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Purchasing Terms

TERMS FOR ALL PRODUCTS PURCHASED BY M. A. STEWART & SONS (USA) LTD.

1.             Application.  All products (the “Products”) purchased by M. A. Stewart & Sons (USA) Ltd. (“MAS”) after March 15, 2012 from any supplier (“Supplier”) will be purchased on these terms, as amended as set out in (iii) below (the “Terms”).  Notwithstanding the terms of any other contract or any terms of sale or purchase order required by Supplier, by accepting an order from MAS, Supplier agrees that:  (i) the Terms are included in every contract with MAS for the purchase of Products from Supplier; (ii) the Terms supersede any provisions in Supplier’s contract, terms of sale or purchase order that are inconsistent with the Terms; and (iii) no amendment of the Terms is binding on MAS unless MAS agrees to it in writing, or posts it on its website or otherwise communicates it to Supplier (a “Change Notice”).  Each amendment becomes effective when MAS agrees to it in writing or 30 days after MAS posts it on its website or otherwise communicates it to Supplier.  Supplier agrees it has notice of all Change Notices mailed or emailed to it or posted on MAS’ website.

2.             Prices/Payment. Supplier will:  (i) give MAS not less than 60 days’ prior written notice of all changes to prices of Products; and (ii) invoice all orders for Products at the prices of which MAS had notice at the time it placed the orders, provided that if there is a delay in shipment, however caused, Supplier will invoice the order at the lower of the prices in effect when ordered or shipped.  Supplier will not invoice MAS for any costs other than those stated in MAS’s order and the Terms.  Provided there are no shortages or damaged Products, MAS will pay Supplier the purchase price, and all applicable taxes and duties, by the later of 60 days from MAS’ receipt of the Products and invoice therefor or the payment due date last agreed to in writing by MAS with the Supplier.

3.             Title/Transfer/Risk/Delivery.  Title, and risk of loss or damage, to the Products passes to MAS on its receipt of the Products in good condition.  Supplier will deliver the Products to MAS, or as MAS directs, and will pay the cost of freight and insurance to do so.  Supplier will not be liable for delays in delivery beyond its reasonable control, provided it immediately notifies MAS of them.  If any delay lasts beyond the agreed upon “ex works” shipping date, MAS may, without liability (penalty, cancellation fee or otherwise), cancel the order by written notice to Supplier, after which Supplier will immediately return to MAS all money paid or cancel the unpaid invoice.

4.             Rejection/Shortages/Return.  Within 30 days of its receipt of Products, MAS will notify Supplier of any damaged Products or shortages.  MAS may return any damaged Products, at Supplier’s expense, and cancel the order for those Products, whether or not the entire order has been shipped.  MAS may also without cause or liability, but at its expense, return any Products.  Supplier will immediately return to MAS all money paid for returned or cancelled Products or provide Products to complete any orders that were short-shipped to MAS.

5.             Warranty. Supplier warrants that the Products:  (i) are free of all liens, encumbrances and adverse claims, and that MAS will have good and marketable title to them; (ii) comply with all applicable laws in force at the time of delivery; (iii) are new, of merchantable quality and fit for their intended purpose; (iv) conform exactly to the samples, order numbers, specifications, drawings or other descriptions furnished by MAS; and (v) will be free from defects in material, workmanship and design until the expiration of the Warranty Period.  For purposes of the Terms, the Warranty Period begins on receipt by MAS of the Products and expires on:  (a) the date agreed upon in writing by MAS and the Supplier, (b) the first anniversary of the date of installation by MAS’s customer, or (c) the second anniversary of MAS’ receipt of the Products, whichever of (a), (b) or (c) is the first to occur.

6. Repair or Replace.  Within 30 days of receiving a request from MAS within the Warranty Period, Supplier will, at MAS’ election promptly replace or repair all Products that MAS says are defective due to faulty material, workmanship or design, at no charge to MAS or MAS’s customers, fully refund to MAS the price paid for the defective Products or pay to MAS the total cost incurred by MAS to replace or repair the defective Products.  Supplier makes the same warranties for Products it replaces or repairs under this section as under section 5, for a period equal to the Warranty Period but beginning on the date of replacement or repair.

7.             Indemnity/Insurance.  Supplier will, at its expense, protect, indemnify and defend MAS in respect of, and save and hold MAS harmless from and against, all obligations, commitments, costs, damages, claims, liabilities, actions and causes of action arising directly or indirectly from, or in any way connected with, the Products.  Supplier will at its expense obtain and maintain in force all insurance on terms and in amounts as MAS may require from time to time and with insurers approved by MAS.  Supplier will provide proof of insurance to MAS upon request.
8.             Assignment.  Supplier acknowledges that MAS is purchasing the Products for resale and agrees that MAS may assign any or all its rights under the Terms to any purchaser of the Products from MAS, without Supplier’s consent or notice to Supplier.  Supplier will not assign, or purport to assign, any of its rights or obligations under these Terms or any purchase order given by MAS, unless MAS in its sole discretion first agrees in writing.

9.             Additional Agreements of Supplier.  Supplier hereby irrevocably attorns to the exclusive jurisdiction of the courts of North Carolina for all disputes arising out of its relationship with MAS, and agrees:  (i) that its agreement with MAS for the purchase by MAS of Products, including the Terms, is governed by the laws of  North Carolina; (ii) to do all things necessary to implement the Terms; (iii) that a waiver by MAS of any breach by Supplier of any of the Terms is not effective unless in writing signed by MAS; (iv) that no waiver by MAS of any breach of the Terms is a waiver of any continuing, subsequent or other breach; (v) that no waiver will be inferred from, or implied by, anything MAS does or does not do; and (vi) that MAS’ customers may enforce all of MAS’ rights herein against Supplier.

10.           Mutual Agreement.  MAS and Supplier agree that:  (i) references to “the Terms” and words like “herein” refer to the Terms as a whole, and not just to the section in which they appear; (ii) “including” is deemed to be followed by “without limitation”; (iii) headings will not be considered when interpreting the Terms; (iv) time is of the essence of the Terms; (v) all references to MAS agreeing in writing or doing anything in writing refer to documents signed by, or sent by email by, the President or a Vice President of MAS; and (vi) “writing”, “in writing” and “written” includes emails, facsimile and all other means of electronic transmission capable of being read

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