Terms and Conditions

1.GENERAL

These terms and conditions of sale (“Terms”) will govern the sale of products (“Products”)  and services (“Services”) by CARROLL TECHNOLOGIES CORP. (together with its affiliates and subsidiaries “SELLER”) to the entity (“BUYER”) named on the accompanying proposal / quotation / confirmation of sale / invoice (the “Sales Confirmation”). The Products and Services may be provided by Carroll Technologies Corp. or any of its affiliates or subsidiaries, including, but not limited to, Delta Electric Inc. and Carroll Engineering Co. at Seller’s discretion.  These Terms and the Sales Confirmation shall comprise the entire agreement (the “Agreement”) between the parties and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.

ALL DOCUMENTS SUBMITTED TO SELLER AND CONTRACT FORMATION BETWEEN SELLER AND BUYER ARE EXPRESSLY MADE CONDITIONAL ON BUYER’S ACCEPTANCE OF THESE TERMS WITHOUT MODIFICATION OR SUPPLEMENT. ANY ADDITIONAL OR DIFFERENT TERMS PROPOSED BY BUYER ARE REJECTED IN THEIR ENTIRETY AND SHALL BE DEEMED A MATERIAL ALTERATION OF THESE TERMS.  Fulfillment of BUYER’S order does not constitute acceptance of any of BUYER’S terms and conditions and does not serve to modify or amend these Terms.  Any BUYER order is subject to written acceptance by SELLER from corporate headquarters.  All orders are subject to credit approval by SELLER. No order may be cancelled or altered by BUYER except upon terms acceptable to SELLER and set forth in writing.

2.PRICE & PAYMENT

The prices set forth in the Sales Confirmation include applicable sales tax but no other tax, fee or charge (“Other Tax”), including but not limited to any applicable city, county, provincial,, or federal excise, use or any other tax now in force or to be enacted.  Any Other Tax (excluding federal, provincial or local income taxes of SELLER) shall be paid and borne by the BUYER.  In the event SELLER is required to pay any such Other Tax, BUYER shall reimburse SELLER for such amount on demand by SELLER.

SELLER reserves the right to establish and change Product prices and payment terms at any time without notice, however changes will not apply to previously accepted orders. Payment terms are Net thirty (30) days from date of invoice. In addition to all other legal or equitable rights of SELLER, interest shall accrue on overdue invoices at the rate of the lesser of one and a half percent (1.5%) percent per month (eighteen percent (18%) per annum) or the highest rate permitted by law, calculated daily and compounded monthly. SELLER shall be entitled to recover from BUYER all costs of collection of overdue invoices, including reasonable legal fees. SELLER reserves the right, in its sole discretion, to establish a credit limit for BUYER and to require payment in advance of or to require C.O.D. terms for any shipment, or to later cancel any order, for which BUYER’S financial condition or payment history does not justify the extension of credit, in SELLER’S discretion. After thirty (30) days, orders held for credit reasons are subject to automatic cancellation.

In addition to all other remedies available under these Terms or at law, SELLER shall be entitled to suspend the delivery of any Products if BUYER fails to pay any amounts when due hereunder and such failure continues for thirty (30) days following written notice thereof.  BUYER shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with SELLER, whether relating to SELLER’S breach, bankruptcy or otherwise.  In the event of BUYER’S failure to make payment or other default, in addition to any and all other legal remedies and claims, SELLER shall have the right to either (i) require BUYER to return the Products or (ii) enter any premises where Products are located to take possession and remove said Products together with any other improvement or addition provided by SELLER without notice, liability or legal process.  BUYER agrees to pay all charges, costs, expenses and legal fees incurred by SELLER.

SELLER has the right to apply payments made by SELLER or on its behalf on account of any debt owed by BUYER to SELLER as SELLER deems appropriate and in its sole discretion, irrespective of when such debt arose.  BUYER agrees that SELLER is not bound by any order, statement, instruction, direction, notation or memorandum on any cheque or other negotiable instrument (collectively, “Non-consensual Notations”) with respect to the application of payments or other condition and that any Non-consensual Notations are made for BUYER’S own convenience and do not constitute a contract or novation or meeting of the minds nor do they reflect the intent of the parties.  BUYER further agrees and understands that SELLER will disregard Non-consensual Notations and SELLER may credit any payment it receives to BUYER’S account as SELLER deems appropriate and that BUYER’S internal crediting of that payment will not control if a dispute arises regarding when a payment was made or how it was applied.  All payments made by BUYER or its agent are subject to and governed by this clear and unambiguous term.

3.DELIVERY

Unless specified otherwise in the Sales Confirmation, delivery is F.C.A. at SELLER’S premises to the carrier designated by SELLER using SELLER’S standard methods for packaging and shipping such Products. BUYER shall take delivery of the Products within three (3) days of the Products delivery to the delivery point by the carrier.  Delivery dates are approximate and are not guaranteed.  In no event shall SELLER be liable for delays attributable to circumstances beyond its reasonable control, including but not limited to, delays in delivery by suppliers, natural disasters, Acts of God, acts of third parties or labor disorders.  If delivery as originally scheduled is delayed solely by the acts or omissions of BUYER, SELLER may invoice BUYER and store the Products at BUYER’S expense and risk.  SELLER may, in its sole discretion, without liability or penalty, make partial shipments of Products to BUYER. Each shipment will constitute a separate sale, and BUYER shall pay for the units shipped whether such shipment is in whole or partial fulfilment of the quantity purchased under this Agreement.

4.TITLE & INSURANCE

Title to the Product(s) and risk of loss or damage shall pass to the BUYER upon delivery to the carrier except that BUYER hereby grants to SELLER a security interest in and to all of the right, title and interest of BUYER in, to and under the Products until the full price has been paid.  BUYER agrees to do all acts necessary to perfect and maintain said security interest, and to protect SELLER’S interest by adequately insuring Product(s) against loss or damage from any external cause with SELLER’S name as insured or co-insured.  The security interest granted under this provision constitutes a purchase-money security interest under the Personal Property Security Act (Ontario).

5.WARRANTY

SELLER warrants that the Products covered by the Agreement are free from defects in material and workmanship under normal and proper usage for a period of six (6) months from the date of shipment.  This warranty does not cover failure of normal wear parts unless the failure of such a part has resulted from defective material and workmanship.  In the event of any failure developing within the stated period, under normal and proper use, SELLER must be notified promptly in writing.  Upon receipt of written consent by SELLER, the parts are to be returned to the point of manufacture at BUYER’S sole risk and at BUYER’S sole cost and expense.  If SELLER’S inspection indicates defective material or workmanship, the product or part thereof, SELLER’S exclusive liability, and BUYER’S exclusive remedy, for nonconforming Products shall be limited, at SELLER’S option, to: (i) either repair or replacement of the defective Products or (ii) refund of the purchase price of such Products subject to SELLER’S right to set-off against any amounts otherwise due to SELLER from BUYER or its affiliates under this or any other agreement, claim or dispute with BUYER, whether relating to BUYER’S breach, bankruptcy or otherwise.

If applicable, SELLER warrants that it shall perform the Services: (i) in accordance with the terms and subject to the conditions set out in this Agreement; (ii) using personnel of commercially reasonable skill, experience, and qualifications; and (iii) in a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.  SELLER’S sole and exclusive liability and BUYER’S sole and exclusive remedy for breach of this warranty shall be that SELLER shall use reasonable commercial efforts to promptly cure any such breach; provided, that if SELLER cannot cure such breach within a reasonable time after BUYER’S written notice of such breach, SELLER shall refund any amounts actually paid by BUYER to SELLER for such Services.

SELLER does not accept liability for any corrective work or other expenditures of any kind that have not been authorized by SELLER in writing prior to commencement for such work or expenditure by BUYER.

In the case of any failure of components purchased by SELLER and incorporated into any of the Products or systems provided by SELLER under this Agreement, SELLER’S warranty is limited to the component manufacturer’s warranty and SELLER shall not be held liable for any further cost, expense, or labor to replace equipment or parts.  SELLER will not be held liable for any cost, expense, or labor to replace or modify equipment or parts not supplied by SELLER. Except for the express warranties set forth in the Agreement, BUYER acknowledges and agrees that SELLER is making no representations, warranties or conditions, express or implied, concerning the Products, including, without limitation, any warranty of merchantability or fitness for a particular purpose. SELLER represents and warrants that the Products shall not infringe upon the proprietary rights of any third party.  SELLER makes no representations or warranties with respect to the Services except for that provided above; all other warranties, express and implied, are expressly disclaimed.

6.LIMITATION OF LIABILITY

The remedies set forth above shall be BUYER’S sole and exclusive remedy and SELLER’S entire liability for any breach of warranty.  IN NO EVENT WILL SELLER BE LIABLE FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES FROM ANY CAUSE OR FOR ANY REASON WHATSOEVER, IRRESPECTIVE OF WHETHER THE CLAIM ARISES FROM ACTUAL OR ALLEGED BREACH OF WARRANTY, INDEMNIFICATION, BREACH OF CONTRACT, NEGLIGENCE, PRODUCT LIABILITY, CONTRIBUTION OR ANY OTHER LEGAL THEORY AND IN NO EVENT WILL SELLER BE LIABLE FOR LOST REVENUE OR PROFITS OR FOR ANY EXPENSES ARISING DIRECTLY OR INDIRECTLY FROM THE HANDLING, STORAGE, TRANSPORTATION, USE, SALE OR DISPOSAL OF THE PRODUCT SOLD HEREUNDER. IN NO EVENT SHALL SELLER’S LIABILITY HEREUNDER EXCEED THE PURCHASE PRICE ACTUALLY PAID BY BUYER FOR THE PRODUCTS THAT ARE THE SUBJECT OF ANY CLAIMS MADE BY BUYER.

7.PRODUCT SAFETY

Products and systems designed and manufactured by SELLER are capable of being used in a safe manner.  SELLER cannot warrant the safety of these Products or systems under all circumstances.  Therefore it is agreed that it is the responsibility of BUYER to ensure that the installation and use of these Products or systems is in a safe and lawful manner and in compliance with applicable health and safety regulations and laws and general standards of reasonable care.

8.TERMINATION

In addition to any remedies that may be provided under this Agreement, SELLER may terminate this Agreement with immediate effect upon written notice to BUYER, if BUYER: (i) fails to pay any amount when due under this Agreement and such failure continues for thirty (30) days after BUYER’S receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

9.GOVERNING LAW / SUBMISSION TO JURISDICTION

All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of the province of Ontario and the federal laws of Canada applicable therein without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction.  Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the courts in the province of Ontario and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.  Each of the parties hereby waives the right to a trial by jury in connection with any such litigation or proceeding.

10.WAIVER OF JURY TRIAL

EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.

11.INDEMNIFICATION

Buyer shall indemnify, defend and hold harmless Seller and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including legal fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party, relating to any claim of a third party or Seller arising out of or occurring in connection with the Products or Services purchased from Seller or Buyer’s negligence, willful misconduct or breach of this Agreement. Buyer shall not enter into any settlement without Seller’s or Indemnified Party’s prior written consent.

12.MISCELLANEOUS

No claim or cause of action, other than a claim for payment of the Product price, arising under this Agreement may be asserted more than one (1) year after the date on which such claim or cause of action arises. In the event that any provision hereof shall be illegal, invalid or unenforceable, it shall not affect the legality, validity or enforceability of any other provision hereof and such illegal, invalid, or unenforceable provision shall be interpreted and modified by the parties so as to eliminate such illegality, invalidity and/or unenforceability. This Agreement shall be binding upon inure to the benefit of the parties hereto and their respective successors and permitted assigns.  This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms. BUYER shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of SELLER. Any purported assignment, transfer, delegation or subcontract in violation of this section shall be null and void. No assignment, transfer, delegation or subcontract shall relieve BUYER of any of its obligations hereunder. SELLER may at any time assign, transfer, delegate or subcontract any or all of its rights or obligations under this Agreement without BUYER’S prior written consent.

1. GENERAL

These terms and conditions of sale (“Terms”) will govern the sale of products (“Products”)  and services (“Services”) by CARROLL TECHNOLOGIES CORP. (together with its affiliates and subsidiaries “SELLER”) to the entity (“BUYER”) named on the accompanying proposal / quotation / confirmation of sale / invoice (the “Sales Confirmation”). The Products and Services may be provided by Carroll Technologies Corp. or any of its affiliates or subsidiaries, including, but not limited to, Delta Electric Inc. and Carroll Engineering Co. at Seller’s discretion.  These Terms and the Sales Confirmation shall comprise the entire agreement (the “Agreement”) between the parties and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.

ALL DOCUMENTS SUBMITTED TO SELLER AND CONTRACT FORMATION BETWEEN SELLER AND BUYER ARE EXPRESSLY MADE CONDITIONAL ON BUYER’S ACCEPTANCE OF THESE TERMS WITHOUT MODIFICATION OR SUPPLEMENT. ANY ADDITIONAL OR DIFFERENT TERMS PROPOSED BY BUYER ARE REJECTED IN THEIR ENTIRETY AND SHALL BE DEEMED A MATERIAL ALTERATION OF THESE TERMS.  Fulfillment of BUYER’S order does not constitute acceptance of any of BUYER’S terms and conditions and does not serve to modify or amend these Terms.  Any BUYER order is subject to written acceptance by SELLER from corporate headquarters.  All orders are subject to credit approval by SELLER. No order may be cancelled or altered by BUYER except upon terms acceptable to SELLER and set forth in writing.

2. PRICE & PAYMENT

The prices set forth in the Sales Confirmation include applicable sales tax but no other tax, fee or charge (“Other Tax”), including but not limited to any applicable city, county, provincial,, or federal excise, use or any other tax now in force or to be enacted.  Any Other Tax (excluding federal, provincial or local income taxes of SELLER) shall be paid and borne by the BUYER.  In the event SELLER is required to pay any such Other Tax, BUYER shall reimburse SELLER for such amount on demand by SELLER.

SELLER reserves the right to establish and change Product prices and payment terms at any time without notice, however changes will not apply to previously accepted orders. Payment terms are Net thirty (30) days from date of invoice. In addition to all other legal or equitable rights of SELLER, interest shall accrue on overdue invoices at the rate of the lesser of one and a half percent (1.5%) percent per month (eighteen percent (18%) per annum) or the highest rate permitted by law, calculated daily and compounded monthly. SELLER shall be entitled to recover from BUYER all costs of collection of overdue invoices, including reasonable legal fees. SELLER reserves the right, in its sole discretion, to establish a credit limit for BUYER and to require payment in advance of or to require C.O.D. terms for any shipment, or to later cancel any order, for which BUYER’S financial condition or payment history does not justify the extension of credit, in SELLER’S discretion. After thirty (30) days, orders held for credit reasons are subject to automatic cancellation.

In addition to all other remedies available under these Terms or at law, SELLER shall be entitled to suspend the delivery of any Products if BUYER fails to pay any amounts when due hereunder and such failure continues for thirty (30) days following written notice thereof.  BUYER shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with SELLER, whether relating to SELLER’S breach, bankruptcy or otherwise.  In the event of BUYER’S failure to make payment or other default, in addition to any and all other legal remedies and claims, SELLER shall have the right to either (i) require BUYER to return the Products or (ii) enter any premises where Products are located to take possession and remove said Products together with any other improvement or addition provided by SELLER without notice, liability or legal process.  BUYER agrees to pay all charges, costs, expenses and legal fees incurred by SELLER.

SELLER has the right to apply payments made by SELLER or on its behalf on account of any debt owed by BUYER to SELLER as SELLER deems appropriate and in its sole discretion, irrespective of when such debt arose.  BUYER agrees that SELLER is not bound by any order, statement, instruction, direction, notation or memorandum on any cheque or other negotiable instrument (collectively, “Non-consensual Notations”) with respect to the application of payments or other condition and that any Non-consensual Notations are made for BUYER’S own convenience and do not constitute a contract or novation or meeting of the minds nor do they reflect the intent of the parties.  BUYER further agrees and understands that SELLER will disregard Non-consensual Notations and SELLER may credit any payment it receives to BUYER’S account as SELLER deems appropriate and that BUYER’S internal crediting of that payment will not control if a dispute arises regarding when a payment was made or how it was applied.  All payments made by BUYER or its agent are subject to and governed by this clear and unambiguous term.

3. DELIVERY

Unless specified otherwise in the Sales Confirmation, delivery is F.C.A. at SELLER’S premises to the carrier designated by SELLER using SELLER’S standard methods for packaging and shipping such Products. BUYER shall take delivery of the Products within three (3) days of the Products delivery to the delivery point by the carrier.  Delivery dates are approximate and are not guaranteed.  In no event shall SELLER be liable for delays attributable to circumstances beyond its reasonable control, including but not limited to, delays in delivery by suppliers, natural disasters, Acts of God, acts of third parties or labor disorders.  If delivery as originally scheduled is delayed solely by the acts or omissions of BUYER, SELLER may invoice BUYER and store the Products at BUYER’S expense and risk.  SELLER may, in its sole discretion, without liability or penalty, make partial shipments of Products to BUYER. Each shipment will constitute a separate sale, and BUYER shall pay for the units shipped whether such shipment is in whole or partial fulfilment of the quantity purchased under this Agreement.

4. TITLE & INSURANCE

Title to the Product(s) and risk of loss or damage shall pass to the BUYER upon delivery to the carrier except that BUYER hereby grants to SELLER a security interest in and to all of the right, title and interest of BUYER in, to and under the Products until the full price has been paid.  BUYER agrees to do all acts necessary to perfect and maintain said security interest, and to protect SELLER’S interest by adequately insuring Product(s) against loss or damage from any external cause with SELLER’S name as insured or co-insured.  The security interest granted under this provision constitutes a purchase-money security interest under the Personal Property Security Act (Ontario).

5. WARRANTY

SELLER warrants that the Products covered by the Agreement are free from defects in material and workmanship under normal and proper usage for a period of six (6) months from the date of shipment.  This warranty does not cover failure of normal wear parts unless the failure of such a part has resulted from defective material and workmanship.  In the event of any failure developing within the stated period, under normal and proper use, SELLER must be notified promptly in writing.  Upon receipt of written consent by SELLER, the parts are to be returned to the point of manufacture at BUYER’S sole risk and at BUYER’S sole cost and expense.  If SELLER’S inspection indicates defective material or workmanship, the product or part thereof, SELLER’S exclusive liability, and BUYER’S exclusive remedy, for nonconforming Products shall be limited, at SELLER’S option, to: (i) either repair or replacement of the defective Products or (ii) refund of the purchase price of such Products subject to SELLER’S right to set-off against any amounts otherwise due to SELLER from BUYER or its affiliates under this or any other agreement, claim or dispute with BUYER, whether relating to BUYER’S breach, bankruptcy or otherwise.

If applicable, SELLER warrants that it shall perform the Services: (i) in accordance with the terms and subject to the conditions set out in this Agreement; (ii) using personnel of commercially reasonable skill, experience, and qualifications; and (iii) in a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.  SELLER’S sole and exclusive liability and BUYER’S sole and exclusive remedy for breach of this warranty shall be that SELLER shall use reasonable commercial efforts to promptly cure any such breach; provided, that if SELLER cannot cure such breach within a reasonable time after BUYER’S written notice of such breach, SELLER shall refund any amounts actually paid by BUYER to SELLER for such Services.

SELLER does not accept liability for any corrective work or other expenditures of any kind that have not been authorized by SELLER in writing prior to commencement for such work or expenditure by BUYER.

In the case of any failure of components purchased by SELLER and incorporated into any of the Products or systems provided by SELLER under this Agreement, SELLER’S warranty is limited to the component manufacturer’s warranty and SELLER shall not be held liable for any further cost, expense, or labor to replace equipment or parts.  SELLER will not be held liable for any cost, expense, or labor to replace or modify equipment or parts not supplied by SELLER. Except for the express warranties set forth in the Agreement, BUYER acknowledges and agrees that SELLER is making no representations, warranties or conditions, express or implied, concerning the Products, including, without limitation, any warranty of merchantability or fitness for a particular purpose. SELLER represents and warrants that the Products shall not infringe upon the proprietary rights of any third party.  SELLER makes no representations or warranties with respect to the Services except for that provided above; all other warranties, express and implied, are expressly disclaimed.

6. LIMITATION OF LIABILITY

The remedies set forth above shall be BUYER’S sole and exclusive remedy and SELLER’S entire liability for any breach of warranty.  IN NO EVENT WILL SELLER BE LIABLE FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES FROM ANY CAUSE OR FOR ANY REASON WHATSOEVER, IRRESPECTIVE OF WHETHER THE CLAIM ARISES FROM ACTUAL OR ALLEGED BREACH OF WARRANTY, INDEMNIFICATION, BREACH OF CONTRACT, NEGLIGENCE, PRODUCT LIABILITY, CONTRIBUTION OR ANY OTHER LEGAL THEORY AND IN NO EVENT WILL SELLER BE LIABLE FOR LOST REVENUE OR PROFITS OR FOR ANY EXPENSES ARISING DIRECTLY OR INDIRECTLY FROM THE HANDLING, STORAGE, TRANSPORTATION, USE, SALE OR DISPOSAL OF THE PRODUCT SOLD HEREUNDER. IN NO EVENT SHALL SELLER’S LIABILITY HEREUNDER EXCEED THE PURCHASE PRICE ACTUALLY PAID BY BUYER FOR THE PRODUCTS THAT ARE THE SUBJECT OF ANY CLAIMS MADE BY BUYER.

7. PRODUCT SAFETY

Products and systems designed and manufactured by SELLER are capable of being used in a safe manner.  SELLER cannot warrant the safety of these Products or systems under all circumstances.  Therefore it is agreed that it is the responsibility of BUYER to ensure that the installation and use of these Products or systems is in a safe and lawful manner and in compliance with applicable health and safety regulations and laws and general standards of reasonable care.

8. TERMINATION

In addition to any remedies that may be provided under this Agreement, SELLER may terminate this Agreement with immediate effect upon written notice to BUYER, if BUYER: (i) fails to pay any amount when due under this Agreement and such failure continues for thirty (30) days after BUYER’S receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

9. GOVERNING LAW / SUBMISSION TO JURISDICTION

All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of the province of Ontario and the federal laws of Canada applicable therein without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction.  Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the courts in the province of Ontario and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.  Each of the parties hereby waives the right to a trial by jury in connection with any such litigation or proceeding.

10. WAIVER OF JURY TRIAL

EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.

11. INDEMNIFICATION

Buyer shall indemnify, defend and hold harmless Seller and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including legal fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party, relating to any claim of a third party or Seller arising out of or occurring in connection with the Products or Services purchased from Seller or Buyer’s negligence, willful misconduct or breach of this Agreement. Buyer shall not enter into any settlement without Seller’s or Indemnified Party’s prior written consent.

12. MISCELLANEOUS

No claim or cause of action, other than a claim for payment of the Product price, arising under this Agreement may be asserted more than one (1) year after the date on which such claim or cause of action arises. In the event that any provision hereof shall be illegal, invalid or unenforceable, it shall not affect the legality, validity or enforceability of any other provision hereof and such illegal, invalid, or unenforceable provision shall be interpreted and modified by the parties so as to eliminate such illegality, invalidity and/or unenforceability. This Agreement shall be binding upon inure to the benefit of the parties hereto and their respective successors and permitted assigns.  This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms. BUYER shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of SELLER. Any purported assignment, transfer, delegation or subcontract in violation of this section shall be null and void. No assignment, transfer, delegation or subcontract shall relieve BUYER of any of its obligations hereunder. SELLER may at any time assign, transfer, delegate or subcontract any or all of its rights or obligations under this Agreement without BUYER’S prior written consent.