Terms & Conditions

Unless otherwise defined, when used in the Contract the terms listed below have the following
“Affiliate” means, with respect to any Person, (i) any other Person who directly or indirectly
controls, is controlled by, or is under direct or indirect common control with, such Person; a
Person shall be deemed to “control” another Person if such Person owns such Person, directly, or
indirectly, with more than 50 % of the share capital and/or controls, directly or indirectly, more
than 50 % of the votes in such Person; and the term “controlled” shall have a similar meaning;
and (ii) any and all joint ventures as agreed from time to time between the Parties;
“Business Day” means any day other than a Saturday or a Sunday or a day which is a statutory
holiday in British Columbia, Canada, or Buyer’s head office jurisdiction;
“Buyer” means the HPDI Technology entity identified as the Buyer in the Purchase Order;
“Contract” means the entire agreement between the Parties with respect to the supply of the
Products and/or Services as constituted by the documents referenced in Section 2(b) of these
General Terms and Conditions;
“Delivery” means the completion of: (i) the Services; or (ii) arrival of the Products at the
delivery point specified in the Purchase Order, and the acceptance by Buyer in full (without
identifying any defects, deficiencies or rejections) of the applicable Delivery; “Deliver” or
“Delivered” shall have the same meaning;
“FCA” means “Free Carrier” as defined under Incoterms 2020 published by the International
Chamber of Commerce;
“Governmental Authority” means any national, federal, provincial, or municipal government
or other political subdivisions thereof, or any government, administration or regulatory authority,
agency, board, body, commission, court or tribunal thereof, having, or purporting to have,
jurisdiction in relation to the Contract or any Products or Services;
“Intellectual Property Rights” means any right or protection existing from time to time in a
specific jurisdiction, whether registered or not, under any patent law or other invention or
discovery law, copyright law, performance or moral rights law, trade-secret law, confidential
information law (including breach of confidence), trade-mark law, trade-name law, passing off,
unfair competition law or other similar laws and includes legislation by competent Governmental
Authorities and judicial decisions under common law or equity, and for greater certainty includes
the right to file any applications, and the right to claim for the same the priority rights derived
from any applications filed under any treaty, convention, or any domestic laws of a country in
which a prior application is filed;
“Order Date” means the date of the Purchase Order;
“Parties” means Buyer and Seller;
“Person” is to be broadly interpreted and includes an individual, a corporation, a partnership, a
trust, an unincorporated organization and a Governmental Authority;
“Purchase Order” means a written Purchase Order delivered by Buyer to Seller for the purpose
of purchasing Products and/or Services;
“Products” means the product(s), if any, to be purchased by Buyer as described in the Contract;
“Seller” means the Person identified as the Seller in the Purchase Order;
“Services” means the service(s), if any, to be purchased by Buyer as described in the Contract;
“Taxes” means all corporate, capital, value added, excise, products, sales, use, services,
personal, employment and income taxes, government pension, social security, employment
insurance contributions, duties (customs or otherwise) and other taxes, withholdings, penalties,
interest and additions thereto; and
“Value-Added Taxes” means any value added, products, services or sales taxes or other Taxes
which are assessed to Buyer and required by law to be collected by Seller on a supply of
Products or Services, and which in the normal course of Seller’s business are not included and
are not required by law to be included in the price for the Products or Services and, for greater
certainty, includes any Taxes collected by a Governmental Authority.
(a) The Contract constitutes the entire agreement between the Parties with respect to the subject
matter of the Contract and supersedes any previous agreement, understanding or communications
between the Parties related thereto. No representation, inducement, promise or agreement not
specifically set out in the Contract shall be of any force or effect.
(b) The Contract consists of the following documents:
(i) the Purchase Order;
(ii) these General Terms and Conditions; and
(iii) subject to Section 2(e), any other document which is attached to, or incorporated by
reference in, the Purchase Order.
(c) If there is any conflict or inconsistency between the documents constituting the Contract, then
unless otherwise expressly provided the documents will rank in the order of precedence in
accordance with the order in which they are listed in Section 2(b).
(d) The Contract shall be interpreted as a whole. The documents comprising the Contract are
complementary and what is called for in any one shall be binding as if called for by all of them.
(e) The Contract shall not include any terms or conditions that are referred to, submitted by or
otherwise used by Seller (including as part of the submission of any proposal, quotation, invoice
or bill of lading) and such terms and conditions are expressly rejected by Buyer. Notwithstanding
the foregoing, in the event that Buyer issues a Purchase Order to Seller in response to a proposal
or quotation provided by Seller, any terms and conditions contained in Seller’s documentation
that describe the specifications of the Products or Services shall form a part of the Contract. In
the event of any conflict between such descriptions of the Products or Services in Seller’s
proposal or quotation and any other documents forming the Contract, the other documents shall
(f) Buyer shall not be liable for any claims or liabilities suffered or incurred by Seller as a result
of Seller’s reliance in any way upon any information given to it by Buyer, unless contained in the
(g) The Contract does not create an exclusive relationship between the Parties in respect of the
Products or Services or any aspect of thereof.
A Purchase Order is not binding until accepted by Seller. The acceptance date of a Purchase
Order will be the earlier of: (i) the date Seller confirms acceptance in writing; (ii) the date Seller
Delivers the ordered Products, if applicable; (iii) five days after the Order Date unless Seller first
rejects the Purchase Order in writing. Acceptance of the Purchase Order confirms Seller’s
agreement to the terms and conditions of the Contract.
Buyer may provide Seller with estimates, forecasts or projections of its future anticipated volume
or quantity requirements for Products. Seller acknowledges that any such forecasts are provided
for informational purposes only and, like any other forward looking projections, are based on a
number of economic and business factors, variables and assumptions, some or all of which may
change over time. Buyer makes no representation, warranty, guaranty or commitment of any
kind or nature, express or implied, regarding any such forecasts provided to Seller, including
with respect to the accuracy or completeness of such forecasts.
(a) Seller shall furnish all skills, labour, supervision, equipment, materials, supplies or facilities
required to supply the Products and Services in accordance with the Contract, as well obtain and
maintain all permits, licenses and/or regulatory requirements which may be required to authorize
it to deliver the Products and Services or otherwise satisfy its obligations pursuant to the
(b) In performing its obligations under the Contract Seller shall comply with Buyer’s Code of
Conduct, a copy of which can be accessed through our web site under the section of Corporate
Governance, and to the extent applicable, with all access, safety and other policies in effect at the
site or sites where Services are to be provided.
(c) Unless otherwise agreed in writing by Buyer, Seller agrees that without further charge it shall
assist Buyer in the installation of any goods purchased under this Contract. Buyer and Seller
shall agree in writing on the schedule for such installation and the role of each party in the
installation process.
Seller agrees that:
1. if the price is omitted from this Purchase Order or any attachments or schedules thereof,
Seller’s price will not be higher than Seller’s lowest prevailing price for corresponding
items as of the Order Date hereof, and
2. if in the intervening time between the Order Date and the time of delivery, the prevailing
price for any item covered by this Purchase Order is lower than the price as of the Order
Date or the price set out in this Purchase Order, the sale price shall be adjusted to the
lower price.
No extra charges of any kind, including charges for packing or cartage will be allowed unless
specifically agreed to by Buyer in advance.
Buyer will pay only for maximum quantities ordered. Excess quantities of items resulting from
over-shipments will be held at Seller’s risk and expense for a reasonable time awaiting shipping
instructions. Return of excess quantities will be at Seller’s expense and risk. Any provision
herein this Purchase Order (if any) for delivery of items by installment shall not be construed as
rendering the obligations of the Seller severable.
Any provision herein for delivery of items by installment shall not be construed as rendering the
obligations of Seller severable.
Unless otherwise specified, when the price of the items set out in this Purchase Order is based on
the weight of the ordered items, such price is to cover net weight of the items ordered only, and
no charges will be allowed for boxing, crating, carting, storage or other packing requirements.
Unless otherwise specified, all items shall be packed, packaged, marked and otherwise prepared
for shipment in a manner which is:
1. in accordance with good commercial practice;
2. in accordance with any applicable laws or regulations;
3. acceptable to common carriers for shipment at the lowest rate for the particular items; and
4. adequate to insure safe arrival of the items at the named destination.
Seller shall mark all containers with necessary lifting, handling and shipping information,
purchase order numbers, date of shipment and the names of the consignee and consignor.
An itemized packaging sheet must accompany each shipment. No partial or complete delivery
shall be made hereunder prior to the date or dates specified in this Purchase Order unless Buyer
has given prior written consent.
Unless otherwise specifically provided in the Contract, all shipments of Products shall be FCA at
Seller’s designated facility, and transfer of title to, and risk of loss in respect of, Products shall be
passed to Buyer upon Delivery. If either Party causes loss or damage to the Product during
delivery or receipt, the Party causing the loss or damage shall pay for such loss or damage to the
Product regardless of whether or not title to or risk of loss in respect thereof resides with such
(a) For the purposes of any export out of or import into the jurisdiction of the Buyer prior to
Delivery, Seller shall be owner of the Products, and the exporter and importer of record, as
applicable. As such, Seller assumes full responsibility for the contents of any and all
declarations, filings or other representations made to any Governmental Authority of any country
in relation to the shipment of Products.
(b) To the extent that Buyer is required to make any declaration, filing or other representation to
any Governmental Authority of any country for the purpose of enabling the shipment of any
Products pursuant to the Contract, Buyer shall do so only at Seller’s request and pursuant to the
instructions provided by Seller, and any such declaration, filing or representation made by Buyer
shall be deemed to have been done at the request and instruction of Seller. Seller shall be
responsible for providing any and all such information to Buyer as may be required to ensure that
Products can be shipped to the applicable destinations.
(c) Unless explicitly indicated in the Contract, Seller shall be responsible to account for and pay
any tariffs and other duties and fees relating to the exportation of the Products out of any
country, province or state.
(d) Seller shall advise Buyer of the country of origin and manufacture of all components
included or to be included in the Products, including all information related to conflicts minerals
and raw materials used to manufacture the Products, and any other information required by any
Governmental Authority and, in respect of such Products, shall advise Buyer which Products
may be exported or imported on a duty-free basis as a result of valid certificates of origin or
permissible proofs of origin, and shall make any customs filing and/or to otherwise cooperate
with Buyer in the supply of documentation required by Buyer to qualify for reduced customs and
duty rates.
(e) Seller shall diligently pursue any duty drawback, refund of duties, duty deferral or
remissions, to which Buyer or Seller may be entitled, and, to the extent that any rebates or
benefits received in connection therewith relate to shipping or customs and duty costs paid by
Buyer hereunder, whether directly or indirectly, Seller shall provide Buyer with a credit for any
recovered amounts.
(a) Each invoice issued pursuant to the Contract: (i) shall set forth the contract number or
Purchase Order number under which it is issued; and (ii) shall be rendered to the proper
Accounts Payable Department of Buyer as set forth in the Contract. Unless otherwise stated in
the Contract, invoices shall be due ninety (90) days end of the month following receipt thereof
by Buyer. Unless otherwise provided in the Contract, payment made by Buyer shall be made in
Canadian currency via electronic funds transfer to an account provided by Seller. If the payment
due date falls on a day that is not a Business Day, the invoice will be payable on the next
Business Day.
(b) Seller shall separately state or re-phrase invoice items in order to reduce transaction taxes if
requested by Buyer and as permitted by applicable laws. Seller must not invoice Buyer for
transaction taxes, and such amounts should not be included in the invoiced amount, to the extent
Buyer advises Seller in writing (by exemption certificate or otherwise) that it will self-assess and
remit those taxes.
(c) Buyer shall have the right to withhold disputed amounts, without incurring interest or penalty
thereon. Buyer shall have the right to set off from any payment due to Seller, any other amount
owed by Seller to Buyer, whether under the Contract or otherwise.
(d) No certificate given, payment made or inspection, approval or use of the Products or Services
or any part thereof by Buyer will:
(i) prejudice the right of either Party to dispute whether the paid amount is the amount
properly due and payable;
(ii) be evidence of the value of the Products or Services;
(iii) be an admission of liability on the part of Buyer;
(iv) be construed as evidence of satisfactory performance of the Contract, in whole or in
part; or
(v) be construed as acceptance of defective Products or Services or as relieving Seller from
any of its obligations or liabilities under the Contract.
(a) Subject to Section 13(b), Seller shall, as applicable, invoice, collect and remit all ValueAdded Taxes required by applicable laws in respect of Products or Services supplied by Seller.
(b) The Parties acknowledge that the price for the Products and Services under the Contract is
exclusive of Value-Added Taxes, but inclusive of all other Taxes which may be imposed in
respect of the provision of the Products and Services. Value-Added Taxes shall be added to an
invoice only if Seller is required to collect such taxes by law, and in such case, Seller shall
collect and remit Value-Added Taxes as required by law. Seller shall segregate on the applicable
invoice the amounts for Products and Services and related charges for which Buyer is not liable
to pay Value-Added Taxes from any amounts for Products and Services and related charges for
which Buyer is liable to pay Value-Added Taxes. Any applicable Value-Added Taxes which
may be imposed upon Buyer in respect of the Products and Services shall be: (i) calculated by
Seller in the manner stipulated herein and as required by law or administrative policy; and (ii)
reflected on the applicable invoice as a separate line item, together with such information as
required under applicable law or administrative policy so that Buyer can obtain any applicable
tax credits or refunds.
(c) Buyer may withhold amounts from payments due to Seller at the withholding rate specified
by law. Seller shall facilitate the withholding and payment of any withholding Tax as requested
by Buyer.
(d) Without restricting any obligation of Seller under the Contract, or otherwise releasing Seller
therefrom, Seller shall promptly give written notice to Buyer of any change in the residence,
corporate structure, ownership or identity of Seller under the Contract that would result in
Buyer’s obligation to withhold and remit Taxes arising or changing under any applicable laws,
together with supporting documentation reasonably requested by Buyer.
Each and every Product purchased under the Contract is subject to Buyer’s inspection and
approval at any place Buyer may reasonably designate. Buyer expressly reserves the right,
without liability hereunder or otherwise, to reject and refuse acceptance of Products which do not
conform in all respects to: (a) any instructions contained in the Contract; (b) Buyer’s
specifications, drawings, blueprints and data; and (c) the Warranty. Buyer may, in Buyer’s sole
discretion, hold such rejected Products for Seller’s inspection at Seller’s risk upon notification to
Seller or return such Products to Seller at Seller’s expense and risk and recover from Seller the
sale price paid therefore. No rejected Products shall be replaced without a new Purchase Order.
Payment for any Products shall not be deemed an acceptance thereof.
Buyer reserves the right at any time to change any one or more of the following:
(a) specifications, drawings, blueprints and data incorporated in the Contract where the
Products to be purchased are to be specifically manufactured for Buyer;
(b) method of packaging, packing or shipment; and
(c) place and/or time of delivery.
If any such change causes an increase or decrease in the cost of, or the time required for the
performance of, the Contract, an equitable adjustment shall be made in the price or delivery
schedule, or both. Any claim for adjustment by Seller shall be deemed waived unless asserted in
writing within thirty (30) days from the receipt by Seller of Buyer notification of the change.
Nothing contained in this clause shall relieve Seller from proceeding without delay in the
performance of the Contract as changed.
(a) Seller warrants that the Products to be furnished hereunder will: (i) be in full compliance with
Buyer’s specifications, blueprints, drawings and data or Seller’s samples, if any; (ii) be designed,
engineered, manufactured, fabricated, assembled, delivered and sold, as applicable, in
accordance with the highest industry standards; (iii) meet the requirements of the HPDI
Technology Supplier Quality Manual; (iv) be of merchantable quality; (v) be free from any
defect in material or workmanship; (vi) be fit for the use intended by Buyer; and (vii) be free
from any actual (or claim of) infringement of Intellectual Property Rights of any Third Party.
Seller further warrants title to the Products, free and clear of all third party claims of any nature,
including, without limitation, liens, encumbrances and security interests.
(b) Seller warrants that any Services shall be performed: (i) in compliance with all applicable
laws, ordinances, regulations (including, without limitation, any applicable environmental, health
and safety legislation and all applicable laws in relation to the corruption or bribery of public
officials), permits and any by-laws, code of ethics, rules or regulations established from time to
time by Seller, any regulatory body governing Seller or regulating the performance of services
similar to the Services or any relevant professional body; and (ii) in a competent and professional
manner exercising the level of skill, care and diligence of a reputable and experienced
professional specializing in the provision of similar services that is acting in accordance with the
highest industry standards.
(c) Seller warrants and represents that it has complied with and will continue, during the
performance of its obligations under the Contract, to comply with, all applicable laws,
ordinances, regulations, permits and any by-laws, code of ethics, rules or regulations established
from time to time by Seller, any regulatory body governing Seller or regulating the delivery of
products similar to the Products or any relevant professional body, including those laws and
regulations applicable at the point of manufacture concerning the packaging, storage, shipment
and exportation of all or any part thereof, the protection of the environment, workplace safety,
conditions and standards. Seller hereby agrees to grant access to Buyer or its designated agent to
inspect Seller’s manufacturing facilities during normal business hours and upon reasonable
notice, to verify compliance with local laws and regulations. The right to such inspections will
not relieve Seller of sole responsibility for ensuring compliance with all local laws and
regulations. Seller further warrants and represents that any chemical substance delivered
hereunder shall not be on the list of prohibited substances detailed in the applicable
environmental laws or regulations that are in force in the jurisdiction of manufacture or delivery.
When the laws or regulations of more than one jurisdiction apply, Seller shall act in conformity
with the laws or regulations that are more stringent with respect to the matter concerned.
(d) Seller shall assign to Buyer its rights under any third party warranty in respect of any
Products or Services Delivered in accordance with the Contract, the assignment of which does
not relieve Seller of any obligation to provide a warranty in accordance with the Contract. If
Seller is unable to obtain for Buyer the full benefit of a third party warranty, Buyer will have the
right to enforce the warranty for its own benefit (in the name of Seller if necessary) and in case
of a warranty that has not been assigned to Buyer, Buyer will have the right to subrogate to all
Seller’s rights with respect thereto. Seller will not take any action that will void or impair any
third party warranty unless authorized by Buyer.
(e) Seller agrees that the warranties contained in the Contract shall: (i) be in addition to any
warranties either express or implied in law or expressly made by Seller other than hereunder
(collectively, the “Warranty”); and (ii) survive Delivery by Seller and inspection, acceptance and
payment by Buyer.
(f) Unless a different time period is specified in the Contract, the Warranty shall be in effect for a
time period that is forty-two (42) months after Delivery of the Product or Service.
(g) If any Products or Services Delivered hereunder are in breach of the Warranty, Buyer may, at
its option: (i) require Seller to correct at no cost to Buyer any defective or non-conforming
Products or Services by repair, replacement or re-performance; or (ii) return defective or nonconforming Products at Seller’s expense and risk to Seller and recover from Seller the sale price
thereof; or (iii) correct the defective or non-conforming Products or Services itself and charge
Seller with the cost of such correction. The foregoing remedies are in addition to all other
remedies at law or in equity or under the Contract, and shall not be deemed to be exclusive. The
Warranty shall be for the benefit of Buyer and Buyer’s customers and subsequent owners of the
Products during the period during which the Warranty is in effect.
(h) Waiver by Buyer of any drawing or specification requirement for one or more of the Products
shall not relieve Seller of the Warranty and shall not constitute a waiver of such requirements for
the remaining Products to be Delivered hereunder unless so stated by Buyer in writing. The
provisions of this clause shall not limit or affect the rights of Buyer under Section 15 entitled
Seller shall hold harmless, indemnify and defend Buyer, its Affiliates, and its and its Affiliates’
directors, officers, employees, secondees, representatives, agents and contractors and their
respective representatives, agents and employees (together, the “Buyer Indemnified Parties”),
from and against all actions, injury, claims, liabilities, loss, damages, demands, penalties, fines,
expenses (including actual legal expenses), costs, obligations and causes of action of every kind
and nature whatsoever (the “Losses”), that may be asserted or brought against, or suffered or
incurred by, the Buyer Indemnified Parties for or in respect of, or arising in any way whatsoever,
out of:
(a) the fault, misconduct or negligence of, or the breach of the Contract by, Seller, its
directors, officers, employees, secondees, representatives, agents, or subcontractors or their
respective employees, agents, representatives or subcontractors;
(b) any defect in design, manufacture material and workmanship (including for greater
certainty, any resulting death, personal injury or damage to personal or real property), in any
Products or Services supplied to Buyer by Seller under the Contract;
(c) any damage to or destruction of a Product during transportation where Seller bears the
risk of loss and any action by any Governmental Authority with respect to the shipment of
Product over any international boundary in connection with delivery of such Product;
(d) the claims and demands of all Persons arising out of, or in connection with, the delivery
of any Products or Services, including taking all such actions as may be required to
discharge any lien or encumbrance on any Product; and
(e) any action or claim by any third party that the use, possession, sale or distribution of the
Products or Deliverables hereunder, or any part of thereof, infringes any Intellectual
Property Rights of the third party (an “IPR Claim”);
except, in each case, to the extent such Losses are solely attributable to the breach of the
Contract or misconduct by a Buyer Indemnified Party.
In the event of any IPR Claim, without limiting, and in addition to, its indemnification
obligations under this Section 18, Seller shall, at its own expense, use commercially reasonable
efforts, in Seller’s discretion, to, as soon as practically possible:
(a) procure the Buyer Indemnified Parties with the right to continue to use the Products or
the infringing part or parts thereof, as the case may be; or
(b) modify the Products, or the infringing part or parts thereof, as the case may be, so that it
is non-infringing without materially affecting its performance or functionality; or
(c) replace the Products or the infringing part or parts thereof, as applicable, with a
substitute that provides materially and substantially similar performance and functionality.
In no event shall Buyer be liable to Seller for any indirect, consequential, incidental, punitive or
exemplary losses, damages or expenses or for loss of profit, revenue, use or production,
downtime or business interruption, anticipated profits, lost savings, loss of opportunity, or any
other economic loss of any kind, whether such losses arise under contract, tort (including
negligence), strict liability or otherwise.
Seller, at its sole cost, will maintain insurance coverage throughout the term of the Contract as
described in the Purchase Order, or if not stated in the Purchase Order, in amounts reasonably
sufficient to support the Seller’s obligations under the Contract, however no less than
$10,000,000 USD, and which will include product liability coverage, with insurance companies
reasonably acceptable to Buyer. The limits set forth in the Contract are minimum limits and will
not be construed to limit Seller’s liability. All cost and deductible amounts will be for the sole
account of Seller. Where legally possible, all policies required by Buyer hereunder (or otherwise)
will name Buyer as an additional insured (per ISO Endorsement #CG 2010 or its equivalent) and
waive subrogation rights in favor of Buyer, except policies providing statutory workers’
compensation and professional liability coverage. Such policies will be designated as primary
coverage as to any similar coverage carried by Buyer. Seller will not begin work in respect of
any Products or Services until all required insurance has been obtained. All policies required
under this Section 20 will contain provisions that provide at least thirty (30) calendar days’ prior
written notice of any cancellation, non-renewal, or reduction in coverage to Buyer. Seller must
provide written proof of such insurance coverage upon the written request of Buyer.
Without the prior written consent of Buyer, Seller shall neither: (a) make any news release,
public announcement, denial or confirmation of the Contract or its subject matter; nor (b) in any
manner advertise or publish the fact that Buyer has placed any order for Products and/or
Unless otherwise agreed to in writing, all tooling, equipment or material of every description
furnished to Seller by Buyer or its Affiliate or specifically paid for by Buyer or its Affiliate and
any replacement thereof, shall remain the property of Buyer or its Affiliate (“Buyer’s Property”).
Buyer’s Property, and whenever practical, each individual item thereof, shall be plainly marked
or otherwise adequately identified as property of Buyer and shall be safely stored separately and
apart from Seller’s property. Seller shall not substitute any property for Buyer’s Property and
shall not use Buyer’s Property, except in filling Buyer’s orders. Buyer’s Property while in Seller’s
custody or control shall be held at Seller’s expense, and will be insured by Seller in an amount
equal to the replacement cost with loss payable to Buyer. Buyer’s Property shall be prepared for
shipment and delivered in good condition, normal wear and tear excepted to Buyer, FCA at
Seller’s plant, immediately upon request by Buyer.
Seller shall keep Buyer’s property free of all liens arising through Seller for any reason
(including from any failure of Seller or any of its permitted subcontractors to pay its accounts
when due), and if any such lien is filed, Seller, on notice from Buyer, shall procure promptly a
release thereof. If Seller fails or refuses to procure such a release within 10 days after notice from
Buyer, then Buyer may pay such amounts or take such other actions (including posting security
or making payment into court) as may be necessary to procure such release and shall be entitled
to recover from Seller all costs of doing so, regardless of whether or not Seller disputes the lien.
Seller shall, whenever Buyer requests, furnish Buyer with proof satisfactory to Buyer that all
such liens have been satisfied and released.
Seller confirms that Buyer exclusively owns any and all data, work products, reports and other
documentation, deliverables, know-how, ideas, concepts, inventions, discoveries, developments,
productions, processes, improvements and any other intellectual property, together with all
Intellectual Property Rights in each of the foregoing, which may be perfected, acquired,
conceived, made, developed or otherwise created by Seller: (i) in the course of delivering the
Products or Services, regardless of the stage of completion; or (ii) otherwise in connection with
the Contract (collectively the “Deliverables”). In consideration of the payments made by Buyer
under the Contract, Seller hereby (i) irrevocably assigns, transfers and conveys to Buyer all right,
title and interest in and to the Deliverables as any such Deliverables come into existence; and (ii)
waives, and shall cause all those who developed, created or conceived any element of the
Deliverables to waive, all moral rights therein, and Seller shall, when so requested by Buyer,
execute all documents as may be required by Buyer to fully and effectively vest in Buyer such
right, title and interest in and to the Deliverables and to confirm the waiver of any moral rights
therein. Seller will forthwith deliver to Buyer all documents, other recordings and things,
including prints, drawings, dies, prototypes and specifications, relating to such Deliverables. In
the course of delivering the Products and/or Services, Seller shall ensure that Buyer will be able
to freely use the Deliverables. Without limiting the foregoing, Seller will not use or otherwise
incorporate any Intellectual Property Rights owned by third parties into the Deliverables. In the
event Seller uses or otherwise incorporates any Intellectual Property Rights that Seller may now
or hereafter own, possess, or in which it may hold licensing rights (“Background IPR”) into any
Deliverable, Seller hereby grants to Buyer a perpetual, irrevocable, fully paid-up, royalty-free,
transferable, sublicensable (through multiple levels of sublicensees), worldwide non-exclusive
right and license to use or otherwise practice all or any portion of such Background IPR. For
greater certainty, Seller acknowledges and agrees that the foregoing license is sufficiently
expansive for Buyer to reproduce, distribute, display and perform (whether publicly or
otherwise), prepare derivative works of and otherwise modify, make, have made, sell, offer to
sell, import and otherwise use and exploit the Deliverables, or any parts thereof, and have others
exercise such rights on behalf of Buyer. The obligations under this Section 24 shall survive the
expiration or earlier termination of the Contract and shall remain in effect indefinitely.
For the purposes of this Section, the term “Affiliates” shall include certain confidential third
party business partners of Buyers and/or its Affiliates.
In the course of delivering the Products and/or Services, and in the discussions leading up to the
entering into of the Contract, Seller has obtained and will continue to access, obtain, generate or
be made aware of information, in whatever form and whether or not marked as “confidential”,
that is of a proprietary and/or confidential nature with respect to Buyer and/or any of its
Affiliates, and this information includes (but is not restricted to) the existence of the Contract and
the relationship among the Parties, the identities of certain confidential third party business
partners, business plans, customer lists, financial data, marketing data, technical data,
engineering data, testing data, trade secrets and any other information in respect of Buyer or any
of its Affiliates which is disclosed to Seller or which Seller becomes aware of in the delivery of
the Products and/or Services or in connection with the Contract (“Confidential Information”).
Seller agrees to use such Confidential Information only for the purpose of delivering the
Products and/or Services and not to use it for any other purpose, unless otherwise agreed to in
advance and in writing by Buyer. Seller further agrees to maintain such Confidential Information
in strict confidence and not to directly or indirectly disclose it to any other Person except to those
of its directors, officer, employees, agents and representatives who have a need to know such
Confidential Information for purposes of the Contract and are bound by confidentiality
obligations similar to the provisions of this Section 25. These obligations shall not apply to
information that Seller can show to Buyer that at the time of its disclosure is in the public domain
through no fault of Seller; was known to Seller prior to the disclosure by Buyer or its Affiliates;
or is hereafter received by Seller in good faith from a third party having the lawful right to
disclose the same. Upon delivery of the Products and/or Services or the earlier termination of the
Contract, Seller shall deliver to Buyer all property and any documents and computer files
containing any Confidential Information or other Buyer information, including all copies thereof
unless otherwise agreed in writing by Buyer.
Seller acknowledges and agrees that Buyer and its Affiliates will suffer irreparable harm in the
event that any of the obligations contained in this Section are breached and that monetary
damages will be inadequate to compensate Buyer and its Affiliates for the breach. Accordingly,
Seller acknowledges and agrees that, in the event of a breach or threatened breach by Seller or
any of its directors, officers or employees of any of the provisions of this Section, Buyer, in
addition to and not in limitation of any other rights, remedies or damages available to it at law or
in equity, shall be entitled to an interim injunction, interlocutory injunction and permanent
injunction in order to prevent or to restrain any such breach by Seller.
The obligations under this Section 25 shall survive the expiration or earlier termination of the
Contract and shall remain in effect indefinitely.
Seller undertakes to comply in all material respect with any applicable law governing privacy
and data protection, including where applicable the General Data Protection Regulation (EU)
2016/679 and Italian Legislative Decree 196/2003.
Seller will create, maintain, update and provide to Buyer, in compliance with Buyer’s standards
and specifications, all technical information about the Products and their manufacture which is
reasonably necessary or requested by Buyer in connection with its use of the Products, including,
without limitation, the engineering validation and qualification of the Products for automotive
production and other applications and compliance with any legal or regulatory requirements.
Such technical information will not be subject to any use or disclosure restrictions imposed by
the Seller.
Seller agrees not to assert any claim against Buyer, Buyer’s customers or their respective
suppliers with respect to the technical information that Seller shall have disclosed, or may
hereafter disclose pursuant to this Section 26 in connection with the Products or services covered
by this Contract, (except in the event of infringement by Buyer of patents owned by the Seller).
Unless and to the extent as otherwise provided under the Contract, Buyer may terminate the
supply of the Products and/or Services in whole or in part for its convenience at any time by
notice to Seller in writing. Seller will thereupon immediately stop all work under the Contract, or
the terminated portion thereof, and notify its subcontractors to do likewise. Upon termination
under this Section 27, Seller shall be entitled to be paid for Products and Services Delivered in
accordance with the Contract up to and including the date of termination, plus all reasonable and
necessary documented costs directly resulting from such termination, which Seller shall use all
commercially reasonable efforts to minimize. The total of all claims under this Section 27 shall
not exceed the cancelled commitment value of the Contract or the cancellation costs listed in the
Contract, whichever is less.
(a) Time is of the essence under the Contract. Buyer may, by written notice, terminate the
Contract in whole or in part if Seller fails: (i) to make delivery of the Products or to perform the
Services within the time specified therein, or any extension thereof by written change order or
amendment; or (ii) to replace or correct defective Products or Services in accordance with the
provisions of those clauses hereof entitled ‘WARRANTIES” and “INSPECTION”‘, or (iii) to
perform any of the other provision of the Contract or so fails to make progress as to endanger
performance in accordance with its terms. Buyer is the sole judge under such circumstances.
(b) In the event of termination pursuant to paragraph (a), Buyer may procure from a third party,
upon such terms and in such manner as Buyer may deem appropriate, products or services
similar or substantially similar to those so terminated, and Seller shall be liable to Buyer for any
excess costs occasioned Buyer thereby.
(c) In the event of termination of the Contract in part, Seller shall continue the performance of
the Contract to the extent not terminated.
(d) If the Contract is terminated pursuant to paragraph (a), Buyer, in addition to any other rights
provided herein, may require Seller to transfer title and deliver to Buyer, in the manner and to the
extent directed by Buyer: (i) any completed Products or Services; and (ii) such partially
completed Products or Services as Seller has produced or acquired for the performance of the
terminated part; and Seller shall, upon direction of Buyer, protect and preserve such property in
the possession of Seller. Payment for completed Products or Services delivered to and accepted
by Buyer shall be in an amount agreed upon by Seller and Buyer (not to exceed the contract price
set out in the Contract). Seller’s obligations hereunder to carry out Buyer’s direction as to
delivery, protection and preservation shall not be contingent upon prior agreement as to such
(e) Failure of Buyer to enforce any right under this clause shall not be deemed a waiver of any
right hereunder. The rights and remedies of Buyer under this clause shall not be exclusive and
are in addition to any other rights and remedies provided by law or under the Contract.
(a) If a Party is prevented from performing any obligation under the Contract, in whole or in part,
by an event or cause which is beyond the control of that Party, which is not able to be overcome
by the exercise of reasonable care and proper precautions, and which could not have been
reasonably foreseen, including, without limitation, an act of God or the public enemy; riot; civil
commotion; armed aggression; terrorism; insurrection; war; flood; fire; explosion; serious
accident; earthquake or other catastrophe; or epidemic or quarantine restriction; and currency and
trade restrictions, embargo, sanctions (an “Event of Force Majeure”), such obligation shall, to the
extent that its performance is prevented by such Event of Force Majeure, be suspended as long as
such Event of Force Majeure continues to prevent such performance, and the non performance of
such obligation to such extent during such period of suspension shall not constitute a breach or
default hereunder. An Event of Force Majeure specifically does not include extreme or inclement
weather which is not unusual at the place where the Contract is being performed, lack of raw
materials or supplies, strikes, lockouts, slowdowns or other labour disruption of a Party, or the
financial condition of a Party.
(b) If either Party relies on the occurrence of an Event of Force Majeure as a basis for being
excused from performance of its obligations under the Contract, the Party relying on the event or
condition shall: (i) provide prompt notice to the other Party of the occurrence of the Event of
Force Majeure giving an estimation of the expected duration of such event and the probable
impact on the performance of its obligations under the Contract; (ii) exercise all reasonable
efforts to continue to perform its obligations under the Contract; (iii) use all reasonable efforts to
correct or cure the Event of Force Majeure; (iv) use all reasonable efforts to mitigate or limit
damages; and (v) provide prompt notice to the other Party of the cessation of the Event of Force
Seller shall keep at its usual place of business, and, if applicable, cause its subcontractors to keep
in their usual place of business, books, accounts, background invoices and other relevant
materials (“Records”) substantiating its performance of the Contract. Buyer may audit all such
Records, and upon reasonable notice, may, at any time and from time to time, undertake an audit
of all such Records and Seller’s third party invoices for the purpose of verifying the proper
performance by Seller of its obligations. Seller shall respond to all audit enquiries by Buyer not
later than twenty-one (21) Business Days from the date of any audit enquiry by Buyer. Seller
shall keep such Records, and Buyer’s audit rights shall exist, at all times during the duration of
the Contract and for twenty-four (24) months from the last day of the calendar year in which the
applicable Products or Services are delivered.
Upon request of the Buyer, the Seller will provide information and data regarding developments
or initiatives with respect to environmental, social (including health and safety, employees,
human rights, consumer and community issues) and corporate governance matters such as labour
force statistics, environmental initiatives and compliance, human rights, community relations and
anti-corruption to support the Corporate Social Responsibility commitments and reporting of the
(a) Waiver by a Party of any default by the other Party hereunder shall not be deemed a waiver
by such Party of any other default.
(b) Seller shall not change the Contract nor ship non-conforming Products without first obtaining
the written consent of Buyer.
(c) Seller shall not be entitled to subcontract or otherwise delegate any performance of any
benefit or obligation arising under the Contract without Buyer’s prior written consent, with
consent may be withheld in Buyer’s sole discretion. Even when consent is granted, Seller shall be
responsible for all acts or omissions of its employees, agents, consultants, suppliers or
subcontractors in relation to the performance of the Contract and any such acts or omissions shall
be deemed to be those of Seller.
(d) Each Party is and will remain at all times independent of each other Party. The Parties are not
and shall not be considered to be joint venturers, partners or agents of each other and none of
them shall have the power to bind or obligate any other, except as expressly set forth in the
Contract. Each Party covenants and agrees that it shall not in any way, incur any contractual or
other obligation in the name of the other Party, nor shall it have liability for any debts incurred
by the other Party. No representation will be made or acts taken by either Party which could
establish any apparent relationship of agency, joint venture, partnership or employment.
(e) The Contract shall be governed by, and construed in accordance with, the laws of British
Columbia, without reference to its conflict of laws principles. The Parties hereby attorn to the
exclusive jurisdiction of the courts of British Columbia in connection with all matters arising in
relation to the Contract. The United Nations Convention of Contracts for International Sales of
Goods shall not apply to the Contract. Notwithstanding the foregoing, if the Buyer has its
registered office outside of Canada on the date when notice of the dispute is provided by the
party raising the dispute, the Contract shall be governed by, and construed in accordance with,
the laws of the jurisdiction where the Buyer has its registered office on the date when notice of
the dispute is provided by the party raising the dispute, without reference to its conflict of laws
principles and any such dispute arising out of or in connection with the Contract, including any
question regarding its existence, validity or termination, shall be referred to and finally resolved
by arbitration under the ICC rules, which rules shall be deemed to be incorporated by reference
into this Contract. The number of arbitrators shall be three. The seat, or legal place, of arbitration
shall be the place where the Buyer has its registered office unless otherwise agreed by the
Parties. The language to be used in the arbitral proceedings shall be English.
(f) The invalidity of unenforceability of any provision of the Contract shall not affect the validity
or enforceability of any other provision of the Contract, all of which shall remain in full force
and effect.
(a) Seller shall not assign any rights or obligations under the Contract (including the right to
receive monies due hereunder) without the prior written consent of Buyer, with consent may be
withheld in Buyer’s sole discretion. Any purported assignment without consent shall be void.
(b) Buyer may, without the prior consent of Seller, assign its rights and obligations under the
Contract: (i) at any time if such assignment is considered necessary by Buyer in connection with
a sale of Buyer’s assets or a transfer of its obligations; and (ii) upon reasonable prior notice to
Seller, to any Affiliate of Buyer or to any other assignee, provided that such assignee agrees in
writing to be bound by the provisions of the Contract. Any such assignment by Buyer approved
hereunder shall be effective as a release and novation of Buyer with respect to the duties and
liabilities under the Contract so assigned and delegated.