TERMS AND CONDITIONS

LMI TECHNOLOGIES INC. – GENERAL TERMS AND CONDITIONS OF SALE

 

 

 

 

For the purposes of these Terms and Conditions of Sale, the term “contract” shall mean the agreement between LMI Technologies and its Subsidiaries (“Supplier”) and Buyer arising as a result of Buyer’s submission of an order for Supplier’s products. Such contract shall be deemed to incorporate and be governed by these Terms and Conditions. THESE TERMS AND CONDITIONS SHALL TAKE PRECEDENCE OVER ANY TERMS AND CONDITIONS THAT APPEAR IN BUYER’S ORDER OR IN ANY DOCUMENTS INCORPORATED BY REFERENCE IN BUYER’S ORDER. No term or condition of Buyer’s order additional to or different from these Terms and Conditions shall become part of the contract unless explicitly agreed to in writing by Supplier. Retention by Buyer of any products delivered by Supplier, or payment by Buyer of any invoice rendered hereunder, shall be conclusively deemed acceptance of these Terms and Conditions. Supplier’s failure to object to any provision contained in any communication from Buyer shall not be construed as a waiver of these Terms and Conditions, nor as an acceptance of any such provision.

 

1. QUOTATIONS: Prices, specifications and dates for delivery referenced in Supplier’s quotations are for information purposes only and shall not be binding on Supplier until all technical requirements have been agreed and Supplier has accepted Buyer’s order. Quotations terminate if not accepted by Buyer within 60 days, unless a different period is specifically agreed to between Buyer and Supplier.

 

2. ORDERS: By submitting an order to Supplier, Buyer agrees to be subject to these Terms and Conditions of Sale in their entirety. All orders must be bona fide commitments showing definite prices and quantities and mutually agreed shipping dates. No order, whether or not submitted in response to a quotation by Supplier, shall be binding upon Supplier until accepted in writing by Supplier.

 

3. PRICES AND TAXES: Prices do not include federal, state or local taxes, including without limitation sales, use or excise taxes now or hereafter enacted, applicable to the products sold in this transaction, which taxes may, in Supplier’s discretion, be added by Supplier to the sales price or billed separately and which taxes shall be paid by Buyer unless Buyer provides Supplier with any necessary tax exemption certificate.

 

4. SHIPMENT AND DELIVERY: All products will be shipped FCA from Supplier’s premises and may be so shipped in several lots. In the absence of specific instructions, Supplier will select the carrier and ship “collect”, but shall not be deemed thereby to assume any liability in connection with the shipment nor shall the carrier be construed to be the agent of Supplier. Buyer must provide its own insurance. Title and risk of loss or damage to all products sold hereunder shall pass from Supplier to Buyer upon delivery by Supplier to the possession of the carrier, provided that Supplier reserves a purchase money security interest in the products. Any claims for loss, damage or failed delivery thereafter shall be filed with the carrier. All products shall be deemed finally inspected and accepted within ten (10) days after delivery unless notice of rejection is given in writing to Supplier within such period. Acceptance shall constitute acknowledgement of full performance by Supplier of all obligations under the contract except as stated at Section 11 (Warranties).

 

5. TERMS OF PAYMENT:

 

(A) Each shipment shall be a separate transaction and Buyer will be invoiced on date of dispatch. Unless otherwise stated on Supplier’s invoice, terms of payment shall be net thirty (30) days from date of invoice. Supplier may, in its sole discretion, determine at any time that Buyer’s financial condition requires payment in advance, and, if such requirement is not met, may cancel the order or any part thereof.

 

(B) Seller reserves the right to charge interest, or a fee in lieu of interest, at the highest rate allowed by the law on all overdue accounts, plus all costs associated with the collection of such overdue accounts (including, without limitation, attorneys’ fees), with each fraction of a month counted as a full month. Whenever Seller in good faith deems itself insecure, Seller may cancel any outstanding purchase order with Buyer; decline to make delivery of products to Buyer; revoke any extension of credit to buyer; reduce any unpaid debt by enforcing its security interest, created hereby, in all products (and proceeds therefrom) furnished by Seller to Buyer; and take any other steps necessary or desirable to secure Seller fully with respect to Buyer’s payment for products and services furnished or to be furnished by Seller.

 

6. CONTINGENCIES: Supplier shall not be liable for any delay in delivery or for non-delivery, in whole or in part, caused by the occurrence of any contingency beyond the control of Supplier, including, by way of illustration but not limitation, war (whether an actual declaration thereof is made or not), sabotage, insurrection, riot or other act of civil disobedience, act of a public enemy, failure or delay in transportation, export embargoes, act of any government or any agency or subdivision thereof, judicial action, labor dispute, accident, fire, explosion, floods, storm or other act of God, shortage of labor, fuel, raw material or machinery or technical failure where Supplier has exercised ordinary care in the prevention thereof. If any such contingency occurs, Supplier may allocate production and deliveries among Supplier’s customers.

 

7. EQUIPMENT: Supplier may modify specifications provided the modifications do not adversely affect the performance of the equipment to be supplied under the contract (“the equipment”). In addition, Supplier may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by government authority, or availability of materials from suppliers, provided Supplier gives Buyer 60 days written notice of changes and acceptance is made by Buyer. In the event that the changes made by Supplier are not acceptable to the Buyer, Buyer may cancel any orders for the equipment without any further cost or obligation to purchase.

 

8. SOFTWARE:

 

(A) Supplier shall at all times have and retain title and full ownership of all (embedded) software, firmware programming routines, and documentation thereof supplied by Supplier for use with or on the equipment, and of all copies thereof made by Buyer (collectively “software”). 

 

(B) Supplier grants Buyer a non-exclusive and non-transferable license to use such software solely for use with the equipment. If equipment comes with packaged access rights to SaaS (Software As A Service) based software, Buyer shall receive a right to access the software for an indeterminate period following the date of purchase of the equipment. In the unlikely event that Supplier is in a position that it can no longer provide SaaS access rights, these rights can be terminated by Supplier subject to 12 months’ prior e-mail notice.   

 

(C) Supplier shall within a reasonable time frame after a security fix has been generally made available by the relevant software publisher, apply the fix to embedded software on the equipment. Fixes will be triggered remotely over IP using the ethernet connection of the equipment. In the unlikely event that a security risk is suspected in embedded software in specific equipment, Supplier will be entitled to temporarily quarantine the relevant equipment and disconnect it from any associated Supplier provided SaaS based software. 

 

(D) Buyer shall take all reasonable steps to protect Supplier’s proprietary interest in the software and shall not transfer or otherwise provide the software to any third party. 

 

(E) Buyer will not disassemble, decompile, reverse engineer, modify or create derivative works of software and associated documentation, nor permit any other party to do so, except to the extent such restrictions are prohibited by applicable mandatory local law. If and to the extent that applicable mandatory law provides a right to decompile software for the purpose of establishing interoperability with another computer program, Buyer shall first request the required interface information from Supplier. Only if Supplier has failed to provide the required interface information within 7 calendar days of its receipt of Buyer’s request, Buyer shall be allowed to enforce its decompilation rights.

 

9. LICENSE TO USE BUYER DATASETS: In all cases whereby Supplier receives an  (annotated) dataset for machine learning purposes from Buyer or is instructed by Buyer to compile a dataset with Buyer specific data, Buyer is presumed to hereby have provided a license to Supplier as further described below. Supplier may use such Buyer datasets, including any derivative works that Buyer creates from it, for the creation of contracted machine learning models and for other reasonable business purposes it may have from time to time. These reasonable business purposes include but are not limited to using the dataset to train models for other applications. Buyer accepts that a dataset does not represent Buyer confidential information. Supplier will however not share Buyer datasets with any third party without Buyer’s prior permission. The license granted above has a worldwide scope, is royalty free, not limited in time, and cannot be revoked by Buyer. 

 

10. BUYER USE OF AI OUTPUT DATA:

 

(A) Buyer accepts that data generated by products with embedded software based artificial intelligence models (output data), e.g., output data of a production line camera provided by Supplier with vision-based recognition capabilities using a Supplier trained artificial intelligence model, shall only be accessible to Buyer by means of a Supplier provided software interface.

 

(B) To the maximum extent allowed by applicable mandatory law, Buyer hereby accepts that the day-to-day production use by Buyer of output data, shall be for the sole risk of Buyer. Buyer shall be deemed to have sole control over and responsibility for all risks related to or associated with the use of output data, including any associated programming of Buyer site production systems. Buyer will indemnify and hold Supplier, its employees, agents, and contractors fully harmless for any adverse financial consequences connected with the materialization of such a risk. Adverse financial consequences may include but are not limited to health and safety risks, production of faulty Buyer products and required destruction of Buyer produced foodstuffs.

 

11. LIMITATIONS OF WARRANTIES: 

 

(A) Supplier warrants that all equipment (unless specifically excluded) shall be free from defects in material and workmanship under normal use for a period of one to five years (depending on the product) from date of shipment to Buyer save that Supplier does not warrant that operation of (embedded) software will be completely uninterrupted or error free or that all program errors will be corrected. Buyer shall be responsible on an ongoing basis for monitoring and/or determining that the equipment included associated (embedded) software, when in use, performs in accordance with Buyer’s intended functional performance requirements, is suitable for Buyer’s use and that such use complies with any applicable local, state or federal law. Provided that Buyer notifies Supplier in writing of any claimed defect in the equipment immediately upon discovery and any such equipment is returned to the original shipping point, transportation charges prepaid, within one year from date of shipment to Buyer and upon examination Supplier determines to its satisfaction that such equipment is defective in material or workmanship, i.e. contains a defect arising out of the manufacture of the equipment and not a defect caused by other circumstances, including, but not limited to accident, misuse, unforeseeable use, neglect, alteration, improper installation, improper adjustment, improper repair, or improper testing, Supplier shall at its option repair or replace the equipment, shipment to Buyer prepaid. Supplier shall have reasonable time to make such repairs or to replace such equipment. Any repair or replacement of equipment shall not extend the period of warranty. This warranty is limited to a period of one year, without regard to whether any claimed defects were discoverable or latent on the date of shipment.

 

(B) If Buyer fails to pay when due any portion of the purchase price or any other payment required from Buyer to Supplier under this contract or otherwise, all warranties and remedies granted under this Section 11 may, at Supplier’s option, be terminated.  

 

(C) THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS, WARRANTIES AND COVENANTS, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT AND ANY DEFECTS THEREIN OF ANY NATURE WHATEVER, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SUPPLIER SHALL NOT BE LIABLE FOR, AND BUYER ASSUMES ALL RISK OF, ANY ADVICE OR FAILURE TO PROVIDE ADVICE BY SUPPLIER TO BUYER REGARDING THE EQUIPMENT OR BUYER’S USE OF THE SAME. UNDER NO CIRCUMSTANCES SHALL SUPPLIER BE LIABLE TO BUYER UNDER ANY TORT, NEGLIGENCE, STRICT LIABILITY, OR PRODUCT LIABILITY CLAIM AND BUYER AGREES TO WAIVE SUCH CLAIMS. SUPPLIER’S SOLE AND EXCLUSIVE LIABILITY, AND BUYER’S SOLE AND EXCLUSIVE REMEDY, FOR ANY NONCONFORMITY OR DEFECT IN THE PRODUCTS OR ANYTHING DONE IN CONNECTION WITH THIS CONTRACT, IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, SHALL BE AS SET FORTH IN SUBSECTION 11A HEREOF AS LIMITED BY SUBSECTION 11B HEREOF. THIS EXCLUSIVE REMEDY SHALL NOT HAVE FAILED OF ITS ESSENTIAL PURPOSE (AS THAT TERM IS USED IN THE UNIFORM COMMERCIAL CODE) PROVIDED THAT THE SUPPLIER REMAINS WILLING TO REPAIR OR REPLACE DEFECTIVE EQUIPMENT (AS DEFINED IN SUBSECTION 11A) WITHIN A COMMERCIALLY REASONABLE TIME AFTER RECEIVING SUCH EQUIPMENT. BUYER SPECIFICALLY ACKNOWLEDGES THAT SUPPLIER’S PRICE FOR THE EQUIPMENT IS BASED UPON THE LIMITATIONS OF SUPPLIER’S LIABILITY AS SET FORTH IN THIS CONTRACT.

 

12. LIMITATION OF LIABILITY AND BUYER INDEMNITY: IN NO EVENT, REGARDLESS OF THE FORM OF ACTION, SHALL SUPPLIER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL LOSSES OR DAMAGES ARISING OUT OF THE SALE OF ITS PRODUCTS TO BUYER OR ARISING OUT OF ANYTHING DONE IN CONNECTION WITH THE CONTRACT, INCLUDING, BUT NOT LIMITED TO, LOSSES OR DAMAGES ARISING OUT OF CLAIMS FOR LOSS OF USE, BUSINESS, GOODWILL, OR PROFITS, AND CLAIMS ARISING OUT OF THIRD PARTY ACTIONS, REGARDLESS OF WHETHER SUCH THIRD PARTY ACTIONS, OR ANY OTHER CLAIMS, LOSSES, OR DAMAGES, WERE REASONABLY FORESEEABLE TO BUYER OR SUPPLIER. BUYER’S EXCLUSIVE REMEDY ARISING OUT OF ITS PURCHASE AND USE OF SUPPLIER’S PRODUCTS, OR ARISING OUT OF ANYTHING DONE IN CONNECTION WITH THE CONTRACT, SHALL BE FOR DAMAGES AND NO CLAIM OR CLAIMS OF ANY KIND, WHETHER BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WARRANTY AND STRICT LIABILITY), STATUTORY OR REGULATORY PROVISIONS, INDEMNITY, CONTRIBUTION, OR OTHERWISE, SHALL BE GREATER IN AMOUNT IN AGGREGATE THAN THE PURCHASE PRICE OF THE PRODUCTS IN RESPECT OF WHICH DAMAGES ARE CLAIMED. Buyer shall indemnify and hold harmless Supplier, its officers, agents, employees, subsidiaries, parents, affiliates and insurers from and against any and all liabilities, damages, losses, claims, lawsuits, including costs and expenses in connection therewith, for death or injury to any persons or loss of any property whatsoever, caused in any manner by Buyer’s possession, use or operation of equipment.

 

13. PROPRIETARY INFORMATION: Buyer represents that it has adopted reasonable procedures to protect Proprietary Information, as defined hereafter, including binding agreements with employees and consultants to prevent unauthorized publication, disclosure or use of such during or after the term of their employment by or services for Buyer. Buyer shall not use Proprietary Information except as required for the use of the equipment, shall not disclose Proprietary Information to any third party, and shall not transmit any documents or copies thereof containing Proprietary Information to any third party, except as may be authorized in writing by Supplier. This Section 13 shall survive termination of the contract. “Proprietary Information” shall mean information or data of Supplier, or a third person to whom Supplier owes obligations of confidentiality, and which is furnished or to be furnished to Buyer in written, graphic or machine-readable form and is marked proprietary or confidential. Where copies or alternative forms of information or data are received from Supplier, such information or data shall be considered Proprietary Information if at least one of said copies or alternative forms is marked proprietary or confidential. This Section 13 shall not apply to information which Buyer demonstrates was in Buyer’s possession prior to receipt from Supplier or information which Buyer demonstrates is or has become available to the public or general knowledge in the industry otherwise than through the fault of Buyer.

 

14. RESCHEDULING AND CANCELLATION: All orders are non-cancellable and non-returnable unless deemed otherwise at the discretion of the Supplier. Supplier shall have the right without penalty or payment to cancel any order accepted (i) if Buyer fails to make any payment when due to Supplier under the contract or any other contract (ii) if Buyer violates any of these Terms and Conditions, or (iii) if Buyer’s credit becomes impaired. Buyer may reschedule any order at the discretion of the Supplier.

 

15. NON-WAIVER REMEDIES: No waiver of any breach of these Terms and Conditions shall constitute a waiver of any prior or subsequent breach of any similar or dissimilar provision or a modification of the contract. All Supplier rights and remedies, whether evidenced hereby or by any other contract or document, shall be cumulative and nonexclusive and may be exercised singularly or concurrently.

 

16. APPLICABLE LAW AND ACTIONS TO RECOVER DAMAGES: These Terms and Conditions have been created with reference to the laws of the British Columbia, Canada. If any provision of these Terms and Conditions is held to be unenforceable, such holding shall not affect the enforceability of any other provision. Any legal presumption that terms in this contract shall be strictly construed against the party who drafted such terms or who benefits from such terms shall not be employed in construing and interpreting this contract. Prior to commencement of any legal proceedings, Buyer and Supplier shall meet at a senior level to attempt to resolve differences. Notwithstanding any attempts to resolve differences or negotiations regarding such differences, any action brought by Buyer against Supplier arising out of this contract or Buyer’s purchase and use of the equipment must be commenced within one year after such action accrues and in no event later than two years after date of shipment of such equipment.

 

17. EXPORT CONTROL: Buyer acknowledges that the equipment is subject to applicable export laws, rules and regulations (“Applicable Export Laws”), and as such the equipment may be restricted or prohibited with respect to the Buyer, or the country or nature of end-use. Buyer understands and accepts that such Applicable Export Laws shall include, but shall not be limited to, those of Canada, the United States of America (USA), and the European Union (EU) and the laws of the jurisdiction in which the equipment is utilized. Buyer understands and accepts that Supplier shall not dispatch any Equipment to the Buyer for use, diversion, export, re-export or import of equipment: (a) to or in a restricted country; (b) by any entity or person on any denial/debarment list; or (c) for any prohibited use, as designated by Applicable Export Laws. Applicable Export Laws are subject to change and the onus is upon the Buyer to ensure that it familiarises itself with Applicable Export Laws which specify: (a) restricted countries; (b) denial/debarment lists; and (c) prohibited uses. The Buyer hereby gives warranty to Supplier that the Buyer shall not utilise, divert, export, re-export or import, and shall not permit any third-party to utilise, divert, export, re-export or import, any equipment: (a) to or in a restricted destination; (b) to any entity or person listed on any denial/debarment list; or (c) for any prohibited use, as designated by Applicable Export Laws. If Supplier, in its sole discretion, should determine that the delivery of the Products in any manner would not be in full compliance with relevant national or international export controls related laws and regulations, then the Supplier shall have the right to declare that any such delivery obligation is null and void without liability whatsoever, and the Agreement shall automatically terminate. Supplier shall have the right to be compensated for any costs incurred as a consequence of non-compliance with export related laws and regulations by the Buyer. Supplier shall in such event not be responsible for price, delivery or schedule consequences resulting from the aforementioned non-compliance.

 

18. ASSIGNMENT: The contract shall be binding upon and inure to the benefit of the parties and their respective legal representatives, successors and permitted assigns. The contract is personal to Buyer, and Buyer may not assign any of its rights or delegate any of its obligations thereunder, in whole or in part, without the prior written consent of Supplier which may be withheld for any reason.

 

19. COMPLETE AGREEMENT; MODIFICATIONS:  This contract constitutes the entire agreement between the parties relating to the sale of the equipment and no addition to or modification of any provision of said agreement shall be binding upon Supplier unless agreed in writing by Supplier.

 

20. NOTICES: All notices given under the contract shall be in writing, mailed by first class mail, certified or registered, e-mail or delivered by hand to the address of the other party set forth in the quotation or to such other address as such party may designate from time to time by such notice, and shall take effect when received.

 

Purchase Order - Terms & Conditions

Document 24031 Ver.Rev: 3.03

The following provisions with their terms and conditions become part of the purchase order when specified in the purchase order. Compliance with the provisions of these clauses in no way relieves the Supplier from furnishing acceptable supplies or services as specified in the purchase document. As used herein, “Seller” includes Seller, its subsidiaries and affiliates; “LMI” means LMI Technologies Inc.

Seller and LMI hereby agree as follows:

1. SERVICES & DELIVERABLES

Seller agrees to perform the services (“Services”) and/or provide the goods (and any services ancillary thereto) (collectively referred to as “Goods”), described in the purchase order to which these Purchase Order Terms and Conditions are attached or referenced, in accordance with the applicable purchase order, scope of work described in the applicable purchase order and with these Purchase Order Terms and Conditions (collectively, this “Agreement”). Upon acceptance of a purchase order, shipment of Goods or commencement of Services, Seller will be bound by the provisions of this Agreement. This Agreement does not constitute an irrevocable offer by LMI and may be revoked at any time by LMI prior to acceptance by Seller. Any terms or conditions contained in any acknowledgment, invoice or other communication of Seller, which are inconsistent with this Agreement, are hereby acknowledged by Seller as being without effect. LMI hereby reserves the right to reschedule any delivery or cancel any purchase order issued at any time and be liable only for that material and labour actually incurred in the performance of the work as of the date of cancellation. Notwithstanding the foregoing and unless stated otherwise in the Agreement LMI may reschedule or cancel (in whole or part) the purchase order without any charges or other fees as a result of such cancellation provided it gives 30 (thirty) calendar days’ notice to the Seller prior to the delivery date identified on the purchase order for the Goods.

2. DELIVERY

Time is of the essence. Goods must be consigned to the destination specified in this Agreement and, except as otherwise stated herein, delivered per the Incoterm and delivery date(s) stated on the purchase order at LMI’s designated premises per Incoterms 2010. LMI reserves the right to return, shipping charges collect, all Goods received earlier than one week in advance of the delivery schedule. In the event Seller fails to deliver the Goods within the time specified, LMI may, at its option, decline to accept the Goods and terminate this Agreement without penalty or may demand its allocable fair share of Seller’s available Goods and terminate the balance of the Agreement without penalty. Acknowledgment of delivery of Goods by LMI will not constitute acceptance. Seller will package all Goods in suitable containers to permit safe transportation and handling. Each delivered container must be labeled and marked to identify contents, including quantities and weight, without opening, and all boxes and packages must contain packing sheets listing the contents of the box or package. Seller’s name and address, the packing slip number, and LMI’s purchase order number must appear on all shipping containers, packing sheets, delivery tickets and bills of lading.

2.1 SHIPPING INSTRUCTION:

Do not insure the shipment LMI PO number is required on the shipment waybill. Purchaser to provide required information to supplier.

2.2 Order Confirmations

Supplier will provide PO confirmation within two business days.

3. PAYMENT; INVOICING

As full consideration for the performance of the Services, delivery of the Goods and the assignment of rights to LMI as provided herein, LMI will pay Seller, less withholding taxes, if applicable, the amount agreed upon and specified in the applicable purchase order. Applicable taxes and other charges such as shipping costs, duties, customs, tariffs, and government imposed charges will be stated separately on Seller’s invoice. Payment by LMI will not constitute acceptance of the Services or Goods. All taxes assessable upon the Goods prior to receipt by LMI of Goods will be borne by Seller. Each invoice must reference the applicable purchase order, LMI reserves the right to return all incorrect invoices and such incorrect invoice will be deemed not to have been delivered. Each invoice will include a sufficient description of the Goods and/or Services supplied, as well as LMI’s purchase order number (shown on the face of the purchase order). When shipment is made from outside of Canada, customs invoices must be certified in accordance with Canada Border Services Agency rules and regulations. Seller is responsible for all customs, duties and other charges applicable on importation into Canada unless otherwise agreed between the parties in writing.

4. WARRANTIES

4.1 Services:

Seller represents and warrants that all Services will be completed in a professional, workmanlike manner, with the degree of skill and care that is ordinarily exercised by a prudent, competent and experienced professional person performing the same services as the Services. Further, Seller represents, warrants and covenants that the Services will be completed in accordance with applicable specifications and will be correct and appropriate for the purposes contemplated by this Agreement. Seller represents and warrants that the performance of Services under this Agreement does not, and will not, conflict with, or be prohibited in any way by, any other agreement or statutory restriction by which Seller is bound.

4.2 Goods:

Seller warrants that all Goods provided will be new, have never been in service, conform to the latest issue of the applicable drawing, specifications and part number, are of current production or manufactured less than 2 years before the date of the purchase order, do not contain any recycled, surplus or remanufactured materials or components, will be free and clear of all charges, liens, claims and encumbrances. Seller has good and marketable title to the Goods and any goods delivered ancillary to the Services. Seller is aware of the intended use of the Goods and warrants that the Goods supplied are reasonably fit for their intended use. Seller warrants that all Goods delivered will be free from defects in design, materials and workmanship and will conform to all specifications and requirements of this Agreement for a period commencing on the date of delivery to LMI and ending one year from the acceptance of the Goods.

4.3 Warranty Remedies:

If LMI identifies a warranty problem with the Goods during the warranty period, LMI will promptly notify Seller of such problems and will return the Goods to Seller, at Seller’s expense. If Goods are returned, then within five (5) business days of receipt of the returned Goods, Seller will, at LMI’s option and Seller’s expense, either (i) repair or replace such Goods, (ii) credit LMI’s account for the same or (iii) refund the amount paid by LMI for the refund Goods. Replacement and repaired Goods will be warranted for the remainder of the warranty period plus the time during which the Goods were unavailable for use or six (6) months from the date of repair or replacement, whichever is longer.

5. QUALITY

5.1 Control of Quality (ISO 9001):

The Supplier shall provide evidence of registration to a Quality Management System that complies with the current revision of IATF 16949 or ISO9001or an equivalent system. The Quality Management System must demonstrate that the supplier is able to consistently provide products or services that meets the standards as approved by LMI Technologies Inc. The Quality Management System shall be subject to audit by an LMI Technologies Inc. representative. A waiver for demonstrating a QMS will be LMI’s prerogative based upon evidence that the supplier can provide goods and services that meets LMI’s design specifications.

5.2 Supplier’s Quality Management System evaluation:

The Supplier shall submit to LMI Technologies Inc. a letter, certificate, or documentation that demonstrates compliance to the QMS system requirement. LMI may periodically request verification of the QMS status.

5.3 Calibration System Requirements (ISO 17025):

The Supplier is responsible for providing calibration services that are compliant with ISO 17025 and a calibration report must accompany all calibration services rendered. Calibration services that do not meet these requirements may be deemed non-compliant, and returned to the supplier.

5.4 Production Part Approval Process (PPAP) & First Article Inspection

5.4.1 PPAP:

When required by the Purchase Order, parts or products are subject to LMI’s Production Part Approval process (PPAP) process. The PPAP process allows for a controlled evaluation of the supplier’s production process to meet the part new or revised design specifications that are released in change order. The Supplier must provide evidence of the part meeting design specification and supplier’s process capabilities as requested through the LMI Production Part Approval Process (PPAP) submission checklist. Following submission of the PPAP documentation and/or samples to LMI, the supplier must ensure that a signed off PPAP warrant is received from LMI prior to shipment against LMI Purchase Orders.

5.4.2 First Article Inspection:

In some instances, First Article Inspection will be requested for non-production parts: prototype parts or supplier’s samples. The PO will indicate in the comments section to provide a First Article Inspection report with labelled samples and any other supporting documentation. The Supplier’s test data and manufacturing records shall accompany the first article. If the first pieces delivered fail to meet the drawing/specification and purchase order requirements, LMI may require another batch before moving to production. This procedure shall be followed until an acceptable first article has been provided. Acceptance of this first article shall not be considered as acceptance of subsequent items.

5.5 Identification and traceability:

The supplier shall prescribe and implement suitable means for identifying products, components, and material in written procedures throughout all stages from acceptance, to manufacture, release and logistics (including secondary sources and after). The supplier shall stipulate and implement the procedures for identifying process stages (Ex. before or after powder coating, anodizing, heat treatment, etc.) The supplier shall prescribe and implement the procedures for identifying whether inspection has been conducted, product is accepted or rejected or withheld.

5.5.1 Changes in Manufacturing Process:

When Supplier desires to change the fundamental manufacturing process, the Supplier shall notify LMI in writing within a reasonable period (no less than thirty (30) days under normal circumstances) prior to the effective date of the proposed change. The minimum thirty (30) days notice may be waived by LMI should an emergency change be required. Example of changes which require notification include, but are not limited to, the following:

  • Changes in material
  • Changes in major fabrication, processing or manufacturing equipment
  • Changes in major test equipment
  • Changes in test methods or environment
  • Changes in manufacturing facility locations
  • Changes in production line layout
  • Changes in sourcing (when second sourcing / re-sourcing)
  • When part resubmission is required due to supplier inactivity over all parts or for a specific part when inactivity has been more than 12 months.
Part or manufacturing process must be submitted for PPAP when the purchase order is placed. Supplier shall implement such changes in the process only if collected quality/evaluation data verifies that quality and reliability levels would be sustained and/or improved as a result of such change. Note: Supplier shall make no changes to Processes without prior written authorization from LMI.

5.5.2 Changes to Parts/Product:

Supplier shall notify LMI in writing as set forth in 5.5.1 above, prior to implementing any of the following types of changes to the Products:

  • Any changes that affect the fit, form (including appearance) or function of the Products
  • Any change of a programmed part on the Products
  • Any changes to the Products affecting clock speeds
  • Any change to a custom or semi-custom Integrated Circuit (IC)
  • Any change made to correct a problem in an LMI applications, made at the request of LMI Solutions
  • Any changes made to the circuit board fabrication
  • Any changes to critical component specification or approved Supplier. Critical components will be determined by mutual agreement between LMI and Supplier.
  • Any changes in reliability or product life
  • Any update of specified compliance standards that impacts product design or labelling

Note: Supplier shall make no changes to Products without prior written authorization from LMI Solutions.

5.5.3 Engineering Change Orders.:

Supplier shall have the capability to manage Engineering Change Orders (ECO). This capability shall be managed throughout all stocking locations and implemented in a timely manner. Supplier shall co-ordinate with LMI in writing, prior to implementing any change to the Product that may impact form, fit, function, quality, reliability, serviceability or safety.

5.5.4 Re-Qualification:

Major changes in manufacturing process or product construction/design will require requalification and/or process re-certification to the Product Specification. Where a Supplier seeks to make a change for its own purposes, LMI may require at its sole discretion that the Supplier perform reliability tests at its own expense to confirm an equivalent or improved reliability of the Products. Supplier shall coordinate notification of planned major changes with LMI. At LMI request, Supplier shall run a pilot production. PPAP re-submission will be required if requested by LMI. Note: Changes initiated by LMI are communicated to suppliers with Change Order (CO) and LMI is responsible for reasonable expense necessary to implement such requested change, including provision of Purchase Orders for PPAP parts.

5.6 Labelling / Packaging:

Supplier shall comply with the requirements specified in the drawings and engineering specification documents for Part Identification Label, Bar Coding Marking Standard and packaging procedures. These requirements apply for new units as part of new orders and for reworked, repaired or new units shipped to replace failed units at LMI facilities or in the field.

5.7 Appearance Items:

Supplier shall comply with the requirements specified in the Drawings and engineering documents for cosmetics requirements. For the supplier producing parts designated by LMI as an appearance item, the following controls are required; - Designated on the process control plan as an appearance item - Provide appropriate lighting for evaluation - Provide masters for color, grain, gloss metallic brilliance, texture, as appropriate, with one set of master samples to be submitted to LMI for approval - Adequate maintenance and control of appearance masters - Verification that personnel making appearance evaluations are competent and qualified

5.8 Source Inspection – LMI Technologies Inc.:

LMI Technologies Inc. reserves the rights to inspect any or all of the work related to products/services provided to LMI Technologies Inc. This can be in the form of LMI audits as stated in clause 5.1 or a site visit

5.9 Purchased (OEM) Components:

Each shipment shall be accompanied by a Certificate of Conformance signed by an authorized representative, stating that all articles furnished meet the applicable specifications, in accordance with the purchase order. If the Supplier is not the manufacturer, the certification must show the name and address of the manufacturer. Certificate of Origin, REACH and RoHS Compliance Certificates to be submitted to LMI ([email protected]) on an annual basis.

5.10 Objective Data – Manufacturing (LMI Custom) Components:

Each shipment must be accompanied by one (1) copy of the Test Data Sheets / Inspection Reports, signed by a responsible representative of the Supplier. It must be traceable to each material and LMI part number, attesting conformance to the requirements. The data sheets should contain actual and specified parameters.

5.11 Subcontracts:

The subcontracting of any part of the specified services or purchase of materials or components from the secondary market by the Seller will require LMI Technologies prior written permission.

5.12 Materials and Workmanship:

The materials and workmanship shall conform to industry/regulatory accepted practice, or as specified in the applicable specification/drawing. Supplier must advise with regards to dimensions or specifications if it is unable to meet final drawing specifications prior to contractual agreement. Any requested deviations are subject to LMI’s stakeholder acknowledgment for concession waiver. For all PCB Assemblies, compliance with Class II of the latest IPC-A-610 is required. For all metal parts, Mill Certificate of material to be submitted. Material specified in drawings must be used.

5.13 Electrostatic Sensitive Devices (ESD):

Any parts supplied on this order, which are susceptible to damage by electrostatic discharge, must be packaged in conductive ESD protective packaging in accordance with industry accepted practice. Labels indicating ESD sensitivity must be affixed to the packaging. Evidence of an effective ESD program for handling, packaging and storing such devices must be available to LMI Technologies Inc. representative.

5.14 Product Finishing:

LMI Technologies Inc manufactures imaging related products, the supplied parts/products must be free from burrs, dusts, oil or other contaminants. In case of special cleaning requirements, LMI will identify the requirements in the drawing (i.e. OPTICAL PART – MUST BE FREE OF DIRT, DEBRIS AND CONTAMINATION). As the level of cleanliness is always subjective, the supplier is responsible to clarify the requirements with LMI and determine the requirements for conformance.

5.15 Product Packaging Requirements:

LMI Technologies requires a standard documented packaging instruction from its suppliers. It is the supplier’s responsibilities to make sure the parts are protected from all types of damage during transit. Paper material for wrapping of parts is unacceptable.

5.16 Transport Documentation:

LMI requires all shipments to include NAFTA certification, Certificate of Origin, commercial invoice(s), and any other necessary documents to ensure the goods are cleared efficiently and quickly. Any custom/transportation charges relating to the lack of the above documents will be charged to the supplier for the amount of the charge invoiced to LMI.

5.17 INSPECTION:

Goods received prior to inspection will not be deemed accepted until LMI has run an adequate test to determine whether the Goods conform to the specifications or sample provided. Use of a portion of the Goods for the purpose of testing will not constitute an acceptance of the Goods. If Goods supplied do not wholly conform to the specifications or samples, LMI will have the right to reject such Goods. Nonconforming Goods will be returned to Seller freight collect and risk of loss will pass to Seller upon LMI’s delivery to the common carrier or Seller, whichever is earlier.

6. INDEPENDENT CONTRACTOR

Seller is an independent contractor for all purposes, without express or implied authority to bind LMI by contract or otherwise. Neither Seller nor its employees, agents or subcontractors (“Seller’s Assistants”) are agents or employees of LMI, and therefore are not entitled to any employee benefits of LMI, including but not limited to, coverage under any type of insurance. Seller will be responsible for all costs and expenses incidental to performing its obligations under this Agreement and will provide Seller’s own supplies and equipment.

7. SELLER RESPONSIBLE FOR TAXES

Seller will be solely responsible for paying all federal, provincial and municipal taxes, levies or fees, including estimated taxes and employment taxes, due with respect to Seller’s receipt of payment under this Agreement. LMI will have no responsibility to pay or withhold from any payment to Seller any federal, provincial or municipal taxes or fees.

8. INDEMNITY

Seller will indemnify, hold harmless, and, at LMI’s request, defend LMI, its officers, directors, customers, agents and employees, against all claims, liabilities, damages, losses and expenses, including legal fees and the costs of any action arising out of or in any way connected with the Goods or Services provided under this Agreement, to the extent such is caused in whole or part by Seller or any of its suppliers or agents, including, without limitation: (i) any claim based on the death or bodily injury to any person, destruction or damage to property, or contamination of the environment and any associated clean-up costs; (ii) any claim based on the negligence, omissions or willful misconduct of Seller or any of Seller’s Assistants; (iii) any claim by a third party against LMI alleging that the Goods or Services, the results of such Services, or any other products or processes provided under this Agreement, infringe a patent, copyright, trademark, trade secret or other proprietary right of a third party, whether such are provided alone or in combination with other products, software or processes; (iv) any lien filed or claimed by Seller or any supplier or permitted subcontractor against real or personal property of LMI; and (v) any breach of this Agreement by Seller. Seller will not settle any suit or claim involving LMI without LMI’s prior written approval.

9. CONFIDENTIALITY

Seller may acquire knowledge of LMI Confidential Information (as defined below) in connection with its performance hereunder and agrees not to disclose and to keep such LMI Confidential Information in confidence during and following termination or expiration of this Agreement. “LMI Confidential Information” includes but is not limited to all information, whether written or oral, in any form, including without limitation, information relating to the research, development, products, methods of manufacture, trade secrets, business plans, customers, vendors, finances, personnel data, Work Product (as defined herein) and other material or information considered proprietary by LMI relating to the current or anticipated business or affairs of LMI which is disclosed directly or indirectly to Seller. In addition, LMI Confidential Information means any third party’s proprietary or confidential information disclosed to Seller in the course of providing Services or Goods to LMI. LMI Confidential Information does not include any information (i) which Seller lawfully knew without restriction on disclosure before LMI disclosed it to Seller, (ii) which is now or becomes publicly known through no wrongful act or failure to act of Seller, (iii) which Seller developed independently without use of the LMI Confidential Information, as evidenced by appropriate documentation or (iv) which is hereafter lawfully furnished to Seller by a third party as a matter of right and without restriction on disclosure. In addition, Seller may disclose Confidential Information which is required by law to be disclosed so long as Seller provides prompt notice to LMI of such requirement prior to disclosure. Seller agrees not to copy, alter or directly or indirectly disclose any LMI Confidential Information. Additionally, Seller agrees to limit its internal distribution of LMI Confidential Information to Seller’s Assistants who have a need to know such information. In no event will Seller use less than the degree of care and means that it uses to protect its own confidential information, but in any event not less than all reasonable and prudent care to prevent the unauthorized use or disclosure of LMI Confidential Information.

10. TERMINATION

LMI may terminate this Agreement, by written notice to Seller, upon or if Seller takes any step to do any of the following: (i) if Seller fails to perform or otherwise breaches this Agreement; (ii) Seller avails itself of any creditor protection legislation; or (iii) Seller becomes insolvent or dissolves. In the event of such termination, LMI will pay Seller for the portion of the Services satisfactorily performed and those conforming Goods delivered to LMI through the date of termination. LMI may terminate this Agreement for any other reason upon thirty (30) days’ written notice to Seller. Seller will cease to perform Services and/or provide Goods under this Agreement on the date of termination specified in such notice. In the event of such termination, LMI will be liable to Seller only for those Services satisfactorily performed and those conforming Goods delivered to LMI through the date of termination. Upon the expiration or termination of this Agreement for any reason: (i) each party will be released from all obligations to the other arising after the date of expiration or termination, except for those obligations which by their nature survive such termination or expiration.

11. SEVERABILITY

If any provision of this Agreement is deemed to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.

12. LIMITATION OF LIABILITY

IN NO EVENT WILL LMI BE LIABLE TO SELLER, SELLER’S ASSISTANTS OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (WHICH ARE DEEMED TO INCLUDE LOST PROFITS) ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, WHETHER OR NOT LMI WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LMI’S LIABILITY IS LIMITED TO THE AMOUNT SHOWN ON THE FACE OF THE ATTACHED PURCHASE ORDER.

13. ASSIGNMENT; WAIVER

Seller may not assign this Agreement or any of its rights or obligations under this Agreement, without the prior written consent of LMI. Any assignment or transfer without such written consent will be null and void.

14. NON-EXCLUSIVE AGREEMENT

This is not an exclusive agreement and does not give Seller a right of first offer with respect to the future provision of goods or services to LMI. LMI is free to engage others to perform Services or provide Goods which are the same as or similar to those provided by Seller. Seller is free to, and is encouraged to, advertise, offer and provide Seller’s services and/or goods to others; provided that Seller does not breach this Agreement.

15. NOTICES

Except for purchase orders, which may be sent by local mail, facsimile transmission, or electronic mail, all notices and other communications hereunder will be in writing, and will be addressed to Seller or to an authorized LMI representative, and will be considered given: (i) when delivered personally; (ii) when sent by commercial overnight courier with written verification receipt; (iii) three (3) days after having been sent, postage prepaid, by first class or registered mail or (iv) electronically mailed with written confirmation of receipt.

16. SURVIVAL OF OBLIGATIONS

Any obligations and duties which by their nature extend beyond the expiration or termination of this Agreement will survive the expiration or termination of this Agreement.

17. GOVERNING LAW

This Agreement and performance hereunder will be governed and interpreted by the laws of British Columbia and laws of Canada applicable therein. The applicability of the UN Convention on Contracts for the International Sale of Goods and the International Sale of Goods Act (British Columbia) are hereby expressly waived by the parties and will not apply to the terms and conditions of this Agreement.

18. ENTIRE AGREEMENT; MODIFICATION

This Agreement is the complete, final and exclusive statement of the terms of the agreement between the parties regarding the subject matter of this Agreement, and except where specified herein, supersedes any and all other prior and contemporaneous negotiations and agreements, whether oral or written, between them relating to the subject matter hereof. If there is any conflict between the purchase order and any other portion of the Agreement then the order of precedence shall be: 1) the purchase order, 2) technical documentation, 3) these General Terms and Conditions 4) Any other referenced document. Any and all changes to the Agreement must be authorized in writing by an authorized representative of LMI.

19. COMPLIANCE WITH LAWS

Seller will comply fully with all applicable Federal, Provincial and Municipal laws in the performance of this Agreement including, but not limited to, all applicable human rights, employment, tax, export control and environmental laws. If Goods include hazardous materials, Seller represents and warrants that Seller understands the nature of any hazards associated with the manufacture, handling and transportation of such hazardous materials. Seller acknowledges the importance to LMI and its parent company for Seller to conduct its business in a fair and ethical manner. Seller shall comply with the requirements set out in the TKH Code of Supply set out here: https://www.tkhgroup.com/en/csr/integrity/

20. TKH CODE OF SUPPLY

Where requested, Supplier will complete and return a copy of the TKH Code of Supply and Code of Supply Self Assessment located here: https://www.tkhgroup.com/en/csr/integrity/