In these terms and conditions “Purchaser” means the person/entity ordering the “Goods and/or Services” described in the Purchase Order and “Supplier” means the person, firm or corporation from whom the “Goods and/or Services” described in the Purchase Order have been ordered.
- The terms and conditions of the Purchase Order constitute the entire agreement between the parties and supersede all previous communications whether oral or in writing. Changes will be binding only if in writing signed by an authorized representative of the Purchaser. The parties agree that, unless otherwise specifically agreed in writing, the terms and conditions of the Purchase Order will prevail over any existing or subsequent terms and conditions which the Supplier directly or indirectly (and whether orally or in writing) provides the Purchaser and that such other terms and conditions are rejected by the Purchaser.
- The Purchase Order, when properly signed by the Purchaser and signed by the Supplier and bearing an order number is the only document which will be recognized by the Purchaser as authority for charging the Goods and/or Services to its account.
- No local, general or trade customs can alter or vary the terms and conditions of the Purchase Order.
- The Supplier will supply the Goods and/or Services to the Purchaser in accordance with the terms of the Purchase Order.
- If Services are to be performed by or on behalf of the Supplier under the Purchase Order or in connection with the Supply of Goods under the Purchase Order, the Supplier will, and will ensure that its employees, agents and sub-contractors (if any) perform such Services in a safe, proper, professional and workmanlike manner, and exercise that degree of care, skill, diligence and foresight which would reasonably and ordinarily be expected from a skilled and experienced operator engaged in the same type of undertaking under the same or similar circumstances. The Supplier will ensure that its employees, agents and sub-contractors (if any) are appropriately skilled and qualified for the performance of the Services and hold any relative certifications required in respect of the performance of such Services.
- Any prices specified in the Purchase Order are fixed, firm and not subject to escalation and include freight, cartage, insurance, packaging, use or supply of pallets and containers, all taxes, duties, and fees payable in respect of the Goods and/or Services and any other extra costs.
- Unless otherwise specified in these terms and conditions, no increase in prices and/or extensions of time will be binding unless approved by the Purchaser in writing.
- The Supplier represents and warrants that the prices charged for the Goods and/or Services covered by the Purchase Order are the lowest prices charged by the Supplier to a purchaser of a class similar to the Purchaser purchasing in quantities and under circumstances comparable to those specified in the Purchase Order.
- Notwithstanding clauses 1.1 and 3.1, any price reduction made by the Supplier with respect to the Goods and/or Services covered by the Purchase Order, subsequent to the placement of the order and prior to the Purchaser’s receipt of the Goods and/or Services, shall apply to the Purchase Order.
- The prices specified in the Purchase Order are inclusive of any local taxes in the nature of a goods and services tax or value added tax or similar sales tax, unless otherwise expressly stated. Where the Purchaser is entitled to recover the amount of the local tax charged to it from a Government authority then the price agreed by the parties in connection with the supply may be increased by the amount of local tax and such amount shall be payable to the Supplier at the same time and manner as the price (exclusive of the local tax) is payable. Within 7 days of the invoice date the Supplier must provide the Purchaser with any documentation required by the Government authority to allow the Purchaser to recover the local taxes from the Government authority.
INVOICES AND PAYMENTS
- The payment and discount periods will begin from the date the Purchaser receives the Supplier’s invoice or the Goods and/or Services as specified in the Purchase Order, whichever is the later. Delays in the delivery of the Goods and/or Services will justify the Purchaser withholding payment of the invoice without loss of the cash discount stated in the invoice.
- Unless otherwise agreed, the Supplier’s invoice will be paid within 60 days from the end of the month in which the Purchaser receives the Supplier’s invoice or the Goods and/or Services specified in the Purchase Order, whichever is the later.
- Subject to clause 5.2, the Goods and/or Services must be delivered on or before the date specified in the Purchase Order (“the Delivery Date”) at the address specified in the Purchase Order. The Supplier acknowledges that time is of the essence in delivery of the Goods and/or Services. The Supplier should be aware of all site safety requirements when arranging delivery.
- Unless otherwise agreed by the Purchaser in writing, no delivery shall be made more than 7 days prior to the Delivery Date and the Purchaser reserves the right to return earlier deliveries at the Supplier’s risk and expense or charge the Supplier any additional cost incurred by the Purchaser as a result of the early delivery.
- The Supplier must ensure that all invoices, packing slips, delivery dockets and correspondence provided to the Purchaser have clearly marked on them the order date, unit, part number and description shown on the front of the Purchase Order, and that all deliveries of Goods and/or Services be accompanied by a delivery docket.
- The Purchaser reserves the right to nominate its own freight forwarder to expedite delivery of the Goods and/or Services. If use of the Purchaser’s freight forwarder causes an increase in the Supplier’s standard freight forwarding cost, the Purchaser will pay to the Supplier the increase in the freight forwarding costs provided the Supplier is not in breach of the terms and conditions of the Purchase Order and the increase is reasonable in the opinion of the Purchaser.
- The Purchaser reserves the right to reject Goods and/or Services delivered by means of ‘cash on delivery’ (C.O.D) shipment, in the absence of the Purchaser’s prior written consent. Such Goods and/or Services will be at the Supplier’s risk.
- Goods and/or Services must conform to all specifications stated in the Purchase Order unless otherwise authorized in writing by the Purchaser.
- If a specification is not provided in the Purchase Order the minimum product quality level for the Goods and/or Services will be that of an agreed international standard or of samples submitted by the Supplier and approved by the Purchaser.
- The Supplier acknowledges that all changes in specifications for the Goods and/or Services may have to be submitted to and approved by a government or regulatory agency. The Supplier agrees to give the Purchaser at least six months’ notice in writing of any changes in specifications. The Purchaser reserves the right to reject any change in specification.
PURCHASER FURNISHED PROPERTY
- The following definitions shall apply to this clause: “Purchaser Tools” are tools, equipment, or other property furnished to the Supplier by the Purchaser. “Non-unique Tools” are either general tools or special tools made to produce and which have application only to produce the Goods and/or Services. “Unique Tools” are tools, which have application only to the Supplier’s method of operation, which may be either general or special.
- Purchaser Tools shall remain the property of the Purchaser. Unless otherwise agreed, Non-unique Tools, which are specifically paid for by the purchaser, whether itemized or separately included in the price of any Goods and/or Services and are for use in the performance of the Purchase Order, shall be and remain the Purchaser’s property. Unless otherwise previously agreed in writing, other Non-unique Tools and Unique Tools shall be the property of the Supplier, but any such tools shall be subject to use by the Purchaser in the event the Supplier is unable to make deliveries due to an occurrence beyond the Supplier’s reasonable control including, without limitation, fires, strikes, industrial disturbances, riots, wars, act of God, government order or regulation, storm, tempest or epidemics.
- Any property owned by the Purchaser shall be used only in filling the order set forth in the Purchase Order and any similar orders from the Supplier’s custody and control in an amount equal to the replacement cost thereof, with loss payable to the Purchaser. When instructed by the Purchaser, the Supplier shall deliver any property owned or subject to use by the Purchaser to the Purchaser (or to any other agent the Purchaser may designate) in good condition, ordinary wear and tear excepted, and such property shall be subject to repossession or removal by the Purchaser upon instructions by the Purchaser.
- All Goods and/or Services are subject to inspection by the Purchaser at all times and places, including but not limited to upon arrival at their ultimate destination even though payment may have been made prior to arrival.
- If any inspection by the Purchaser of the Goods and/or Services is made on the Supplier’s premises, the Supplier shall, without additional charge, provide all reasonable facilities and assistance for the safety and convenience of the Purchaser’s inspectors.
Despite any prior payment, signing of the Purchase Order or acceptance of the Goods and/or Services by the Purchaser, if, upon inspection the Goods and/or Services are found to be unsafe, unsatisfactory, defective or of inferior quality or workmanship, or fail to meet any other requirements specified in the Purchase Order (“the
- Deficiencies”), the Purchaser may give written notice of rejection of the Goods and/or Services to the Supplier specifying the Deficiencies and may return the Goods and/or Services to the Supplier.
- Upon giving notice of rejection of the Goods and/or Services to the Supplier, all amounts paid by the Purchaser to the Supplier on account of the purchase price of the rejected Goods and/or Services must be immediately repaid by the Supplier to the Purchaser.
- Upon the Supplier receiving the notice of rejection of the Goods and/or Services:
- The Supplier must arrange for the immediate removal of the rejected Goods and/or Services from the Purchaser’s premises, at the expense of the Supplier; and,
- Notwithstanding any term or condition to the contrary, the Supplier will assume all risk associated with the rejected Goods and/or Services.
- The Purchaser at all times is entitled to recover damages for any loss sustained in consequence of the Goods and/or Services being unsatisfactory, defective, of inferior quality or workmanship, or failing to meet any other requirements of the Purchase Order, irrespective of whether or not the Purchaser has inspected the Goods and/or Services or given the Supplier notice of rejection.
- The Purchaser may charge the Supplier for the cost of an above normal level of inspection of the Goods and/or Services if rejection of the Goods and/or Services based on the Purchaser’s normal inspection level endangers production schedules and if the inspected Goods and/or Services are necessary to meet production schedules.
TITLE AND RISK
- Title and risk associated with the Goods and/or Services will pass to the Purchaser on delivery of the Goods and/or Services at the address specified in the Purchase Order, in accordance with these terms and conditions except where payment is made prior to delivery in which event title in the Goods and/or Services will pass to the Purchaser as soon as payment is made.
- Anything furnished to the Supplier by the Purchaser pursuant to the Purchase Order including, without limitation, samples, drawings, patterns, tooling, equipment, work in process and materials, will remain the property of the Purchaser, will be held at the Supplier’s risk and the Supplier will be the insurer of the material and will return the material upon completion of the work or upon demand by the Purchaser.
- The Supplier warrants to the Purchaser that the sale or use of Goods and/or Services covered by the Purchase Order does not infringe any patent, trademark, copyright, registered design, or other intellectual property right. The Supplier agrees to defend, indemnify, and hold harmless the Purchaser and its customers and to hold the Purchaser or its customers on account of any such infringement, whether actual or claimed.
- In the supply of Goods and/or Services in accordance with the Purchase Order, the Supplier must comply with all applicable laws, ordinances, orders, rules, and regulations (including, but not limited to, those relating to occupational/work health and safety), whether international, national, state or local. Any provision which is required to be a part of the Purchase Order by virtue of any such law, regulation, rule or order is incorporated by reference.
- Upon request by a Purchaser, the Supplier must furnish the Purchaser with such evidence of compliance with clause 10.1 as the Purchaser may require. The Supplier must undertake strict testing to ensure that the Goods and/or Services comply with the requirements set out in this clause 10 and must provide the Purchaser to its reasonable satisfaction with evidence of such testing including by attaching such evidence to all product requests, purchase orders or contracts.
- The Supplier shall provide all product information relating to the handling of the Goods and/or Services purchased under the Purchase Order as may be required by law.
- The introduction of the Work Health and Safety Act 2011 sees new and expanded obligations for businesses to consult, co-operate and communicate where business activities may overlap. By engaging a supplier, the Purchaser is required to ensure that any changes to site, policies or processes that may affect the health and safety of our suppliers and their workers are communicated effectively.
ANTI-CORRUPTION AND ETHICS
- Each party hereby represents, covenants and warrants that it shall not:
- violate any applicable laws including (without limitation) any laws in regards to anti-corruption, anti-bribery and money laundering, modern slavery or human rights (any such violation being a material breach of the Purchase Order), and shall promptly notify the other party in writing in the event of any actual or alleged violation of such laws; and
- during the term of the Purchase Order, nor shall any of its directors, officers or employees engage (or cause another party to engage) in any activity that is, or is reasonably likely to be, in breach of clause 12.1(1).
- If either party is subject to any regulatory investigation as a result of the actions of the other party, the other party shall indemnify the party under investigation for any costs associated and shall fully co-operate with such investigation.
- If either party receives any requests for bribes from any third party relevant to the Purchase Order, such party shall promptly report this request to the other party.
- If either party reasonably believes that a breach of any of the representations, covenants or warranties contained within clause 12.1 has occurred or is reasonably likely to occur, said party may terminate the Purchase Order immediately and pursue all available remedies.
- Notwithstanding clause 12.4, in the event an applicable court of law or tribunal finds a breach of any representations, covenants or warranties under clause 12.1 by a party, the Purchase Order will automatically terminate and the party found to be in breach shall indemnify the other party and its directors, employees and each of its related and associated companies, in respect of any damages, losses, fees and costs (including, without limitation, audit costs) incurred by that other party as a result of or in relation to such breach.
- The Supplier must hold and maintain, during the term of the Purchase Order and at least 6 years after the termination of the Purchase Order, valid and enforceable policies with a reputable insurer in respect of public liability insurance, product liability insurance, professional indemnity insurance and, where the Supplier employs employees, workers compensation insurance.
- The Supplier must, on request by the Purchaser from time to time, provide the Purchaser with evidence of the currency of such policies and supply up to date copies annually upon the anniversary of the date of the Purchase Order.
- The Supplier warrants that the Goods and/or Services are:
- Merchantable and of good quality material and workmanship, free from defects in design, materials, and workmanship;
- Manufactured in accordance with all specifications set out or referred to in the Purchase Order;
- Safe for handling and intended use;
- Suitable for the use and conditions intended; and
- Free and clear of all liens and encumbrances whatsoever.
- The warranties provided in clause 14.1 are in addition to any warranties of broader scope given to the Purchaser by the Supplier at any time.
- The Supplier will defend, indemnify, and hold harmless the Purchaser against any loss, action claims, costs, damages, and expenses arising out of or in connection with a breach of the warranties given by the Supplier in the Purchase Order.
- Notwithstanding any other provision in these terms and conditions, the Supplier warrants that the Goods and/or Services will provide full functionality and operate without adverse effect for all dates.
- The warranties and indemnities provided in this clause extend to the Purchaser, its successors, assigns and customers.
- In addition to any other liability arising in respect of the Purchase Order, the Supplier agrees that if the Supplier is by its own negligence unable to comply with the specifications in the Purchase Order including supply of the Goods and/or Services by the delivery dates and in the quantity specified or supplies faulty or non-conforming Goods and/or Services the Supplier will compensate the Purchaser for any losses incurred by the Purchaser which have been caused directly or indirectly by the Supplier’s negligence.
- The Purchaser may make changes to the Purchase Order, including, without limitation, changes in the quantity, specifications, method of shipment, packaging, or delivery, by giving written notice to the Supplier. Pursuant to any such change, the Supplier may request an adjustment to the purchase price and/or delivery date by providing written notice to the Purchaser within 10 days from the date when the change was ordered, however no such price adjustment shall be binding until agreed upon in writing by both parties.
- The Supplier shall not make any substitutions of materials or accessories forming part or all of the Goods and/or Services without Purchaser’s prior written consent.
- If the Goods and/or Services specified in the Purchase Order constitute standard stock merchandise, the Purchaser, may cancel at any time by notice in writing to the Supplier an unshipped portion of the Purchase Order. On cancellation the Purchaser will have no further obligation to the Supplier other than to make payment for Goods and/or Services delivered to the Purchaser before the Supplier received notice of cancellation.
- If the Goods and/or Services specified in the Purchase Order constitute Goods and/or Services manufactured or fabricated in accordance with the specifications and directions of the Purchaser, the Purchaser may at any time prior to completion of the manufacture or fabrication of the Goods and/or Services cancel the Purchase Order by notice in writing to the Supplier. Upon receipt of the notice the Supplier must stop work except as otherwise directed by the Purchaser. After cancellation, the Purchaser will pay to the Supplier the amounts calculated as follows:
- The Supplier’s actual out of pocket costs and expenses to the date of the cancellation, including its expenses in connection with cancellation of any sub-contract, as approved by the Purchaser, plus five percent (5%) of such costs and expenses, but in no event can the total amount to be paid to the Supplier exceed the purchase price specified in the Purchase Order.
- If the Supplier on receipt of the notice of cancellation is in default under these terms and conditions the Supplier will not be entitled to the five percent (5%) of its out-of-pocket costs and expenses.
- Upon making the payment, any of the Goods and/or Services or uncompleted portions of the Goods and/or Services will become the property of the Purchaser. Notwithstanding anything contained in these terms and conditions, the Supplier is not entitled to any prospective profits, or any damages caused by cancellation of the Purchase Order by the Purchaser, including for the avoidance of doubt, consequential losses, lost profits, lost opportunity, loss of goodwill or any other direct or indirect losses of any kind.
- Any specifications, engineering and other data, software, drawings, blueprints and other documents, in tangible or electromagnetic form provided by the Purchaser (or any third party at request of the Purchaser) or any information otherwise disclosed by the Purchaser to the Supplier for the purposes of the Purchase Order or otherwise (the “information”) must be treated as highly confidential and the Supplier agrees:
- Not to use or copy the information for any purpose other than the fulfillment of the Purchase Order;
- Not to disclose the information to any other person without the prior consent of the Purchaser; and
- To return to the Purchaser or, at the direction of the Purchaser, destroy the information (including, if so demanded by the Purchaser, all copies) on completion of the delivery of the Goods and/or Services.
- The obligations set out in this clause survive termination of the Purchase Order and continue for 3 years thereafter.
- Information presently in the public domain, or which is rightfully received by the Supplier from a third party, or information which both the Purchaser and the Supplier agree in writing may be disclosed, shall not be considered confidential.
- The Supplier shall not disclose to the Purchaser any information that it deems to be confidential, and it is understood that no information received by the Purchaser, including manuals, drawing and documents, will be of a confidential nature or restrict, in any manner, the use or disclosure of such information by the Purchaser. The Supplier agrees that any legend or other notice on or pertaining to any information or materials supplied by it that is inconsistent with the preceding sentence shall create no obligation on the part of the Purchaser.
- The Supplier shall not advertise or otherwise disclose the fact that the Supplier has furnished the Goods and/or Services to the Purchaser under the Purchase Order, without the Purchaser’s prior written consent.
- The Purchaser will retain title to any intellectual property rights (which includes any statutory or common law copyright, trademark, patent, design or circuit layout rights) arising out of or in connection with any specifications, drawings, designs, or layouts in any tangible or electromagnetic forms which are disclosed to the Supplier in relation to the performance of the Purchase Order and nothing in the Purchase Order shall result in an assignment, transfer or license of any intellectual property rights from the Purchaser to the Supplier.
- Where Goods and/or Services provided by the Supplier to the Purchaser under the Purchase Order are subject to intellectual property rights owned by, or licensed to, the Supplier, the Supplier will provide the Purchaser with the necessary royalty free license, free of any ongoing obligations or restrictions, necessary for the Purchaser to exploit and commercialize the Goods and/or Services. If the Supplier does not have the right to provide the Purchaser with the necessary royalty free license, the Supplier will take whatever actions are necessary to provide the Purchaser with the necessary royalty free license.
- The clause 19.3 applies if supply of the Goods and/or Services involves the design or development of hardware or software. The Supplier shall disclose and assign on demand, and does assign to the Purchaser all inventions, improvements, or developments, whether patentable or not, which it may make or assist in making in the course of such development. The Supplier assigns, agrees to assign on demand, and shall cause every appropriate person employed by or associated with it to assign, to the Purchaser, all patents, copyrights and applications for patents or copyrights in connection with any such invention, improvement, or development and to do all acts and to execute all instruments which the Purchaser may request. The Supplier acknowledges that all information, ideas, results, and data developed by the Supplier as a result of the developmental work contemplated by the clause shall be transmitted by the Supplier only to the Purchaser, is the exclusive property of the Purchaser and shall be regarded by the Supplier as confidential for the same period and be subject to the same exceptions provided in clause 18.
- Notwithstanding any term or condition to the contrary, the Purchase Order may be terminated in whole or in part at the option of the Purchaser and on providing written notice to the Supplier, upon the happening of any of the following events:
- If the Supplier is adjudicated bankrupt, or if a receiver or trustee is appointed to the Supplier, or for an assignment for the benefit of the Supplier’s creditors is made;
- If, in the opinion of the Purchaser, the Supplier fails to substantially perform or is in breach of any material covenant, obligation, representation or warranty and the Purchaser delivers to the Supplier written notice informing the Supplier of the default and is not cured within 10 days after receipt of the notice; and
- If, for any reason the Purchaser wishes to terminate (either in whole or in part) the Purchase Order at its convenience and, in such case, the extent of liability of the Purchaser shall be:
- Where the Purchase Order is terminated in part, the portion of the contract price as the work completed bears to the whole; or
- If the Goods and/or Services involves the supply of hardware, the cost of existing ‘finished goods’ inventory, but no more than that which is required to fulfill the next delivery schedule within 30 days following the date of termination plus the existing ‘work in progress’, being material in varying stages of completion with some degree of labor applied and/or individual piece parts and/or raw material in a stage of completion but no more than that which is necessary to meet delivery schedules.
- In the event of termination by the Purchaser due to the occurrence of an event described in clauses 20.1(1) or 20.1(2), the Purchaser shall have no liability to the Supplier as a result of such termination. In the event of termination under clause 20.1(3), the Purchaser may further notify the Supplier that all right, title and interest in and to the Goods and/or Services acquired by the Supplier for the performance of the Purchase Order shall pass immediately to the Purchaser on payment thereof. The Purchaser shall have the right to enter the premises where such Goods and/or Services may be located and take possession thereof.
- Supplier must comply with the Privacy Legislation, and do all things requested in writing by Purchaser (acting reasonably) to enable Purchaser to comply with all requirements of the Privacy Legislation.
- Without prejudice to the generality of clause 21.1, Supplier must, in relation to any Personal Information collected, processed, used or held in connection with the performance by Supplier of its obligations under this Agreement:
- use such Personal Information only for the purpose of fulfilling its obligations under this Agreement;
- unless required by law, not disclose such Personal Information without the prior written consent of Purchaser;
- ensure that it has in place appropriate physical technical and organizational measures to protect against unauthorized or unlawful processing of Personal Information and against accidental loss or destruction of, or damage to, Personal Information; and
- not disclose, allow access to or transfer any Personal Information to any person or entity (including itself) outside Canada without Purchaser’s prior written consent.
In this clause, Privacy Legislation means the Personal Information Protection and Electronic Documents Act of Canada “PIPEDA”, (amended June 21, 2019) and any applicable analogous legislation in any jurisdiction as amended from time to time and Personal Information has the meaning given to that term in the PIPEDA.
- The Purchase Order cannot be assigned by the Supplier, nor can the Supplier enter into a subcontract with any other party for the purposes of providing the Goods and/or Services under the Purchase Order, without the prior consent of the Purchaser which may be withheld or granted conditionally at its discretion.
- Failure of the Purchaser to insist upon strict performance of any of these terms and conditions will not be a waiver of rights or remedies that the Purchaser has and will not be a waiver in respect of any subsequent default by the Supplier of these terms and conditions.
- Under no circumstances will the Purchaser be liable to the Supplier for consequential losses, lost profits, lost opportunity, loss of goodwill, punitive damages or any other direct or indirect losses of any kind.
- These terms and conditions are governed by and construed in accordance with the law applicable in the location of delivery of the Goods and/or Services. For greater clarity, if there is any dispute as the applicable laws, the laws of Canada will prevail for the interpretation as well as any dispute involving this terms and conditions.
- If any provisions of these terms and conditions are found to be invalid, all other provisions which are self-sustaining and capable of separate enforcement will continue to be valid and enforceable.
- Any notice required under the Purchase Order must be given in writing or by facsimile only to the parties at the address or facsimile number specified by the party on the Purchase Order (or at such other address or facsimile number as may be provided by the party in writing for the purpose). Once notice is given or made it takes effect, in the case of a notice by post, three days after posting, and in the case of notice by facsimile, on production of a transmission report by the transmitting facsimile machine confirming that the facsimile was sent in its entirety.
- The Purchaser and each of its related and associated companies may set off any sums due to the Supplier against any monies owing by the Supplier to the Purchaser or any of its related associated companies.