The following terms and conditions (the “Terms and Conditions”) form an integral part of each purchase contract or order (the “Purchase Order”) entered into by PyroGenesis Inc. or any of its subsidiaries (“PyroGenesis”) for the performance by the supplier identified in the Purchase Order (the “Seller”) of certain work (the “Work”) consisting of the sale and delivery of equipment, products or other goods (“Goods”) and/or the performance of certain services (the “services”).
ACCEPTANCE:
Acceptance by the Seller of the Purchase Order or shipment by the Seller of any Goods or performance by the Seller of any services called for by the Purchase Order shall be conclusive evidence of the Seller’s acceptance of these Terms and Conditions, notwithstanding any proposals, modifications, amendments, or changes proposed by the Seller (including those made after the Seller’s receipt of the Purchase Order), except where explicitly accepted in writing by PyroGenesis.
INVOICING AND MARKING:
The Purchase Order number must be shown by the Seller on all invoices, packages, shipping cases, bills of lading, express receipts and correspondence.
The following documentation and certificates must, where applicable, accompany each shipment: (a) manufacturers name, part number and serial number; (b) date code and /or inspection lot number; (c) certificate of compliance with traceability number and authorized signature; (d) quality report; (e) certificate of origin; (f) material safety data sheets; and/or such other documents as are specified in the Purchase Order.
SHIPMENT:
Deliveries shall be DDP PyroGenesis’ Montreal Quebec facility unless specified otherwise in the Purchase Order, and freight or express charges and insurance must be prepaid by the Seller. Shipments must be in the quality and quantity specified in the Purchase Order unless otherwise agreed to in writing by PyroGenesis.
INSPECTION AND ACCESS:
All delivered Goods remain subject to inspection and payment shall not constitute acceptance. To facilitate compliance with the Purchase Order and the expediting of the Work provided thereunder, the Seller shall give PyroGenesis’ representatives, contractors, and designees access to the Seller’s facilities and work upon reasonable request and at the cost of PyroGenesis. Any approval, review, or inspection by PyroGenesis or anyone on its behalf shall in no way relieve the Seller from its obligations to comply with the requirements of the Purchase Order and these Terms and Conditions in every respect.
CANCELLATION:
PyroGenesis may cancel the Purchase Order at any time upon notice to the Seller, in which event the Seller shall immediately stop all Work hereunder and shall immediately cause any and all of its suppliers and subcontractors to cease Work. Subject to the terms of these Terms and Conditions, the Seller shall be paid a percentage of the Purchase Order price reflecting the percentage of the Work performed prior to the notice of termination. The Seller shall not be paid for any Work performed or costs incurred which reasonably could have been avoided.
If any Work is not delivered in accordance with the Purchase Order or these Terms and Conditions, PyroGenesis reserves the right, without prejudice to its other rights it may have, to cancel all or any part of the Purchase Order or return any delivered Goods, the whole without any cancellation charge or penalty. In every such event, PyroGenesis shall have the right to purchase elsewhere the applicable Work and to recover all related additional costs and damages from the Seller.
INTELLECTUAL PROPERTY:
The Seller agrees that PyroGenesis shall be the owner of all inventions, technology, designs, and other information conceived, developed or otherwise generated in the performance of the Work by or on behalf of the Seller. The Seller hereby assigns and agrees to assign all right, title, and interest in the foregoing to PyroGenesis, including without limitation all copyrights, patent rights and other intellectual property rights therein. The Seller warrants that the Work performed or delivered in connection with the Purchase Order will not infringe or otherwise violate the intellectual property rights of any third party. To the extent that any pre-existing inventions, technology, and other information or materials are used, included, or contained in the Work, the Seller grants to PyroGenesis an irrevocable, nonexclusive, world-wide, royalty- free license to use for any purchase such pre-existing materials and to authorize others to do the same.
CHANGES:
PyroGenesis may at any time by written order make changes in one or more of the following: (a) drawings, specifications or samples; (b) method of shipment or packaging; (c) method of inspection, delivery or acceptance; or (d) time or times of delivery. If any such change alters the cost, delivery time, or other conditions for the Goods or Services set forth in the Purchase Order, the Seller must notify PyroGenesis in writing within ten days following the Seller’s receipt of the change notification. If the Seller provides such notice to PyroGenesis, PyroGenesis shall have the option to agree to the Seller’s alteration(s) or terminate the Purchase Order, which termination shall occur in conformity with the Cancellation section above. In the event that the Seller intends to change the location of its facilities or where any Work is to be carried out, it must first notify PyroGenesis and the preceding sentence shall apply with respect to such change.
COUNTERFEIT PARTS:
The Seller shall not deliver any counterfeit goods to PyroGenesis. To that end, the Seller shall implement and maintain methods and processes appropriate to their goods to minimize the risk of introducing counterfeit parts and materials into deliverable Goods. The Seller commits to only deliver goods to PyroGenesis which have purchased directly from the original component manufacturer (OCM)/original equipment manufacturer (OEM), or through an OCM/OEM authorized distributor chain.
SUBCONTRACT:
The Seller may not subcontract, assign, or transfer the Work, the Purchase Order or any of its rights or obligations related thereto without the prior written consent of PyroGenesis.
NONDISCLOSURE:
In the performance of the Work, PyroGenesis may disclose to the Seller certain information of a confidential or proprietary nature, including, without limitation, any technical data, specifications, drawings, and other project, business, or financial information (“Confidential Information”). The Seller shall keep secret, and not disclose to any third party, Confidential Information it becomes privy to. In the event that PyroGenesis and the Seller enter into a separate non-disclosure agreement, the terms and conditions of that agreement shall apply but only with respect to the sharing, protection, and disclosure of confidential information.
COMPLIANCE WITH LAWS AND ETHIC BEHAVIOUR:
The Seller is expected to conduct itself in an ethical manner and must, at a minimum, perform all duties and expectations in compliance with all laws and regulations applicable to their business. Without limiting the generality of the foregoing, the Seller must adhere to the anticorruption laws that govern operations in the countries in which it does business, such as the U.S. Foreign Corrupt Practices Act, and other similar laws prohibiting bribery and corruption in business dealings, respect national and international rules governing human rights, human trafficking, child labour, and conflict minerals, and adhere to all applicable export/import laws and regulations.
WARRANTY:
The Seller expressly warrants that all Work covered by the Purchase Order shall conform to the specifications, drawings, samples, or other descriptions defined in the Purchase Order or otherwise upon which the order is based, and that all Work shall meet applicable standards for product and service conformity and product safety. The Work shall be fit and sufficient for the intended purpose, merchantable, of good material and workmanship, and free from defects. All Work of the Seller’s design will also be free from defects in design. Inspection, test, acceptance, payment, or use of the Goods furnished hereunder shall not affect the Seller’s obligations under this warranty, which shall survive inspection, test, acceptance, payment, and use.
This warranty shall remain in effect for the benefit of PyroGenesis as well as its successors, assigns, customers, and end-users of the Work. Upon notification of any breach of the above warranties, including breaches of product conformity and product safety requirements, the Seller shall, at PyroGenesis’ option, promptly replace or correct the non-conforming or unsafe Work or refund the purchase price thereof, in each case without expense to PyroGenesis. If the Seller fails to promptly take such corrective action, or in the case where urgent corrective action is required, PyroGenesis may undertake (itself or through a third party) any corrective action, including replacing or repairing any Work, and charge the Seller for any costs and damages incurred by PyroGenesis.
INDEMNIFICATION:
The Seller shall defend, indemnify, and hold harmless PyroGenesis, its officers, directors, employees, consultants, agents, affiliates, successors, permitted assigns and customers from and against all losses, costs, claims, causes of action, damages, liabilities, and expenses, including attorney’s fees, all expenses of litigation and/or settlement, and court costs, arising from any act or omission of the Seller in the performance of any of its obligations relating to the Work or the Purchase Order.
MISCELLANEOUS:
Any provision hereof which is contrary to law will not invalidate any other provision hereof. The Purchase Order shall be governed and interpreted in accordance with the laws of the province of Quebec (Canada). Any disputes brought in respect of the Work, the Purchase Order, or these Terms and Conditions must be brought before a court of competent jurisdiction in Montreal, Quebec. It is the express wish of the suppliers and PyroGenesis that this agreement be drawn up in the English language. Les deux parties aux présentes conviennent expressément à ce que le présent contrat soit rédigé en langue anglaise.