Polycast Industrial Products Ltd. (“Polycast”) designs and manufactures products of the highest quality and offers them for sale to customers for use in a wide range of applications, environmental conditions and localities. Because Polycast has no way of controlling the use of the products, customers are responsible to ensure that any product purchased from Polycast meets their requirements. Polycast conducts design tests on each of its products (as well as routine tests on some products) and provides such test data to customers on request. Further, Polycast will engage with its customers in conducting special tests on any product to assist in customer evaluations. However, Polycast will not be responsible for the use, misuse or failure of any Polycast product, nor for the performance or maintenance of any Polycast product, nor for any damages, costs, expenses, loss of profits or other losses or charges (including third-party back-charges) incurred by the customer, unless expressly agreed to by Polycast in writing at the time of the original purchase, or as covered by Polycast’s Limited Warranty – Replacement Only.
Limited Warranty – Replacement Only:
Polycast Industrial Products Ltd. (the “Company”) warrants all products sold by it to be free from defects in material or workmanship for the duration of this warranty. The Company’s liability on this warranty shall be limited to replacement, F.O.B. the original destination of any defective product which is returned to the Company (prior approval having been obtained) within one (1) year of the date of shipment. Except for the limited warranty set out in the immediately preceding sentence, the Company shall not be liable for any damages, costs, expenses or loss of profits or other losses or charges in connection with its products. All products manufactured by the Company are quality inspected prior to shipment. Should any products fail to meet any written specifications accepted by the Company when received by the customer, the customer shall notify the Company within ten (10) days of receiving said goods and the Company shall replace or adjust the defective goods in its discretion.
If any materials shall be manufactured by the Company to meet the customer’s particular specifications or requirements (said goods not being part of the Company’s standard line), the customer agrees to defend, protect and save harmless the Company against all suits at law or in equity and from all damages, claims and demands for actual or alleged infringements of any Canadian or foreign patent, trademark, or other intellectual property interest.
It is usually necessary for Polycast Industrial Products Ltd. (“Polycast”) to design and manufacture various dies, tools and fixtures in order to produce epoxy castings. Polycast maintains its own tool and die shop for this purpose and provides its customers with the necessary tools, dies and fixtures on a shared cost basis for the original manufacture of such tools, dies and fixtures. Also, Polycast has developed certain die fitting techniques which are unique and confidential. Polycast has adopted the following policy with regard to the production of the tools, dies and fixtures and with “fitting-up”.
Fitting-up charges to the customer cover part of the cost of the dies, tools and fixtures required for a particular work. Such dies, tools and fixtures remain the sole property of Polycast and are retained in Polycast’s possession for use exclusively in filling orders of the customer.
No additional charges will be incurred for upkeep or replacement of the dies, tools and fixtures except, if at any time a period of two (2) years has elapsed since the receipt of an order from a customer requiring the use of such dies, tools or fixtures, Polycast may thereafter make any use or disposition of such dies, tools and fixtures as Polycast wishes without accounting to the customer for such use or disposition or the proceeds thereof. If, following such use or disposition, the customer places an order with Polycast that would require Polycast to reproduce the dies, tools and/or fixtures, the customer shall be required to pay all reproduction costs. Such replacement dies, tools and fixtures shall be retained by Polycast in accordance with standard Polycast policy (as explained above).