion thereof will be deemed modified so that it is enforceable to the maximum extent permissible to reflect as closely as possible the economic intentions of the Parties as evidenced from the provisions of the Contract. Nothing in the Contract shall be construed as creating any direct or beneficial right in or on behalf of any third party.



The terms and conditions in this “General Terms And Conditions of Purchase by Proto3000 Inc. Customers” shall supersede all prior oral or written agreements, understandings, or arrangements between the Parties relating to any Contracts (past or present) and shall prevail in the event of any inconsistency or conflict between the terms and conditions hereof and the terms and conditions of any previous version of the “General Terms And Conditions of Purchase by Proto3000 Inc. Customers”.