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TERMS & CONDITIONS - OF SALE

                                                                     FABRICATED PLASTICS LIMITED
                                                                               A Denali Company

                                                                          (herein referred to as 'FPL')

                                                                    TERMS AND CONDITIONS OF SALE
 

1. GENERAL.

A. This Proposal Terms and Conditions shall be construed as an OFFER to sell goods and services to you ('Buyer'), based on the terms and conditions set forth herein.This Offer may be accepted only by noting Buyer's acceptance on it in the space provided below. No acceptance which varies the terms of this Offer or proposes additional or different terms is effective unless expressly approved by Fabricated Plastics ('FPL') in writing. Unless specifically agreed otherwise, the Buyer's acceptance of FPL's Proposal ('Proposal') shall constitute acceptance of the proposal Terms and Conditions as stated herein.

B. Any previous offers made by Buyer for the purchase of goods or services are hereby rejected. This Offer further constitutes the rejection of any additional proposed terms, regardless of whether such additional proposed terms have already been submitted by Buyer, or are later communicated by Buyer.

C. All shipments or services provided to Buyer are considered to have been made pursuant to this Offer and are expressly limited to the terms of the Proposal Terms and Conditions.

D. FPL will sell only the goods, services, equipment or materials specifically set forth in the Proposal and any modifications or revisions agreed to by FPLFPLundertakes no responsibility for furnishing any other goods, services, equipment, data or materials shown in any plans or specifications or specifications incorporated directly or by reference in the Buyer's Purchase Document.

E. FPL's Proposal Terms and Conditions, once accepted by Buyer, will constitute a contract hereinafter referred to as the Agreement. If this Offer is accepted, no other terms or conditions, verbal or written, will become terms of the Agreement other than those expressly stated within this Offer.

 

2. PRICE AND TERMS OF PAYMENT.

A. The purchase price for the goods or services as proposed shall be as set forth in this Agreement. Unless otherwise specified, and subject to prior credit approval, the net purchase price shall be payable in full thirty (30) days from date of invoice or delivery, whichever is earlier, provided that no invoice will be rendered prior to shipment. If shipment of the goods is made in units or lots, payment for each unit or lot shall be due on shipment of each unit or lot in an amount equal to the percentage of the total purchase price represented by that unit or lot or the listed unit or lot price established in the Agreement if unit or lot prices are listed.

B. The price does not include drawings or instruction books unless specifically itemized.

C. If Buyer requests that FPL hold or warehouse goods after they are ready for delivery, Buyer will pay FPL a sum to include all storage charges and moving and handling expenses to and from storage, dunnage and storage materials in connection with storage of goods. In any event, Buyer will pay the total purchase price within thirty (30) days from the date the Buyer is notified that goods are ready for delivery.

D. Accounts past due shall bear interest at the lesser of: 1) the rate of one and one-half percent (1½%) per month; or the maximum legally permitted rate of interest of the governing law jurisdiction of the Agreement. If it is necessary to engage legal counsel or collection agent with regard to a past due account, FPL will be entitled to collect all costs, expenses and attorneys fees.

E. All moulds or other property of Buyer in the possession of FPL are subject to lien and may be retained as security for unpaid invoice amounts.

 

3. TITLE AND USE.

FPL hereby warrants that it is the lawful Owner of any goods, materials or equipment proposed to be sold and that it will have a good title to such goods, materials, or equipment with the full right to sell and convey the goods. However,FPL makes no representation or warranties as to the effectiveness or performance of such goods, materials or equipment other than as may hereinafter be provided.

 

4. DELIVERY AND RISK OF LOSS.

Unless otherwise specifically agreed, all sales will be made F.O.B. FPL's place of business as specifically identified in the Proposal. The Buyer will pay all costs of shipment and any payment by FPL of freight or other charges shall be for the account of the Buyer and shall not extend the obligations of FPL with respect to delivery. Risk of loss or damage shall pass to the Buyer on delivery to the carrier at FPL's plant , notwithstanding any provisions for payment of freight or insurance by FPL, or the form of the shipping documents. If the Buyer desires any particular mode or routing of shipment, Buyer shall so notify FPL of full details in writing. If Buyer expresses shipment mode or routing which imposes a burden upon FPLFPLmay, in its sole discretion, so inform Buyer, in writing, and require Buyer to arrange for delivery.

 

5. BUYER'S CREDIT.

If the financial responsibility of the Buyer is materially adversely changed or otherwise becomes impaired or unsatisfactory to FPL, or the Buyer defaults under any contract with FPL, advance cash payments or satisfactory security shall be given by the Buyer upon demand by FPL, and shipments will be withheld until such payment or security is received.

 

6. TAXES.

All increases in, and all new taxes, excises, or other government charges which may hereafter be imposed on the production, sale or transportation of the materials, which are to be sold and which FPL may be required to pay, shall become part of the price payable to the Buyer. Unless separately stated, all prices are to be quoted, all orders accepted, and all billings rendered exclusive of all federal, state and municipal taxes of any kind. Except where required by law, Buyer agrees to reimburse FPL for all such taxes where the applicable law requires FPL to report and pay said tax. FPL is not to report, collect or pay any tax which may be imposed and Buyer is to report and pay all taxes so imposed and is to hold FPL harmless there from.

 

7. FIRM PRICE & TERMS OF PAYMENT.

A. The proposal shall remain firm subject to specific escalation provisions contained in the proposal. In the event of increases in the price of raw materials to FPL in excess of 10%, as determined by the consumer price index, during the course of the project, the price of the balance of the project shall be escalated in direct proportion to the consumer price index increase.

B. Unless stated otherwise, the Proposal shall remain valid for a period of thirty (30) days from the Proposal date.

 

8. FORCE MAJEURE.

FPL is not to be liable for delays in delivery or failure to manufacture due to shop load or causes beyond its reasonable control, whether or not such causes are foreseeable such as acts of God, acts of Buyer, acts of civil or military authority, fires, floods, inclement weather, epidemics, strikes, lockouts or other labour or industrial disturbances, quarantine restrictions, war, riot, government regulations, delays in transportation, car shortages, inability due to causes beyond its reasonable control to obtain necessary labour, materials, manufacturing facilities, delays of subcontractors or suppliers and failure of any subcontractor or supplier to perform.

 

9. CANCELLATION OF AGREEMENT.

Buyer may not cancel this Agreement except with the written consent of FPLFPLwill not be required to permitBuyer to cancel the Agreement.

 

10. RETURN OF MERCHANDISE.

Merchandise is not to be returned without written permission from FPLFPL is under no obligation to provide written permission, and may withhold it, on a case by case basis, within its sole discretion. There shall be a 20% restocking fee on goods accepted for return. Any items returned must be new and marketable and shipped prepaid back to FPL.

 

11. JURISDICTION, VENUE AND GOVERNING LAW.

This agreement is made with reference to and shall be construed in accordance with the laws of the Province of Ontario. If a dispute arises under this Agreement, the parties agree that jurisdiction and venue shall be in the courts of Ontario, Canada. Jurisdiction and venue as set forth shall be exclusive.

 

12. WARRANTY.

A. FPL, Inc. warrants that all goods and services provided by FPL shall be free from defect in workmanship under normal use and service for a period of twelve (12) months from date of shipment.

B. If during the warranty period, the goods or any part of the goods is suspected to be defective and, through examination by FPL, is determined to be the fault of FPL,FPL will, at FPL's option, repair or replace the goods or that part of the goods which is defective.

C. FPL's warranty does not cover damages or deterioration due to normal use, or defects, damages or deterioration due to wear and tear, exposure, normal maintenance, misuse, abuse, alteration, negligence or accident, due to the repair of the goods and services herein proposed by someone other than FPL's personnel, or due to errors or omissions in any drawings, specifications, plans or descriptions, whether written or oral, supplied to FPL by Buyer. FPL does not warrant defects attributable to Buyer's moulds. FPL does not warrant and shall have no liability whatsoever for defects in goods manufactured by third parties except only to assign to Buyer any warranty which FPL may have with respect to such goods to the extent that such warranty is assignable by FPLFPL's warranty does not extend to the installation or maintenance provided or prescribed by Buyer or any third party.

D. If the Buyer desires a defect to be corrected under this warranty at a place other than FPL's plant or at the site for FPL installed products or by personnel other thanFPL's employees, the Buyer shall pay all costs in excess of those which would have been invoiced by FPL at a straight time rate for the work performed.

E. The warranties for materials and goods manufactured by others, and incorporated by FPL as a part of the Scope of Work, shall be pass-through warranties, and the Buyer shall revert to the original equipment manufacturer for remedies to any warranty problem associated with such materials and goods.

F. This warranty does not cover removal and reinstallation expense for goods and services herein proposed.

G. This warranty will become null and void unless FPL is notified in writing of any alleged defect in the materials and/or workmanship within (10) calendar days of the date upon which the alleged defect is discovered or became detectable.

H. THIS WARRANTY IS BUYER'S EXCLUSIVE WARRANTY AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED. FPL HEREBY EXPRESSLY DISCLAIMS ANY WARRANTIES OF DESIGN, FITNESS FOR ANY PARTICULAR PURPOSE, OR MERCHANTIBILITY.

 

13. LIMITATION OF LIABILITY.

A. No liability whatsoever shall attach to FPL until the goods and services at issue in this Agreement have been paid for in full.

B. In no event shall FPL be liable for any incidental or consequential damages resulting from the use, misuse, or inability to use the goods purchased herein.This exclusion applies regardless of whether such damages are sought based on breach of warranty, breach of contract, negligence, strict liability in tort, or any other legal theory. Should FPL nevertheless be found liable for any damages, they shall be limited to the purchase price of the goods and services provided for in the Proposal.

C. In no event shall FPL be liable for any damages, whether direct, indirect or consequential, resulting from failure to perform or delay in performing any obligations under this Agreement whether or not any damages are foreseeable. IfFPL fails to deliver the materials or equipment ordered under this Agreement, Buyer's sole and exclusive remedy shall be to cancel this Agreement and receive a refund of any amounts paid to FPL for goods which will not be delivered.

D. A cause of action for breach of this Agreement, or as to price, quantity or quality must be commenced by Buyer within eighteen (18) months from the date of delivery of the goods provided for herein.

E. Notwithstanding anything to the contrary in this Agreement, Contractor's liability under this Agreement shall be capped at 100% of the P.O. price except for damages (i) attributable to Contractor's negligence or third party indemnification claims, provided that any such damages shall be limited to the Contractor's insurance coverage; (ii) attributable to Contractor's gross negligence or willful misconduct; or (iii) intellectual property indemnification claims.

 

14. INDEMNIFICATION.

Buyer will indemnify and hold harmless FPL, and its directors, officers, employees, agents, shareholders, subsidiaries, and affiliates (collectively, 'the Indemnified Persons') against all claims, lawsuits, losses, liabilities or damages (including attorney fees and costs) arising from or in connection with the performance of this Agreement and the goods and services provided hereunder, including but not limited to the Buyer's or any third party's design and specifications of such goods, the installation of goods or placement of goods in the proper environment, the maintenance, repair, inspection, or alteration of such goods, the use of such goods, and any and all claims stemming from Buyer's negligence, breach of this Agreement, violations of laws, or omissions.. The indemnification provided in this section will be applicable whether or not such claims, lawsuits, losses, liabilities or damages arise out of personal injury or death or property damage and will apply whether due to defects in the goods or to the negligence of Buyer, its affiliates, officers, directors, employees or agents, or any third party. However, in no event will Buyer owe Seller indemnification for Seller's negligence.

 

15. PACKING.

Unless a preferred packing method is specified, all of the equipment is to be packed for shipment and storage in accordance with standard commercial practices for goods of the same type. Provisions for special handling, preservation, waterproofing, weather and hazard protection and the like will be made only upon written request of the Buyer and if made, will be subject to reasonable charges byFPL for all additional costs.

 

16. INSPECTION.

Inspection of equipment in FPL's plant by Buyer or Buyer's representative will be permitted provided, however, prior to inspection Buyer will make necessary arrangements with FPL to minimize disruption of FPL's production activities. FPLreserves the right to restrict access to its plants by Buyer's representatives.

 

17. CHANGES.

No changes shall become effective until made in writing and signed by Buyer andFPL specifying the changes in the Scope of the Work, adjustment of delivery date and change in the purchase price or terms of payment. Provided, however, if FPLmakes any changes requested by Buyer, its agents or inspectors prior to execution of a written change order, FPL shall nevertheless be entitled to an equitable adjustment to the delivery date, purchase payment and terms of payment prior to shipment or completion. Any agreement by FPL to make changes or amendments to this Agreement will not set a course of dealings between FPL and Buyer, and will not prevent FPL from later requiring strict compliance with the terms of this Agreement.

 

18. TOOLING AND MOLDS.

All tools, dies, patterns, moulds and similar items required to produce the goods shall remain the property of FPL.

 

19. ATTORNEY FEES.

The prevailing party in any action shall have the right to recover its costs, expenses and attorney's fees.

 

20. ASSIGNMENT.

Neither party shall assign its rights under this Agreement except that FPL may subcontract portions of the work to be performed under this Agreement and may assign its right to receive payment under this Agreement to its lenders.

 

21. OWNERSHIP AND USE OF DRAWINGS AND SPECIFICATIONS.

Drawings and specifications developed by FPL shall remain the property of FPL.Buyer may retain copies of drawings and specifications for use in connection with goods purchased under this Agreement. Buyer shall not use the drawings and specifications for any other use including duplication of goods, and shall not disclose the drawings or specifications to any third party without the written permission of FPL.

 

22. DELAYS IN PROSECUTION OF THE WORK.

A. The proposed price is based on a timely and continuous prosecution of the work.Buyer shall be responsible for such additional costs and/or delays as may be incurred by FPL resulting from Buyer's failure to approve drawings promptly or give the necessary releases to purchase materials and proceed with fabrication and shipment, as well as any other Buyer/Owner delay.

B. Should Buyer request a hold in fabrication, all costs associated with removal of order from production, storage, rescheduling, reconditioning, restoring equipment to production after removal of Buyer's hold, etc. shall be for Buyer's account. FPLassumes no responsibility whatsoever for any delay or the consequences thereof, in restoring order to production.

 

23. BACK CHARGES.

Any repairs or other work ordered by the Buyer without consulting FPL and allowing FPL to conduct the work, if necessary, shall be at the Buyer's own expense. No claim or back charges will be honoured by FPL for any reason if FPLwas not given the opportunity to 1) determine that the work needed to be done, 2) conduct the work by FPL's personnel or 3) make arrangements for suitable personnel to conduct the work.

 

24. CUSTOMER'S PROPERTY.

FPL is not liable for loss, damage or wear caused to any moulds or property of Buyer by fire, water leakage, theft, negligence or any other cause whatsoever and, at all times, all such property is at Buyer's risk.