Product(s) will conform, at the time and place of pickup or delivery, to the specifications set out on
Algarithm’s website located here (“Product Specifications”) when tested in
accordance with generally accepted industry testing methods (“Testing Methods”). Algarithm has
the right to change the Product Specifications with 180 (one hundred and eighty) days’ advance
written notice to Customer.
Ownership, risk of loss, and liability for the Product will transfer to Customer on delivery/pick-up.
Customer grants to Algarithm a security interest in all Product delivered under the Agreement until
the Product is paid for in full and grants Algarithm the right to make any registration required to
perfect that security interest.
Customer shall pay all invoices within 30 days of the date shown on the invoice. Customer is
ultimately responsible for all payments due under the invoice, whether the invoice is issued to
Customer or Customer’s agent. Payments not received by Algarithm when due shall accrue interest
at a rate of 1.5% per month.
Algarithm warrants to Customer: (i) that the Product(s), as of the time and place of delivery to or
pick-up by or for Customer, will (x) conform to the Product Specifications when tested in accordance
with the Testing Methods; and (y) comply with all applicable statutory and regulatory requirements in
the country where the Product is processed; and (ii) that Algarithm will comply with all applicable
laws, rules, regulations and/or guidelines applicable to its sale of the Product.
Algarithm has not made any recommendations to Customer regarding the appropriate use of the
Product, either alone or incorporated in any Customer product. Customer determines the
appropriate use of the Product or any subsequent sale of Customer product and assumes all risks
and liabilities for any loss, damage or injury to persons or property, resulting from the use or
subsequent sale of the Product, either alone or incorporated into a Customer product.
Except for the warranties set out in this Section 4, Algarithm disclaims all other express and implied
warranties with respect to the Product including, without limitation, the implied warranties of
merchantability, fitness for a particular purpose and non-infringement of third party intellectual
property rights.
Customer represents and warrants to Algarithm that Customer: (i) will not store, transport, market,
handle, dispose of, sell, or otherwise use the Product in a manner that is not in compliance with the
laws of the countries into which the Product will be imported and/or sold, including without limitation
US export restriction laws; and (ii) will comply with all applicable laws, rules, regulations, and/or
guidelines applicable to the use, storage, handling, transportation, marketing, sale or resale, transfer
and disposal of the Product.
Algarithm agrees to indemnify Customer from any and all claims, losses and damages (including
reasonable attorney’s fees) (collectively, “Damages”) asserted by third parties against Customer
only to the extent directly caused by Algarithm’s breach of any covenant, guarantee or warranty in
this Agreement. The above indemnification obligations do not apply, and Algarithm shall not be
liable for any Damages, if the claim against Customer arises from (a) the use or incorporation of the
Product with or in Customer’s own product or (b) Customer has not complied with Algarithm’s
instructions given under Section 6(b) to return or destroy nonconforming Product.
Customer agrees to indemnify Algarithm from any and all Damages asserted by third parties against
Algarithm arising out of (a) any breach of this Agreement by Customer, (b) loss of, damage to or
other contamination of Product after pick-up, (c) the storage, handling, transportation, marketing,
sale or resale, use or disposal of the Product by Customer or any other party or (d) any adverse
events or recall of Customer product.
Any claim by Customer that the Product does not conform to the Product Specifications must be
made promptly in writing by Customer upon Customer’s notice or knowledge of any such claim and
will be deemed to be waived unless received, in writing, by Algarithm within six (6) months after the
pick-up or delivery of the Product. Customer irrevocably waives and releases all claims that are not
made within the notice period.
Notwithstanding sections 6(c) and 6(d) below, Customer’s exclusive remedy and Algarithm’s
exclusive liability (i) for shipment of nonconforming Product(s) or (ii) for Algarithm’s breach of
warranty set out above in Section 4(a)(i) is expressly limited to (at Algarithm’s option): (x)
replacement of the nonconforming Product(s) at no additional charge to Customer; or (y) a refund of
the purchase price. All nonconforming Product(s) will be returned to Algarithm, at Algarithm’s
expense, or, at Algarithm’s direction, disposed of by Customer in a manner mutually acceptable to
Customer and Algarithm. Algarithm will pay all approved costs of such disposition.
Neither party’s liability to the other party, or to the other party’s directors, officers, employees,
agents or representatives, for any direct damages with respect to any single incident arising out of
or related to this Agreement will exceed the amount paid by Customer hereunder in the 12 months
preceding the incident, provided that in no event will either party’s aggregate liability arising out of or
related to this Agreement exceed the total amount paid by Customer hereunder. The above
limitations will apply whether an action arises out of breach of contract, warranty, tort, contribution,
an obligation to indemnify, subrogation or otherwise.
Neither party’s liability to the other party, or to the other party’s directors, officers, employees,
agents or representatives, for any indirect, consequential, incidental, special, punitive or exemplary
damages of the other party, the other party’s officers, employees, representatives or insurers, or of
any third party, of whatsoever nature (including, but not limited to, lost business, lost profits, damage
to goodwill or reputation and/or degradation in value of brands, trademarks or trade names, service
Algarithm agrees to indemnify Customer from any and all claims, losses and damages (including
reasonable attorney’s fees) (collectively, “Damages”) asserted by third parties against Customer
only to the extent directly caused by Algarithm’s breach of any covenant, guarantee or warranty in
this Agreement. The above indemnification obligations do not apply, and Algarithm shall not be
liable for any Damages, if the claim against Customer arises from (a) the use or incorporation of the
Product with or in Customer’s own product or (b) Customer has not complied with Algarithm’s
instructions given under Section 6(b) to return or destroy nonconforming Product.
Customer agrees to indemnify Algarithm from any and all Damages asserted by third parties against
Algarithm arising out of (a) any breach of this Agreement by Customer, (b) loss of, damage to or
other contamination of Product after pick-up, (c) the storage, handling, transportation, marketing,
sale or resale, use or disposal of the Product by Customer or any other party or (d) any adverse
events or recall of Customer product. names or service marks, or injury to persons). The above limitations will apply whether an action arises out of breach of contract, warranty, tort, contribution, an obligation to indemnify, subrogation
or otherwise.
Any information, whether in tangible or intangible form, that is confidential, secret, and/or proprietary
to the disclosing party ("Confidential Information") that is received by the receiving party, or any
person acting on the direction of the receiving party: (a) shall be kept strictly confidential by the
receiving party, its directors, officers, employees and agents, (b) shall not be disclosed to any third
party, and (c) shall not be used for any purpose outside of the transactions contemplated by this
Agreement. Confidential Information includes these terms and conditions, order forms, invoices and
may also include, by way of example but without limitation, products, specifications, formulae,
equipment, business strategies, customer lists, know-how, drawings, pricing information, inventions,
ideas, and their potential uses. Without the express written permission of Algarithm, Customer will
not use Algarithm’s trade names, trademarks, logos, service marks, or other proprietary marks for
any purpose (including use on any of Customer’s marketing and advertising materials, packaging
and labeling).
This Agreement sets forth the entire understanding between the parties and supersedes all other
prior agreements, written or oral, between the parties with respect to the subject matter of this
Agreement. There are no understandings, representations or warranties of any kind, express or
implied, not expressly set forth in this Agreement. Customer shall not assign its orders or any rights
or obligations hereunder without Algarithm’s prior written consent.
This Agreement and any claims arising from this Agreement shall be governed by and interpreted in
accordance with the laws of the province of Saskatchewan and the country of Canada, without
giving effect to principles of conflicts of law and the applicable courts situated in or near Saskatoon,
Saskatchewan shall have exclusive jurisdiction.
The rights and remedies set forth in Sections 4, 5 and 6 will be each party’s sole and exclusive
remedies with respect to the Product(s) and this Agreement. These sections, in addition to Section
7, shall survive the expiration of the Agreement.
