The following Terms and Conditions of Purchase are applicable to all purchase orders issued by Purchaser (“PO”), except to the extent a written agreement signed by both the Purchaser and the Vendor to govern the supply of goods and/or services identified in the PO is currently in force.
2. ACCEPTANCE BY VENDOR
The Vendor’s goods and/or services are purchased based upon the Vendor’s acceptance of the Terms and Conditions of Purchase set out herein. No clauses in any way adding, modifying or conflicting with these Terms and Conditions of Purchase, no standard terms or conditions endorsed upon, delivered with or contained in Vendor’s quotation, Vendor’s acceptance of the PO specifications or similar document shall be binding upon the Purchaser, unless specifically and expressly agreed upon by Purchaser in writing.
Purchaser’s failure to object to provisions contained in any communication received from Vendor, acceptance of the goods or services, any delay in the exercise of Purchaser’s rights hereunder or any waiver of any default, breach or non-compliance of the terms and conditions of the PO (including these Terms and Conditions of Purchase) shall not be construed nor operate to be a waiver of its rights by the Purchaser.
Vendor shall acknowledge receipt and acceptance or refusal of the terms of any PO by sending a written acknowledgement of receipt by written notice within two (2) business days from its receipt of the PO, otherwise the PO shall be deemed accepted by Vendor.
Upon acceptance of the PO, the Vendor undertakes to supply the goods and/or services to Purchaser in accordance with the terms of such PO, including without limitation the scope of work, quantities, prices and delivery dates, and in accordance with the terms and conditions of purchase set out herein.
3. CHANGE ORDERS
Even after the Vendor has accepted the PO, and provided the Supplier has not shipped the goods for delivery or has not provided the services, Purchaser reserves the right to change or cancel the quantities and delivery dates of the goods and/or services or the PO, at no cost to Purchaser and without liability. If the change or partial cancellation entails an increase or decrease in the total price or affects delivery dates, the PO shall be adjusted accordingly. Any change in the PO shall be made through a modified PO duly approved by both Parties in writing.
Time is of the essence for the PO. If no incoterm is specified in the PO, goods and services shall be delivered by Vendor Delivered Duty Paid (“DDP”) (Incoterms 2010) at the address specifically designated by Purchaser and on the delivery date set forth in the PO. If no delivery date is specified in the PO, the Vendor shall deliver in full within a reasonable period of time of receipt of the PO. Unless otherwise stipulated in the PO, delivery shall only be accepted by Purchaser during normal business hours. Vendor shall ensure that each delivery is accompanied by a delivery receipt which shows the PO number and the date of the PO. Vendor shall comply with Purchaser’s shipping instructions and customs security programs if such is provided by Purchaser.
The goods shall remain the property of Vendor until the transfer of risk to the Purchaser. Without restricting the aforementioned Vendor’s obligations, Vendor shall promptly inform Purchaser in writing of any incident, whether or not under its control, which could delay the delivery of goods and/or services and notify him of the earlier date on which it could make the delivery. In the event that Vendor fails to ship goods on any scheduled shipping date, Purchaser shall have the right to specify a more rapid method of shipment than was specified originally and Vendor shall bear, at no additional cost to Purchaser, any increased costs occasioned thereby.
If Vendor cannot deliver the goods and/or services on or before the delivery date specified in the PO, Purchaser may, at its sole discretion, either: (i) accept a later delivery date, without prejudice to any rights it may have under the terms and conditions of purchase herein or at law, or (ii) cancel the PO and claim any amount previously paid to Vendor for the goods or services in addition to any costs, expenses, damages arising out of the failure of Vendor to deliver the goods or services on the delivery date set out in the PO.
5. EARLY AND OVER SHIPMENTS
Purchaser shall be entitled to reject any delivery made more than ten (10) days in advance of the requested delivery date, or any part of a shipment in excess of the requested quantity. All costs associated with early or over delivery will be the responsibility of the Vendor. In the case of early delivery not being rejected by Purchaser, the invoice due date will be calculated based on the requested delivery date.
The goods ordered under the PO shall be properly packaged by Vendor in accordance with applicable trade practices so that they are not damaged and in good working condition when received by Purchaser. Goods damaged in transit due to faulty packaging, transportation or other may be rejected by Purchaser and, without prejudice to any other rights Purchaser may have under these Terms and Conditions of Purchase or at law, all costs associated with returning the goods will be the responsibility of the Vendor.
7. PRICE & PAYMENT TERMS
The price of the goods and services is as set forth in the PO. The prices set forth in the PO are exclusive of any applicable sales taxes but inclusive of all other charges (including without limitation packaging and certification). Purchaser reserves the right to make, pursuant to tax laws, any deduction or withholding from any sum payable to Vendor under the PO.
Purchaser will make payment to the Vendor for the goods or services within sixty (60) days of the latest of: (i) the date of the receipt of the invoice or (ii) the delivery date of the goods or services.
Without prejudice to any other right or remedy, Purchaser reserves the right to set off any amount due at any time by Vendor to Purchaser against any amount payable by Purchaser to Vendor under the PO.
Vendor warrants that all the goods supplied under the PO will be in good working order, be fit for the purpose for which they are intended, be free from defects in design, material and workmanship, conform to specifications, manuals, descriptions, characteristics, performance, drawings or samples given by Vendor or attached to the PO and comply with all applicable laws in the country where the goods are delivered including compliance with any health and safety requirements, policies or procedures. The Vendor further warrants that it has the skills, knowledge and experience necessary to perform all services provided under the PO and that such services will be performed diligently and professionally, in accordance with the best industry standards and with all applicable laws in the country where the services are delivered including compliance with any health and safety requirements, policies or procedures and will be free from defects. All warranties are in addition to any warranty provided by law, in equity or by the Vendor.
All warranties shall continue in force for the period of time indicated on the PO. If no warranty period is indicated on the PO, all warranties shall continue in force for a period of time which conforms to the expected useful lifespan of the goods and/or services, provided that the period be not less than twelve (12) months from the date upon which the goods are put to use or installed, as the case may be, or from the date upon which the supply of services is complete, in the case of services. The aforementioned warranties inure to the benefit of Purchaser and its affiliates, customers or users of the goods or services. In the event of any defect or failure of goods or services within the warranty period, and without prejudice to any other right or remedy provided herein or at law, the Vendor agrees to immediately replace defective goods or repair defects or failures, or re-perform the services, as applicable, the whole at Vendor’s sole costs and expenses.
Purchaser’s failure to inspect the goods and/or services, acceptance of deliveries without protest, use of the goods and/or service or payment of invoices shall not constitute acknowledgement that the goods and/or services comply with and satisfies the requirements of the above warranties.
The Vendor shall promptly notify Purchaser if it becomes aware of any information that would in any way affect any of the warranties given by Vendor to Purchaser including, without limitation, if Vendor becomes aware of any defect in a good and/or service.
9. COMPLIANCE WITH LAWS
Vendor shall comply with all applicable federal, provincial, state and/or local laws, rules, regulations and other legal requirements. Vendor shall make available to Purchaser all safety information related to the goods and any update thereof.
10. HAZARDOUS SUBSTANCES
If any of the items ordered herein contain “hazardous substances” as defined by any applicable Federal, Provincial or local law, rule or regulation, Vendor shall provide at the time of delivery all required notices and information, including without limitation all Material Safety Data Sheets (“MSDS”) in approved form, in English and French. Vendor agrees to maintain such information current and shall provide Purchaser with any amended, altered or revised information on a timely basis or when requested by Purchaser.
11. GOOD TITLE AND INTELLECTUAL PROPERTY
Vendor represents and warrants that it provides good title to any goods and services furnished under a PO and that the goods and services do not infringe on any third party’s intellectual property rights, including any patent, copyright, designs and trade marks (whether registered or unregistered), trade secrets, know-how or other intellectual property rights and similar or equivalent rights which currently exist or are recognized in the future anywhere in the world and applications, extensions and renewals in relation to such rights (collectively “Intellectual Property Rights”).
12. LIABILITY, INDEMNITY AND INSURANCE
Vendor shall be responsible for and hereby agrees to indemnify, defend and hold harmless Purchaser, its affiliates and their respective employees, directors, officers, shareholders, agents, contractors and consultants, from and against any and all demands, claims, losses, damages, injuries, liabilities, costs and expenses, including without limitation, interest, penalties and reasonable attorneys’ fees and expenses (collectively “Claims”) asserted against, imposed upon or incurred by Purchaser, its affiliates or any of their respective employees, directors, officers, shareholders, agents, contractors and consultants, directly or indirectly, related to, arising out of or resulting from:
(i) any breach of any of Vendor’s warranties;
(ii) any breach or failure by the Vendor to perform any obligations contained herein or in a PO;
(iii) any infringement or alleged infringement to any third party’s Intellectual Property Rights arising out of the design, manufacture, sale or use of the goods or services; or
(iv) the negligent acts, omission, or misrepresentation of the Vendor.
The Vendor shall not accept any settlement of any pending or threatened Claim unless such settlement includes an unconditional release of the Purchaser from all liability for or arising from that Claim and requires no admission of fault or liability by the Purchaser.
The Vendor shall, at its own expenses, take out and maintain a comprehensive commercial general liability insurance policy with an insurance carrier rated “A” or better by Best’s or any similar rating service in the amount not less than two million dollars ($2,000,000) per occurrence and five million dollars ($5,000,000) in aggregate per year and have Purchaser, its Affiliates and any of their respective employees, directors, officers, shareholders, agents, contractors and consultants as additional insured. Vendor shall provide copies of its insurance policies and premium receipts following a request by Purchaser. Vendor covenants and agrees to obtain other insurance coverages as Purchaser may reasonably request from time to time.
For as long as the information does not become readily available to the trade or in the public domain through no act, fault or omission of the Vendor, the Vendor shall not, and shall cause its affiliates and its employees, directors, officers, agents, contractors and consultants, to treat as strictly confidential, not to disclose or, for purposes other than the execution of the PO, any information which it / they may become aware during the performance of the PO concerning the Purchaser or the Purchaser’s affiliates business, financial information, volumes, procedures, products, prices, specifications, facilities, and equipment and any other information generally considered as confidential (the “Confidential Information”), except if required by law to disclose it. Confidential Information shall be retained in a secure place with access limited to employees, directors, officers, shareholders, agents, contractors and consultants of the Vendor who need to know the Confidential Information for the purpose of the PO, have been informed and have agreed to receive the Confidential Information on a confidential basis on the same terms as contained herein. All Confidential Information shall be destroyed after the Vendor’s need for it has expired or upon request of the Purchaser, and, in any event, upon termination of the PO. Notwithstanding the foregoing, the Vendor shall not have the obligation to destroy copy of the Confidential Information to the extent required to comply with applicable law, regulatory authority or existing company commercially reasonable retention policies nor destroy any backup made in the ordinary course of business, provided in each case herein, any such Confidential Information retained shall remain subject to the confidentiality obligations.
Vendor shall not use Purchaser’s name or logo for the purposes of advertising, press releases, promotion, solicitation or any other purchase without the prior written consent of Purchaser.
Purchaser shall have the right at any time by giving notice in writing to Vendor to terminate the PO immediately without having to request a court order and without liability if:
- Vendor fails to or threatens not to fulfil any of the terms and conditions of the PO;
- Vendor ceases operations, becomes insolvent, files or is served with a petition in bankruptcy or with respect to its insolvency, is declared bankrupt, makes an arrangement with its creditors or makes an assignment to their benefit, goes into liquidation or receivership, or otherwise loses legal control of its business or any of its material assets;
- the financial position of Vendor deteriorates to such an extent that, in the opinion of Purchaser, the capability of Vendor to adequately fulfil its obligations under the PO could be in jeopardy.
Purchaser shall then be entitled to avail itself of any one or more of the following remedies described below at its sole option:
- rescind the PO, reject the goods and return them to Vendor, at the risk and cost of Vendor;
- give Vendor the opportunity to quickly, at Vendor’s expense and Purchaser’s option, remedy any defect or nonconformity, supply a replacement and carry out any other necessary services to ensure that the goods and/or services conforms to the terms of the PO;
- claim any amount previously paid to Vendor for the goods and/or services, and
- claim such costs, expenses, damages or decrease of price arising out of the nonconformity or defect of the goods and/or services.
The termination of the PO or any part thereof, however arising, shall be without prejudice to the rights and obligations of Purchaser accrued prior to termination.
The provisions which expressly or impliedly have effect after termination, including, without limitation, confidentiality, liability, indemnity and warranty provisions shall continue to be enforceable as long as necessary to give them full force and effect, notwithstanding the termination of the PO.
15. ASSIGNMENT & SUBCONTRACTING
Vendor shall not subcontract or assign any or all of its rights or obligations to supply goods and/or services pursuant to the PO without the prior written consent of Purchaser. In all events, assignor shall remain fully liable under the PO with the assignee. Without limiting the generality of the foregoing, it is expressly agreed that Vendor shall remain fully liable to Purchaser for the performance and the acts and/or omissions of any supplier, vendor or subcontractor appointed by Vendor to assist in the performance of its obligations. The engagement of any supplier, vendor or subcontractor by Vendor shall not relieve Vendor of any of its obligation under the PO.
16. FORCE MAJEURE
Neither Party shall be liable for any failure or delay to perform its obligations under a PO if such failure results from an unforeseeable and unpreventable event which is beyond the Party’s control such as acts of God, acts of governments, wars, hostilities and flood (a “Force Majeure Event”). Notwithstanding the foregoing, Force Majeure Event shall not include any strike, slowdown, lock-out or other labor dispute involving the Vendor’s employees.
If either Party is affected by a Force Majeure Event, it will use all best endeavours to avoid or cure the Force Majeure Event and will promptly notify the other Party of the nature of the Force Majeure Event, the nature of any actual or anticipated failure, delay or imperfect performance and the anticipated consequence and length of such failure, delay or imperfect performance. If Vendor shall be unable, due to a Force Majeure Event to meet all of its delivery commitments for the goods and/or services ordered, Vendor shall not discriminate against Purchaser in favor of any other customer in making deliveries of such goods and/or services. If Purchaser believes that the delay or anticipated delay in Vendor’s deliveries may impair its ability to meet its production schedules or may otherwise interfere with its operations, Purchaser may at its option and without liability to Vendor cancel outstanding deliveries wholly or in part, in which case Vendor shall reimburse Purchaser any amount previously paid for goods and/or services.
17. PRIORITY OF DOCUMENTS
Except to the extent a written agreement signed by the Purchaser and the Vendor is currently in force to govern the supply of goods and/or services identified in the PO, these Terms and Conditions of Purchase and the related PO, including all of its attachments, constitute the entire agreement between the Parties as to its subject matter and supersede all prior agreements and understandings. No amendment, modification or addition shall be binding unless it is in writing and signed by both Parties.
In the event of any conflict or inconsistency between the terms of the documents exchanged/issued between the Parties, these conflicts or inconsistencies shall be resolved in accordance with the following order of precedence:
- any non-preprinted terms in the PO, as long as these terms expressly state that they amend one or more specific terms and conditions provided herein;
- written agreement signed by the Purchaser and the Vendor and currently in force to govern the supply of goods and/or services identified in the PO if any;
- these Terms and Conditions of Purchase herein;
- the PO;
- any other document signed by the Parties;
- any specifications, manuals, descriptions, characteristics, performance, drawings or samples provided by Vendor.
18. GOVERNING LAWS
The PO and these Terms and Conditions of Purchase shall be governed by and construed in accordance with the laws of the Province and/or State where the address of the Purchaser set forth on the PO is located and the Courts of such Province and/or State shall have sole jurisdiction. The Parties agree to exclude the PO from the application of the United Nations’ Convention on the Sale of Goods.
All rights and remedies of Purchaser provided under the PO and these Terms and Conditions of Purchase shall be cumulative and in addition to any rights and remedies granted by the applicable law. If any provision of these Terms and Conditions of Purchase is found by any court, tribunal or administrative body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the other provisions and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The Parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision. The Parties have expressly agreed that these Terms and Conditions of Purchase be drafted in English. /Les Parties se sont expressément entendues pour que ces Termes et Conditions d’Achat soient rédigés en anglais.
Terms and Conditions of Purchase (April 2020)