Please notify CHILD CHECK-MATE SYSTEM, INC.  (“Seller”) immediately in the event of any errors in the attached acknowledgement. If Seller does not receive written notice of any such error within two (2) days of the date of the attached acknowledgment, then the acknowledgment, including these terms and conditions (collectively, this “Agreement”), shall be deemed correct and complete and accepted by the buyer of the products and services set forth on the attached acknowledgment (“Buyer”) and shall reflect the entire agreement between Buyer and Seller with respect to the subject matter herein.

  1. This Agreement supersedes Buyer’s purchase order, and any conflicting or additional terms or conditions contained in Buyer’s purchase order are hereby rejected. Seller’s acceptance of Buyer’s order for the products and services covered by the attached acknowledgement (the “Products”) is conditioned upon Buyer’s agreement that this Agreement constitutes the sole terms and conditions with respect to the sale and purchase of the Products. All agreements predating this Agreement and relating to the sale and purchase of the Products, including those covering credit terms, freight allowances, and waivers of any other standard charges, are hereby declared void. No courses of dealing, usage of trade or course of performance is relevant to explain or supplement any terms of this Agreement. This Agreement (including, without limitation, the specifications for the Products) shall not be amended, modified, canceled or rescinded, except in a writing signed by the party against whom the amendment modification, cancelation, or recession is sought. This Agreement shall be interpreted and enforced in accordance with the laws of the Province of Ontario applicable to contracts entered into by residents of Ontario and wholly performed in Ontario, excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods. Buyer and Seller consent to the exclusive jurisdiction of the courts with jurisdiction over Ottawa, Ontario in any and all actions and proceedings arising hereunder and waive the right to object to the venue or forum as improper or inconvenient. Notwithstanding the foregoing, either party may seek equitable relief in any court of competent jurisdiction. Buyer and Seller further consent to service of process by certified mail, return receipt requested to their respective addresses.
  2. Buyer shall pay Buyer’s invoices within thirty (30) days of the date of invoice. Buyer’s payments shall be in United States Dollars and in immediately available funds. Buyer agrees to pay all costs and expenses, including reasonable attorneys’ fees, incurred by Seller in the collection of any sum payable by Buyer to Seller. Overdue payments accrue interest at the lesser of 1 1/2% per month or the maximum interest rate permitted by applicable law from the due date until the date of payment in full.
  3. If, in Seller’s opinion, Buyer’s credit becomes impaired, Seller may suspend performance and/or require different payment terms, until such time as seller receives assurances acceptable to Seller of Buyer’s ability to pay Seller’s invoices in accordance with this Agreement. Further, Seller has no obligation to continue production or to make any shipment if Buyer is overdue on any payments to Seller, whether under this Agreement or otherwise. If Seller suspends performance and later proceeds with such order, Seller is entitled to such extension of time for performance as is necessitated by the suspension.
  4. Applicable federal, provincial, state and local taxes in effect from time to time, in connection with the sale and purchase of the Products (“Taxes”) are not included in the price and are the sole responsibility of Buyer. If Seller is required by applicable law to collect Taxes, Seller will endeavor to add such Taxes to Seller’s invoices for the Products unless, with respect to Taxes due to a particular taxing authority, Buyer provides Seller with a valid tax exemption certificate indicating that the sale of the Products is not subject to such taxation or collection by Seller. Failure of Seller to add any Taxes to an invoice shall not relieve Buyer of its obligation to pay Taxes.
  5. The delivery dates set forth in the attached acknowledgement constitute estimates only and are not firm or binding commitments. Seller is entitled to make partial shipments. Failure to deliver on any estimated delivery dates shall not constitute a breach or violation of this Agreement, shall not entitle the Buyer to any right, reimbursement, indemnification, payment or other accommodation from the Seller and shall not be cause for cancellation by Buyer or claims for damages, charges or liability of any kind whatsoever (including, without limitation, consequential damages) against Seller. Buyer may cancel or change the order only if production, preparation or configuration of the Products has not started. As soon as production of the Products begins, Buyer is responsible for accepting delivery and payment according to the terms of this Agreement.
  6. The purchase price for the Products are as stated on the face of the attached acknowledgement; provided, however, that if Seller announces a general price increase, the purchase price may be revised to include such price increase. Seller may at its sole discretion add a surcharge to the price of goods predicated upon increases in the cost of raw materials or energy. Such surcharges may be adjusted periodically to reflect a change in such costs.
  7. Certain Products are covered by the Child Check-Mate System, Inc. Limited Warranty which is attached to Exhibit A to this Agreement. If the Product is not covered by the Child Check-Mate System, Inc. Limited Warranty, Seller provides such Product to Buyer “AS-IS” AND WITHOUT WARRANTY OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE BUT EXCLUDING TITLE.
  8. Seller does not provide any form of indemnification to Buyer or its customers or any other party. In no event shall Seller be responsible to indemnify, defend or hold Buyer harmless from any claims, losses, demands, liabilities, expenses, attorneys’ fees, suits or judgments arising with respect to the sale, resale, maintenance, operation, failure or use of any of the Products. As a material inducement for and condition to the Seller’s agreement to sell the Products to the Buyer, Buyer hereby agrees to indemnify, defend and hold Seller harmless from any and all claims, losses, demands, liabilities, expenses, attorneys’ fees, suits and judgments , including, without limitation, all fees (including attorneys’ fees), expenses and costs of collection, arising with respect to (a) any breach or violation of this Agreement, and/or (b) the sales, maintenance, failure, servicing, or use of any of the Products covered by this Agreement and/or any other such other products sold by Seller to Buyer, including, without limitation, (i) any and all claims related to or resulting from any failure by Buyer or any other party (including those made by a third party directly against the Seller) to fully comply with the then-current maintenance manual(s) for the Products, and (ii) any and all claims made by any third party (including those made by a third party directly against the Seller) related to the sale, resale, maintenance, operation, failure or use of any of the Products as well as any claim.
  9. Seller shall deliver the Products FCA (Incoterms 2010) Seller’s place of shipment with all shipping and insurance charges being borne by Buyer and, where prepaid by Seller, being included in the invoice for the Products shipped. Title to the Products and all risk of loss or damage with respect to the Products shall pass to and be borne by Buyer upon delivery of the Products by Seller to the carrier.
  10. Any assignment of this Agreement, or any rights hereunder, by Buyer without prior written consent of Seller shall be void. This Agreement is for the exclusive benefit of Buyer and Seller and not for the benefit of, nor does it grant any rights to, any other person, corporation, firm, organization or entity. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
  11. Buyer acknowledges that the Products are specifically manufactured for the Buyer and, therefore, this Agreement is not cancelable by Buyer.
  12. Buyer and Seller acknowledge that the following provisions have been negotiated by them, reflect a fair allocation of risk and such allocation is reflected in the amounts payable under this Agreement:
    • IN NO EVENT SHALL SELLER’S LIABILITY, IN THE AGGREGATE, FOR DAMAGES ARISING OUT OF THE USE, SERVICING, MAINTENANCE, FAILURE, RESALE OR OPERATION OF THE PRODUCTS OR ARISING UNDER THIS AGREEMENT, WHETHER IN TORT, CONTRACT OR OTHERWISE, TO BUYER OR ANY OTHER PERSON OR ENTITY EXCEED THE PRICE ACTUALLY PAID BY BUYER FOR THE PRODUCTS.
    • IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR SIMILAR DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF GOOD WILL, WORK STOPPAGE, OR ANY AND ALL OTHER COMMERCIAL OR PERSONAL DAMAGES OR LOSSES, WHETHER DIRECTLY OR INDIRECTLY CAUSED, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  13. If the performance by either party of any obligation under this Agreement, other than the payment of money, is prevented or impaired by Force Majeure (as defined below) for any cause beyond the reasonable control of the defaulting party, such party shall be excused from performance so long as such situation continues to prevent or impair performance; provided that the party claiming such excuse shall have promptly notified the other party of the existence, nature, duration and other details of such cause and shall at all times use its reasonable efforts consistent with its normal business practices to resume a complete performance. If either party anticipates that a Force Majeure may occur, that party shall notify the other promptly and explain the nature, details and expected duration thereof. The affected party will advise the other from time to time as to the progress in remedying the situation and as to the time when the affected party expects to resume its obligations and shall notify the other as to the expiration of any Force Majeure as soon as the affected party knows the date thereof. “Force Majeure” shall mean an event beyond the reasonable control of a party including, but not limited to, fire, flood, sabotage, shipwreck, embargo, strike, explosion, riot, act of governmental authority (including, without limitation, acts relating to raw material or product allocation), acts of God and acts of war.
  14. If any term(s) of this contract is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such term(s) shall be deemed reformed or deleted, as the case may be, but only to the extent necessary to comply with such statute, regulation, ordinance, order or rule, and the remaining provisions of this contract shall remain in full force and effect.
  15. This Agreement may be executed in any number of separate counterparts, each of which shall be deemed to be an original, but which together shall constitute one and the same instrument.