Standard Purchase Order Terms and Conditions

     These terms and conditions represent the complete agreement of Berg Chilling Systems Inc. or it’s subsidiaries or affiliates, hereafter known as the “Purchaser” and the Seller for the Contract of any purchase of goods or services, hereafter known as the “Purchase Order”. No terms and conditions in any way modifying the provisions hereof shall be binding upon the Purchaser. All Purchase Orders are made only on the express understanding and condition that in so far as any Purchase Order conflicts with any terms and conditions of seller’s document, these Standard Purchase Order Terms and Conditions shall govern irrespective of whether the Seller accepts these terms and conditions by written acknowledgement.

     All Purchase orders are expressly limited to the acceptance of the Terms and Conditions stated herein. The Purchaser’s failure to object to provisions contained in any communication received from the Seller or acceptance of the goods shall not be construed as being a waiver or modification of the provisions hereof.

1. DISCOUNT TERMS – Discount date, or due date, will be calculated from invoice is received or the date goods are received by Purchaser, whichever date is later.

2. TAXES – Unless otherwise provided herein, all prices shown on the Purchase Order are deemed to include all taxes and duties levied in respect to the goods ordered hereunder. The Purchaser is exempt from certain taxes and will provide proof upon request.

3. PACKAGING AND CRATING – No charges will be allowed for boxing, crating or cartage unless otherwise stated herein. The Seller shall properly pack the goods covered by this order, and the Purchaser may reject items that are not properly packaged or not in suitable containers. Goods damaged in transit due to faulty packing will not be accepted and will be the sole responsibility of the Seller. Terms of sale are DDP Toronto unless otherwise specified. All packages are to contain a full packing list showing in detail the items, quantity and unit of measure supplied in each package, the Purchaser’s Purchase Order Number and the Purchaser’s Job Designation.

4. PRICE PROTECTION – If, during the term of this Contract, Purchaser can purchase goods of equal quality from other source at a lower delivered cost, and furnishes Seller proof of same, Seller shall within ten (10) days after receipt of proof of the lowest delivered cost notify Purchaser of Seller’s election to supply such goods at the lowest delivered cost or permit Purchaser to purchase such goods at the lowest delivered cost from the other source. Any quantity of goods so purchased from another source by Purchaser shall be deducted from the total quantity ordered on this contract, but the contract shall otherwise remain unaffected.

5. DELIVERY – Time is of the essence of all Purchase Orders. If any shipment or delivery is made which is not in all respects in accordance with the provisions of any Purchase Order or the delivery schedule, the Purchaser shall be entitled to reject any shipment or deliveries not then made and cancel this Purchase Order without any liability to Seller and without prejudice to the Purchaser’s rights to claim damages against Seller. Such damages shall include but not be limited to the amount of any penalty which Purchaser has been required to pay its customer by reason of late delivery of equipment and/or goods supplied to such customer by Purchaser when such late delivery was caused by Seller’s failure to make deliveries of the goods in accordance with the delivery schedule of Purchaser. All expenses of transportation and storage shall be for Seller’s account.

6. WARRANTIES – The Seller guarantees that all the goods, material and equipment supplied under this order will be free from defects in material and workmanship and will conform to specifications, drawings or samples given. The Seller further guarantees that all work or services performed hereunder will be free from defects in workmanship. All warranties and service guarantees shall run to both the Purchaser and to its customers and users of its product. All warranties and service guarantees shall continue in force for a period of time which conforms to the standard practice in the Seller’s trade, provided that the period be not less than twelve months from the date upon which the installation of equipment is completed, or services are terminated, or goods, material and equipment purchased under this order are put in to use, in which event the Purchaser, its customers or users of its product are to be protected for the twelve month period by the Seller. In the event of any defect or failure within the warranty period, the Seller agrees to replace defective material or services, including any resulting damages, to other property or penalties incurred as a result of such failures.

7. FORCE MAJEURE – Neither party shall be liable for any delay or failure of performance due solely to strike, fires or other causes beyond its control and without its fault or negligence provided that Seller shall have given notice in writing to Purchaser of any such cause for delay or anticipated delay promptly after first obtaining notice thereof and shall have used its best efforts to make deliveries as expeditiously as possible taking such cause for delay into account. If Seller shall be unable, due to such a cause to meet all of its delivery commitments for the goods ordered herein as they become dues, Seller shall not discriminate against Purchaser in favour of any other customer in making deliveries of such goods. If Purchaser believes that the delay or anticipated delay in Seller’s deliveries may impair its ability to meet its production schedules or may otherwise interfere with its operations Purchaser may at its option and without liability to Seller cancel outstanding deliveries hereunder wholly or in part.

8. INSPECTION – Purchaser shall have a reasonable time after delivery within which to inspect the goods. Purchaser shall give written notice to Seller of any rejection of goods rejected will, at the Seller’s expense, be returned to Seller or otherwise disposed of, as Seller shall reasonably request. The cost of inspection of goods rightfully rejected shall be charged to the Seller.

9. COMPLIANCE WITH LAWS – Seller has and will comply with all laws and regulations of federal, provincial, state and local government, as applicable from which because of non-compliance by the Seller, liability may accrue to Purchaser. Seller agrees to indemnify Purchaser for any liability imposed on Purchaser resulting from such non-compliance by the Seller.

10. PATENTS – Seller guarantees that Purchaser’s purchase, use or sale of the goods furnished on this contract, in the form in which furnished to Purchaser, will not infringe any valid Canadian or foreign patent or copyright and Seller also agrees to indemnify Purchaser and hold Purchaser harmless against all judgements, decrees, damages, cost and expenses recovered against Purchaser or sustained by Purchaser on a account of any such actual or alleged infringement.

11. MODIFICATION – No modification of these terms and conditions shall be effective unless agreed to in writing by an authorized representative of the parties hereto.

12. TERMINATION – If Seller ceases to conduct its operation in the normal course of business (including inability to meet its obligations as they mature) or if any proceeding under the bankruptcy or insolvency laws is brought by or against Seller or a receiver for Seller is appointed or applied for, or an assignment for the benefit of creditors is made by Seller, Purchaser may terminate this order without liability except for deliveries previously made or for goods covered by the order then completed and subsequently delivered in accordance with the terms and conditions of this purchase order. Notwithstanding the above, the Purchaser reserves the right, that in event of partial order completion and delivery, to return or replace any goods without liability where the partial order has lesser or no value to the Purchaser.

13. RESPONSIBILITY AND INDEMNITY OF SELLER – The Seller agrees to assume responsibility for and shall indemnify, defend and save the Purchaser harmless, to the fullest extent permitted by law, from and against any and all claims, actions, causes of actions, suits, debts, duties, accounts, covenants, contracts, demands (including arbitration demands), guarantees, proceedings (including arbitration proceedings) and claims for injuries, property damage (including financial losses), personal injuries (including those to Purchasers’ employees), loss, damages, expenses, costs or attorney’s fees of any kind whatsoever and howsoever arising, including, without limitation, any and all costs arising from the enforcement thereof (the “Claims”) which he Purchaser has had, or may hereafter have by reason of any cause, matter or thing and relating to all claims which the Purchaser made or could possibly have with respect to this Purchase Order or to any goods and services supplied there under.

14. CONFIDENTIALITY – Seller agrees to hold all information provided by Purchaser, in either written or any electronic format, including, but not limited to, design information, drawings, specifications, reports, requests for quotation or proposal, customer information or the like in strictest confidentiality. No dissemination of any information is permitted without explicit written consent of the Purchaser.

15. SELLER’S CONSENT TO JOINDER – In the event the Purchaser is a party to any Claim (as that term is defined in paragraph 13) in any proceedings (including arbitration) involving or relating to this Purchase Order, or the goods and services delivered thereunder, in any manner, the Seller hereby consents to its joinder in such proceedings when a request is made by the Purchaser and the Seller expressly agrees that the foregoing will constitute its consent and agreement to arbitrate such disputes, as third party or additional respondent or defendant or otherwise, in whatever forum and proceeding in which such Claim has been made.

16. GENERAL TERMS – This Purchase Order will be interpreted in accordance with the laws of the Province of Ontario, shall not be changed, modified, terminated, or discharged in all or in part except by instrument in writing and shall ensure to the benefit of and be binding upon the parties hereto and their respective successors, heirs, permitted assigns and legal and personal representatives. Should any part of this order or its application be declared invalid or unenforceable, the remainder of this Purchase Order will not be affected thereby. The Purchaser reserves the right to offset any amounts otherwise due by Seller to Purchaser to be offset against any amounts due hereunder. The Parties hereto have agreed that this Agreement shall be drafted in the English Language. Les parties ci-joint ont decide que cette entente soit redigee dans langue anglaise.