The following define The Woodbridge Group’s Customer Conditions of Sale.
Effective: February 1, 2016
1. Governing Conditions of Sale
These conditions of sale (the “Terms”) apply to all sales of products and/or services (“Products” and/or “Services”), and all quotations, invoices, agreements and other documents (collectively “Seller’s Documents”) from Woodbridge Foam Corporation and its subsidiaries and related entities (collectively, the “Seller”) and to all purchase orders from Seller’s customer (“Buyer”), and are the only terms and conditions applicable to the sale of Seller’s Products and/or Services. These Terms and the Seller’s Documents comprise the entire agreement between the parties (collectively, the “Contract”). Buyer accepts these Terms by accepting Seller’s quotation, by sending a purchase order in response to a quotation, or by instructing Seller to ship Products or provide Services. Purchase orders if accepted by Seller are accepted subject to the Terms set forth herein. SELLER HEREBY REJECTS ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS PROPOSED BY BUYER, WHETHER OR NOT CONTAINED IN ANY OF BUYER’S BUSINESS FORMS OR ON BUYER’S WEBSITE, AND SUCH ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS SHALL BE VOID AND WILL NOT BECOME PART OF THE CONTRACT UNLESS MODIFIED IN ACCORDANCE WITH SECTION 13. In addition, no site usage agreement or any click through agreement on a website will have any applicability or binding effect whether or not Seller clicks on an “ok”, “I accept,” or similar acknowledgment.
Prices are subject to change if a raw material, component, or service provider (including, without limitation, freight) raises its prices, or imposes a surcharge on Seller. In the event of an increase in cost, Seller reserves the right to increase prices and/or impose a surcharge, and Buyer agrees to accept such price increases or surcharge unless the parties reach a different arrangement. Any tax, duty or government charge now in effect or increase of the same payable by Seller because of the production, sale or delivery of the Products and/or Services shall be added to the price.
3. Quantity and Duration
Unless otherwise expressly stated in the Seller’s Documents, Seller shall supply 100% of Buyer’s requirements of the Products and/or Services and prices provided are in exchange for the Buyer’s commitment to purchase Products and/or Services for the life of the program (if the supply of Products and/or Services is related to a program). If annual Product volumes deviate from the volume targets by +/- 15% for any 12 month period, Product prices will be adjusted.
4. Payment & Credit
Unless otherwise expressly stated in the Seller’s Documents, terms of payment are 30 days net from Delivery. “Delivery” means FOB Seller facility dock. Under no circumstances will Buyer have the right of set-off. If payment on any Delivery is delayed or if the amount of credit granted is exceeded, without prejudice to any claim for damages to which Seller may be entitled, Seller reserves the right to take any and all of the following actions: (a) any actions allowable under law; (b) withhold Delivery of Products
and/or Services; (c) institute new payment terms; (d) require financial information and/or satisfactory security from the Buyer for due performance of its obligations; and/or (e) cancel all or part of the Contract. In addition, Buyer agrees to pay interest on overdue invoices at the rate of 1.5% per month, but not higher than the highest rate permitted by law. If Buyer fails to make any payment as required, Buyer agrees to indemnify Seller for all costs and expenses, including reasonable attorney fees, court costs, and associated expenses incurred by Seller. Time of payment is of the essence.
5. Delivery and Risk of Loss
Seller shall not maintain an inventory of the Products and, unless otherwise expressly stated in the Seller’s Documents, prices are based on FOB Seller facility dock and do not include the cost of containers or packaging. When arrangements have been made between the parties for specific delivery dates, any delivery made within 10 days after the dates specified shall constitute a good delivery. Risk of loss or damage passes to Buyer upon Delivery. Title to such Products shall not pass until they have been fully paid for by Buyer. Container quantities/design and Buyer supplied packaging must be reviewed and agreed by Seller. Logistic assumptions used to determine container quantities must be reviewed and agreed by Seller.
6. Pre-Sourced/Directed Suppliers
In the case of pre-sourced/directed suppliers, unless otherwise expressly stated in the Seller’s Documents, Seller will order and stock any pre-sourced/directed components and Buyer’s purchasing group will be responsible for sourcing and will remain responsible for all financial obligations associated with such suppliers including, but not limited to, approval and payment of price increases, warranty claims and obsolescence of pre-sourced/directed components, quality issues, interruptions in supply, liability or resourcing of these components.
7. Force Majeure
Where Seller is unable to make delivery of any portion of the Products and/or Services covered by this Contract due to a labour dispute, accident, fire, war, breakage of machinery, government regulations, act of God, riot, explosion, flood, inability to obtain power, raw materials, components or transportation facilities, or any cause whatsoever beyond the control of Seller (“force majeure event”), Seller shall not be liable to make delivery if (a) within a reasonable time, Seller notifies Buyer of the cause of the force majeure event and the expected delay; (b) Seller takes all reasonable steps to eliminate such cause of delay; and (c) Seller continues to perform hereunder whenever such cause is removed. In the event a force majeure event continues for a period of 3 months, then the Buyer shall have the right to give written notice to the Seller terminating this Contract.
Seller warrants that all Products and/or Services delivered hereunder shall comply with the specifications agreed to between the parties from time to time. Notice of defective Products must be made within 30 days of delivery. Absence of such notice constitutes a waiver by Buyer on all claims or
defects. Transportation charges for the return of Products shall not be paid unless authorized in advance by Seller.
EXCEPT AS SET FORTH ABOVE, SELLER MAKES NO OTHER WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING NO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH RESPECT TO ITS PRODUCTS AND/OR SERVICES.
SELLER’S LIABILITY AND BUYER’S EXCLUSIVE REMEDY FOR DEFECTIVE PRODUCTS, OR FOR ANY FAILURE OF SELLER TO COMPLY WITH ITS OBLIGATIONS UNDER THIS CONTRACT INCLUDING ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN THIS SECTION 8, SHALL BE LIMITED SOLELY TO REPLACEMENT, REPAIR, REFUND OR ALLOWANCE AS SELLER MAY ELECT. SELLER SHALL HAVE THE RIGHT EITHER TO REPLACE OR REPAIR ANY DEFECTIVE PRODUCTS OR TO REFUND THE PURCHASE PRICE UPON RETURN OF THE PRODUCTS OR TO GRANT A REASONABLE ALLOWANCE ON ACCOUNT OF SUCH DEFECTS.
SELLER SHALL BE GIVEN A REASONABLE OPPORTUNITY TO INVESTIGATE ALL CLAIMS AND NO PRODUCTS SHALL BE RETURNED TO SELLER OR REMEDIED BY SELLER UNTIL AFTER INSPECTION AND APPROVAL BY SELLER, AND BUYER HAS PROVIDED ALL MATERIALS INCLUDING, WITHOUT LIMITATION THE ACTUAL PRODUCT OR CUSTOMER REPORT DATA AND PHOTOS DEMONSTRATING PRODUCT DOES NOT COMPLY WITH THE SPECIFICATIONS.
9. Patents and Trademarks/Ownership of Pre-existing Seller Technology
Seller makes no representation or warranty of any kind, express or implied, that the Products and/or Services sold hereunder or the use of such Products and/or Services, or articles made there from, either alone or in conjunction with other material will not infringe any patent or trademark rights. Buyer shall promptly notify Seller of any claim or suit involving Buyer in which such infringement is alleged, and, if Seller is affected, Buyer shall permit Seller to control completely the defense or compromise of any such allegation of infringement. Seller shall have no obligation to sell, assign, license or transfer intellectual property of any kind to Buyer, and Buyer shall have no right to use any intellectual property of Seller without the express written consent of Seller, which may be withheld in its sole discretion. Seller may enforce this Section through injunction or otherwise.
The Buyer covenants and agrees to indemnify and hold Seller harmless from and against all damages, claims, liabilities, costs and expenses (including actual fees for attorneys, experts and consultants, settlement costs and judgments) arising out of or related to allegations, claims or demands based on infringement of any patent, copyright or other intellectual property, where Seller uses drawings and/or specifications furnished by the Buyer in the fulfillment of the Contract.
Seller shall own all right, title and interest in and to any pre-existing Seller Technology (as defined). “Intellectual Property” means all patents, patent applications, copyrights, trade secrets, industrial design and other intellectual property existing prior to the date of this Agreement and any improvements thereto. “Seller Technology” means all technology, Intellectual Property, know how, processes, methods, formulas, technical data, software, equipment, designs, specifications and any other information related to Seller’s manufacturing process, and any improvements thereto.
10. Limitations of Liability
IN NO EVENT SHALL SELLER, ITS OFFICERS, DIRECTORS, AGENTS OR EMPLOYEES (“SELLER PARTIES”) BE LIABLE, AND BUYER WAIVES ALL CLAIMS AGAINST SELLER PARTIES, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR PROFITS, GOODWILL, LOST DATA, AND/OR COSTS OF PROCUREMENT OR SUBSTITUTE GOOD, FOR ANY BREACH OF WARRANTY OR FOR ANY MATTER ARISING OUT OF OR OTHERWISE RELATING TO THIS CONTRACT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE, EVEN IF SELLER PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER OR NOT BASED UPON SELLER PARTIES NEGLIGENCE OR BREACH OF WARRANTY OR STRICT LIABILITY IN TORT OR ANY OTHER CAUSE OF ACTION.
IN NO EVENT WILL SELLER PARTIES LIABILITY, INCLUDING ATTORNEY’S FEES, UNDER THIS CONTRACT OR IN CONNECTION WITH THE SALE OF PRODUCTS AND/OR SERVICES BY SELLER PARTIES EXCEED THE PURCHASE PRICE OF THE SPECIFIC PRODUCTS AND/OR SERVICES GIVING RISE TO THE CLAIM.
Unless otherwise expressly stated in the Seller’s Documents, any supply of Products or Services by Seller shall not be interpreted as approval of design or function by Seller. Seller assumes no liability whatsoever with regard to Buyer’s compliance or fulfillment of its obligations with respect to any statute, regulation or by-law, or Buyer’s failure to so comply with or fulfill its obligations.
(1) Seller shall manufacture or purchase tooling, moulds, fixtures, patterns and other equipment to be used by Seller in the manufacture of the Products as agreed between Seller and Buyer in writing (“Tooling”). (2) As consideration for the manufacture or purchase of the Tooling, Buyer shall pay Seller the cost of such Tooling as quoted to Buyer in writing prior to the commencement date (“Tooling Price”), which Tooling Price shall not be subject to audit or renegotiation by Buyer. Unless otherwise agreed in writing by Seller, payment of the Tooling Price is due upon the earlier of (a) the PPAP approval date for the Tooling, (b) the start of production of the associated production program, or (c) the completion of the program development phase. In the event that Seller agrees that any of Tooling Price is to be recovered by Seller as part of the piece price for the Product, any balance outstanding two years after the start of production shall be immediately paid in full. In the event this Contract is terminated for any reason prior to Seller recovering the Tooling Price in full, Buyer shall pay Seller the balance within 30 days of termination and Seller shall deliver the Tooling to Buyer upon receipt of payment in full. (3) Property in the Tooling shall pass to Buyer when Buyer has paid for the Tooling Price in full, but shall remain in the possession, control and care of Seller for the duration of this Contract and shall be reasonably maintained by Seller at its own expense, provided that Seller shall have no liability for damage or loss of any Tooling unless such damage or loss arises solely out of the negligence of Seller. (4) Notwithstanding anything else contained in this Contract, prior to any delivery of the Tooling to Buyer, Seller shall be entitled to remove any and all proprietary technologies from such Tooling, including without limitation, ribbon vents, autovents and network venting.
12. Service Parts After End of Production (“EOP”) & Obsolescence
Unless otherwise expressly stated in the Seller’s Documents, Service parts may be ordered up to a maximum of 7 years after EOP. Part price(s) after EOP will be 5 times the part price(s) valid at EOP, plus packaging, freight and tool set up costs with a minimum order requirement of 50 parts. If any items on the bill of materials are required to be built or purchased, this cost will be in addition to the part price. Lead time for supply of service parts is 2 weeks, plus any additional lead time required for components. Service part orders will be provided by either spot buys or releases. After EOP, Seller will keep only one tool per product code to secure the production of service parts. All other capacity tools and associated tool equipment (ex. models, patterns and fixtures) registered as property of the Seller may be scrapped 90 days after EOP in the sole discretion of Seller. Associated equipment such as models and patterns will be stored in either physical or electronic format (in Seller’s discretion) until 90 days after EOP. Unless Buyer notifies Seller in writing within this period, all capacity tools and associated tool equipment will be scrapped and any associated scrap recovery will be offset by Seller in dismantling, handling and disposal. If Buyer requires tools be maintained after EOP, Seller must be reimbursed for storage costs. A Buyer purchase order must be issued within 30 days to cover re-occurring storage costs. All obsolescence claims must be paid within 30 days during the life of program and after EOP.
13. Modifications and Waiver
No modification of this Contract shall be binding unless made in writing and signed by authorized representatives of each party that specifically references this Contract and states that it modifies it. No waiver by either party of any of the provisions of this Contract is effective unless explicitly set forth in writing that specifically references this Contract and is signed by the waiving party. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Contract operates or may be construed as a waiver hereof.
All confidential and proprietary information of Seller, including, but not limited to specifications, samples, designs, plans, drawings, technical information, intellectual property, documents, data, processes, business operations, customer information, pricing or discounts that Seller discloses to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and regardless of whether marked or otherwise identified as “confidential” in connection with the Contract is confidential, solely for use of performing the Contract, and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer will promptly return all documents and other materials received from Seller. Seller will be entitled to injunctive relief for any violation of this Section, without having to post bond or establish the insufficiency of a remedy at law. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; (c) rightfully obtained by Seller on a non-confidential basis from a third party.
In addition to any other remedies that Seller may have, Seller may terminate this Contract with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Contract and the failure continues for 5 days after Buyer’s receipt of written notice of non-payment; (b) has not otherwise performed or complied with this Contract, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings related to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
16. Governing Law and Arbitration
This Contract shall be governed and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, without regard to conflict of laws provisions. For greater certainty, the United Nations Convention on Contracts for International Sale of Goods shall not apply to this Contract. Subject to the arbitration provisions in this Section 16, the parties hereby irrevocably attorn to the courts of the Province of Ontario located in Toronto, Ontario. All claims, controversies or disputes arising out of, or relating to, this Contract or any modification of it shall be resolved by binding arbitration in Toronto, Ontario under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The Emergency Arbitration Provisions shall not apply. The arbitration shall be governed by the Ontario Arbitration Act, 1991.
Applicable sales and use taxes, and import/export duties and other charges, are in addition to any prices quoted by Seller and shall be paid by Buyer.
Buyer shall not assign its interest in any purchase order without Seller’s prior written consent.
Buyer shall have no right to (a) inspect Seller’s facilities, (b) examine Seller’s books, records or other documents, or (c) seek or obtain any information from Seller deemed proprietary or confidential by Seller in its sole discretion, without the express written consent of Seller obtained in each instance, which consent may be withheld in Seller’s sole discretion.
20. Entire Agreement
This Contract shall constitute the entire agreement of the parties and supersedes all existing agreements and all other oral or written communications between them concerning its subject matter. This Contract may not be added to, modified, superseded, or otherwise altered, except in accordance with Section 13.