These Sales Quote Terms and Conditions (the “Terms and Conditions”) apply to and are a part of all Sales Quotes and Supply Agreements (together, “Sales Quotes” and each a “Sales Quotes”) issued by SAE, Inc. (“SAE”).
1. OFFER; ACCEPTANCE; TERMS
A. Each Sales Quote, including these Terms and Conditions, is an offer by SAE to the party to whom the Sales Quote is addressed and that party’s affiliates and subsidiaries (together “Purchaser”) to enter into a contract for the production, and sale of the goods and/or services specified in the Sales Quote and in any attachments, schedules, exhibits, requests for quotations, designs and drawings provided to the Purchaser by SAE (collectively, “Goods”). Each Sales Quote, including these Terms and Conditions, will be deemed accepted by Purchaser by Purchaser’s issuance of a Purchase Order or acceptance of shipped Goods, performance of services, written acknowledgement, or any other conduct of Purchaser that recognizes the existence of a contract pertaining to the subject matter of the Sales Quote.
B. The Purchaser’s acceptance is expressly limited to these Terms and Conditions. Any purported acceptance of any Sales Quote terms and conditions which attempt to modify, supersede, supplement or otherwise alter these Terms and Conditions will not be binding upon SAE.
2. PRICE – Prices charged for Goods will be stated in the Sales Quote and may be subject to increase for any reason including, but not limited to, increases in raw material or component costs, labor costs, or overhead Prices may be subject to mandatory increases if so provided in the Sales Quote. The Purchaser is solely responsible for any and all transport and unloading charges and costs, customs charges and costs, taxes, tariffs, duties, insurance charges and costs, and any fiscal contribution related to the Goods, from the shipping dock of SAE to the destination of the Goods stipulated in a Sales Quote or otherwise requested by the Purchaser, unless shipping costs are otherwise expressly addressed in the Sales Quote.
3. INVOICES; PATMENT TERMS
A. Purchaser acknowledges and agrees that SAE will send all invoices to the invoicing address identified in the Purchase Should the Purchaser wish to change the address, SAE will require at least 10 days written notice of the new address.
B. SAE reserves the right to reference different payment terms in any invoice issued for the Goods. All invoices shall be subject to the correction of any errors or omissions made therein. Any payment by the Purchaser of an incorrect invoice shall be credited towards the actual, correct amount owing. An error or omission in an invoice issued by SAE shall not prevent or delay the Purchaser’s obligation to pay the correct invoice amount stipulated.
C. Unless otherwise stated in the Sales Quote, SAE’s invoices will be payable within 30 days of the date of the invoice. The method of payment may be stipulated by SAE on the Sales Quote itself.
4. QUALITY – SAE agrees to meet the specifications for the Goods outlined in a Sales Quote. The Customer is responsible for assuring the quality, performance, fit, form, function and appearance of all Goods provided are fit for their purposes.
5. DELIVERY; SHIPPING COSTS; RISK OF LOSS
A. All shipping expenses and/or other related expenses, including any Shipping expenses necessary to meet delivery schedules set forth in the Sales Quote will be Purchaser’s sole responsibility unless otherwise agreed upon.
B. Delivery will have been deemed to occur, and the Goods will be deemed to be in the possession of the Purchaser once the Goods have left the shipping dock of SAE unless otherwise stated.
6. INTELLECTUAL PROPERTY
A. Intellectual Property Rights. The term “Intellectual Property Rights” means inventions, patents (including utility patents and design patents), trade secrets, trademarks, service marks, trade dress, industrial designs, mask works, copyrights, know- how, software, data base rights and other proprietary The term “Background Intellectual Property Rights” means the Intellectual Property Rights of SAE existing prior to an applicable Purchase Order, as well as any improvements thereto, excluding the Foreground Intellectual Property Rights. The term “Foreground Intellectual Property Rights” means any and all Intellectual Property Rights developed for incorporation into the Goods that are developed by SAE alone, by SAE and Purchaser jointly, in connection with any Purchase Order. Foreground Intellectual Property Rights do not include any Background Intellectual Property Rights.
B. Background Intellectual Property Rights. SAE will retain exclusive ownership of its Background Intellectual Property SAE does not transfer to Purchaser any of its Background Intellectual Property Rights, and Purchaser may not use the same in any circumstances. No license is being transferred from SAE to the Purchaser for any Background Intellectual Property Rights.
C. Foreground Intellectual Property Rights. All Foreground Intellectual Property Rights are owned by SAE and not the Purchaser. Purchaser hereby confirms the same and assigns to SAE all of Purchaser’s right, title and interest in and to all Foreground Intellectual Property Rights that are developed or created during performing any Sales Quote Order (separately or as part of any Goods). To the extent that any Foreground Intellectual Property Rights are copyrightable works or works of authorship (including, but not limited to, computer programs, technical specifications, documentation and manuals), the parties agree that they are “works made for hire” as that term is used in connection with the US or Canadian patent and copyright legislation.
D. Purchaser: (i) will defend, hold harmless and indemnify SAE, its directors, officers, employees, agents and its customers against all claims, demands, losses, suits, damages, liability and expenses (including actual fees for attorneys, experts and consultants, settlement costs and judgments) arising out of any lawsuit, claim, demand or action for actual or alleged direct or contributory or vicarious infringement of, or inducement to infringe, any US, Canadian or foreign Intellectual Property Right by reason of the manufacture, use, sale, offering for sale, importation or distribution of the Goods (including such claims where Purchaser has provided only part of the Goods); and (ii) waives any claim against SAE and its customers, including any hold-harmless or similar claim, whether known or unknown, contingent or latent, in any way related to a claim asserted against Purchaser or SAE for infringement of any Intellectual Property Rights, including claims arising out of compliance with specifications furnished by Purchaser.
E. Purchaser will not assert or transfer to any third party a right to assert against SAE or its customers any Intellectual Property Rights that Purchaser has or may have that are applicable to the Goods used or furnished under the Purchase Order.
F. Both Parties agree that they will not chemically analyze or have analyzed any Product they receive from the other Party. The Parties each expressly agree that they will not take any steps to reverse engineer any product received from the other Party.
A. In the event that it can be demonstrated that any unit of the Products was not in good, working or saleable condition at the time it left the manufacturing premises of SAE, then SAE shall provide a working, saleable replacement for such unit.
B. Both parties agree that SAE shall not be under any obligation to repurchase any of the Products under any circumstances.
C. SAE is not responsible for product issues associated with Purchasers incorrect installation procedures or failure to follow product specific instructions.
No warranty of merchantability or other warranty, express or implied, is made by Seller except that the Seller warrants the goods to be free of defects in workmanship. All information and suggestions appearing in this document or any of the Seller’s product literature, quotations or product descriptions is believed to be reliable. However, it is the user’s responsibility to determine the suitability of the product for his own use.
Since the actual use by others is beyond the Seller’s control, no guarantee, expressed or implied other than the warranty statement above, is made by Seller to the effects of such use or the results to be obtained, nor does Seller assume any liability arising out of use of the products by others. Nor is the information in Seller’s quotations or product descriptions to be construed as absolutely complete since additional information may be necessary or desirable when particular or exceptional conditions or circumstances exist or because of applicable laws or government regulations. Seller will not be liable for any action or result, claim or loss from same when goods manufactured by the Seller are made in accordance with specifications, drawings or samples supplied by the Buyer.
8. CHANGES – SAE reserves the right at any time to change its subcontractors or method of delivery of the Goods provided the Goods still meet the specifications outlined in the Sales Quote.
9. FINANCIAL AND OPERATIONAL CONDITION OF PURCHASER – Purchaser represents and warrants to SAE as of the date of each Purchase Order that it is not insolvent and is paying all debts as they become due; that it is in compliance with all loan covenants and other obligations; that all financial information provided by Purchaser to SAE concerning Purchaser is true and accurate; that such financial information fairly represents Purchaser’s financial condition; and that all financial statements of Purchaser have been prepared in accordance with generally accepted accounting principles, uniformly and consistently applied.
10. PURCHASER’S INSOLVENCY – SAE may immediately terminate each Purchase Order without any liability of SAE to Purchaser upon the occurrence of any of the following or any other similar or comparable event: (i) insolvency of Purchaser; (ii) Purchaser’s inability to promptly provide SAE with adequate and reasonable assurance of Purchaser’s financial and operational capability to perform timely any of Purchaser’s obligations under any Purchase Order; (iii) filing of a voluntary petition in bankruptcy or other insolvency proceeding by Purchaser (or a comparable insolvency event); (iv) filing of an involuntary petition in bankruptcy or other insolvency proceeding against Purchaser (or a comparable insolvency event); (v) appointment of a liquidator or a receiver or trustee for Purchaser or Purchaser’s assets; or (vi) execution of any assignment for the benefit of creditors of Purchaser.
11. REMEDIES FOR BREACH BY PURCHASER – Purchaser agrees that any damages flowing from any liability of SAE from any defect in the Goods shall be limited to the monetary value of the amount that the Purchaser paid for the Goods that can be demonstrated, by the Purchaser, to be defective.
A. SAE’s Right to Terminate for Cause. SAE may terminate immediately all or any part of each Purchase Order, without any liability of SAE to Purchaser, if Purchaser: (i) repudiates, breaches or threatens to repudiate or breach any of the terms or conditions of the Sales Quote.
B. SAE’s Right to Terminate for Convenience. In addition to any other rights of SAE to terminate each Purchase Order for cause, SAE may, at its option, terminate all or any part of the Purchase Order at any time and for any reason by giving written notice to Purchaser.
13. LIMITATION OF DAMAGES – In no event will SAE be liable to Purchaser or Purchaser’s subcontractors for anticipated profits or for special, incidental or consequential damages.
A. Purchaser may not assign or delegate any of its duties or obligations under any Purchase Order without the prior written consent of SAE, which may be withheld in SAE’s sole Any sale, assignment or other transfer of stock, securities, or other interests of Purchaser that would result in a change in control of Purchaser will be deemed to be a purported assignment of the Purchase Order, with respect to which SAE reserves the right to withhold its consent.
B. SAE may assign the Purchase Order and/or any of its rights and interests in the Purchase Order, without Purchaser’s consent, to any person or entity whomsoever or whatsoever including, without limitation, any of SAE’s affiliates (including, without limitation, any parent, subsidiary or division), or to any purchaser of or successor to all or any portion of SAE’s business or assets.
15. PACKAGING; SHPIPING – Packaging shall be effected in accordance with SAE’s standard packaging practices.
16. ADVERTISING – Purchaser will not refer to SAE in advertising or public releases without SAE’s prior written approval and will not use SAE’s trademarks or trade names in advertising or promotional materials.
17. FORCE MAJEURE; LABOR DISRUPTIONS – Any delay or failure of SAE or Purchaser to perform its obligations under the Sales Quote or Purchase Order will be excused if, and to the extent that, the party is unable to perform specifically due to an event or occurrence beyond its reasonable control and without its fault or negligence, such as: acts of God; restrictions, prohibitions, priorities or allocations imposed or actions taken by a governmental authority; embargoes; fires; explosions; natural disasters; riots; or SAE shall not be liable for any loss, damage, or claim against or accruing to the Purchaser as a result of a delay in delivery of Goods as a result of an event of Force Majeure.
18. SEVERABILITY – If any term(s) of the Purchase Order is invalid or unenforceable under any statute, regulation, ordinance, or other rule of law, such term(s) will be deemed reformed or deleted, as the case may be, but only to the extent necessary to comply with such statute, regulation, ordinance, order or rule, and the remaining provisions of the Purchase Order will remain in full force and effect.
19. NOTICES – All notices, claims and other communications to SAE required or permitted under the Purchase Order will be made in writing and will be effective only upon receipt by SAE. Purchaser’s failure to provide any notice, claim or other communication to SAE in the manner and within the time periods specified in the Purchase Order will constitute a waiver by Purchaser of any and all rights and remedies that otherwise would have been available to Purchaser upon making such notice, claim or other communication.
20. ELECTRONIC COMMUNICATION – Purchaser will comply with the method of electronic communication specified by SAE, including requirements for electronic funds transfer, purchase order transmission, electronic signature, and other communications.
21. RELATIONSHPI OF PARTIES – Purchaser and SAE are independent contracting parties and nothing in these Terms and Conditions will make either party the agent or legal representative of the other for any purpose, nor does it grant either party any authority to assume or to create any obligation on behalf of or in the name of the other.
22. CONFIDENTIALITY – Purchaser will (i) keep all SAE’s information confidential, “SAE’s information” means all information provided to Purchaser by SAE or its representatives or subcontractors in connection with the business, programs, and Goods data, formulas, compositions, designs, sketches, photographs, samples, prototypes, test vehicles, manufacturing, packaging or shipping methods and processes and computer software and programs (including object code and source code). SAE’s information also includes any materials or information that contains, or is based on any SAE’s information, whether prepared by SAE, Purchaser or any other person.
23. ENTIRE AGREEMENT; MODIFICATION – A Purchase Order, including these Terms and Conditions, as may hereafter be modified together with the attachments, exhibits or supplements specifically referenced in the Purchase Order, constitutes the entire agreement between Purchaser and SAE with respect to the matters contained in the Purchase Order and will be deemed to supersede all prior oral or written representations and agreements. SAE may modify the Terms and Conditions, at any time, by providing notice of such modified Terms and Conditions to the Purchaser.
24. GOVERNING LAW; JURISDICTION; VENUE – Each Purchase Order will be governed by the laws of the Province of Ontario without regard to any otherwise applicable conflict of laws provisions. SAE and Purchaser agree that any and all disputes between them will be resolved by, and they each consent to, the exclusive jurisdiction and venue of the City of Barrie, Province of Ontario, Canada to resolve any such disputes, including for lawsuits seeking monetary relief or equitable relief. Any dispute shall first be mediated in accordance with the Arbitrations Act, Ontario, at a venue chosen by the parties within the geographic boundaries of the City of Barrie. Purchaser specifically waives any and all objections to venue in such courts.
25. CONTINUING OBLIGATIONS – These Terms and Conditions will survive expiration, non-renewal or termination of the purchasing relationship between SAE and Purchaser.