Non-U.S. Purchase Order Terms and Conditions
1. Sole Agreement: This Purchase Order constitutes the entire agreement of the parties with respect to this transaction except as to additional product quality and performance representations of Seller, provided in the event of any conflict or inconsistency between this Purchase Order and any such additional product quality and performance representations of Seller, this Purchase Order shall prevail. Buyer objects to and shall not be bound by any past or future terms and conditions not set forth herein, including any additional or inconsistent terms shown on Seller’s sales confirmation, shipping documents, or invoices, and any additions or inconsistencies therein with the provisions hereof shall be null and void.
2. Changes: No claims or charges will be allowed by Buyer for additional, altered, or substituted work or material, or for drayage or packing; and no addition, deduction, alteration or substitution of Goods or Services to be provided hereunder, or changes in price will be permitted except on written authority from the Buyer in the form of a written change order. Buyer, by the issuance of a written change order may alter, substitute, add or remove any of the Goods or Services to be provided hereunder. Upon acceptance by the Seller, each change order will be incorporated into the Purchase Order and take precedence over the original Purchase Order in the event of any inconsistency.
3. Price: Except for taxes specified in paragraph 15 below, prices stipulated are net, unless otherwise indicated, inclusive of all taxes, customs duties, charges, and all other costs and expenses in connection with the performance of this Purchase Order. Seller is exclusively liable for, and shall pay before delinquency, all custom duties, charges, taxes and other amounts owing for the Goods and Services (other than taxes as specified in paragraph 15 below) and indemnify Buyer from all claims and liabilities arising from Seller’s failure to do so. Seller represents and warrants that it is not a non-resident of Canada for purposes of the Income Tax Act. Buyer shall be able to backcharge or set-off amounts owing to Seller pursuant to this Contract for amounts incurred by Buyer as a result of any breach of or default under this Purchase Order by Seller, and the prices stipulated herein, as claimed in any Seller invoice, are subject to deduction for charges, losses or damages due to outage, imperfections or defects in Goods and/or Services or non-compliance with sample, embodied or implied specifications, or Delivery Date(s).
4. Title: Unless otherwise designated on the face hereof, title and risk of loss to all Goods sold hereunder shall pass to Buyer upon acceptance F.O.B. receipt point(s) designated on the face hereof. Notwithstanding the forgoing, prior to delivery of Goods Buyer reserves a security interest in and shall acquire title to such Goods to the extent paid for, and Seller will execute such documents of acknowledgment as are requested by Buyer. All drawings provided hereunder shall be the property of Buyer for Buyer’s use free of charge regardless of any notation to the contrary on such drawings. Seller warrants title free and clear of all taxes, liens or other encumbrances whatsoever. Prior to acceptance and payment, Buyer shall have the right to inspect and test the Goods upon arrival of the Goods at the receipt point(s) to determine whether the Goods conform to the specifications of this Purchase Order. Use of a portion of the Goods for the purpose of testing shall not constitute an acceptance of the Goods.
5. Force Majeure: Neither party shall be liable for delays caused by events or conditions beyond such party’s reasonable control, which do not arise by the reason of the negligence, default, or other act or omission of fault of such party, and which such party could not reasonably foresee, prevent or overcome, provided notice thereof is given to the other party as soon as practicable. Provided the foregoing requirements have been met, such events or conditions include: (a) acts of God, including epidemics, landslides, earthquakes, floods, or natural disasters; (b) strikes; (c) acts of the public enemy, including wars which are either declared or undeclared, terrorism, blockades and insurrections; (d) the refusal of or delay in obtaining any necessary applicable permits required to provide the Goods and Services or perform this Purchase Order provided that the party claiming such relief has acted in a timely and reasonable manner in endeavoring to secure them; (e) any act or failure to act by federal or provincial governments or any applicable authority responsible for the Goods and Services. All such conditions preventing performance shall be remedied as soon as reasonably possible, except that the settlement of strikes shall be at the discretion of the party so affected. Buyer reserves the right to cancel this Purchase Order should such delays by Seller, in Buyer’s sole judgment, adversely affect Buyer, time being of the essence to this agreement. Notwithstanding the foregoing, the following events and conditions shall not entitle the party affected thereby to relief pursuant to this paragraph: (f) a lack of funds or inability to pay amounts arising in the performance of this Purchase Order for any reason whatsoever or an inability to use available funds; (g) the default or delay of any contractor of, or contractor to, a party (except where constituting, caused by or arising out of an event or circumstance which satisfies the requirements of (a) to (e) above); (h) except in the circumstances described in (b) above, shortages or non-availability of labour, accommodation, materials, supplies or other resources; and (i) seasonal conditions or weather, including the seasonal conditions of any access routes to the specified delivery location(s).
6. Services: In the event this Purchase Order includes any Services to be performed by Seller, including Seller’s employees, contractors, agents or resellers, upon the premises of Buyer or that of Buyer’s customers, Seller shall indemnify, defend and hold harmless Buyer, its employees, contractors, agents, resellers and its customers, and each of them, from and against any and all claims, demands, lawsuits, damages, losses and expenses, including court costs and reasonable attorney’s fees for injury (including death) to Seller’s personnel , including Seller’s employees, contractors, agents or resellers, or loss or damage to Seller’s, including Seller’s employees, contractors, agents or resellers, property and equipment, regardless of whether such injury, death, loss or damage shall result in whole or in part from the negligence of any of the indemnitees or liability resulting from the application of doctrines of strict liability or statutory fault, or the unseaworthiness of any vessel owned, chartered or operated by any of the indemnitees.
7. Warranty: Seller warrants to Buyer, its contractors, agents, resellers and customers that the products sold by Seller hereunder will be new, meet the specifications, drawings or descriptions on the face hereof or on attached specification sheets (which are incorporated herein by reference), and will be of good and merchantable quality and will be fit for Buyer’s intended purposes if known to Seller and for their ordinary intended purpose, free of defects or deficiencies in design, material and workmanship. Seller warrants that the products will be produced, sold and delivered in compliance with all applicable laws, rules, and regulations. Seller shall promptly, at Buyer’s option, repair, replace or re-perform, at Seller’s sole cost and expense, any Goods and/or Services that do not conform to the foregoing warranty.
8. Laws: This agreement shall be construed in accordance with the laws of Canada, Province of Alberta, without regard to its rules on conflict of laws.
9. Notice: All notices hereunder shall be deemed given when delivered in writing personally or by courier, or sent by postal mail, electronic transmission, or telephone facsimile to Buyer or to Seller at the address set forth in this agreement.
10. Assignment: This agreement shall extend to and be binding upon the parties hereto, their successors, and assigns, provided, however, that neither party shall assign or subcontract this agreement without the written consent of the other party.
11. Intellectual Property Rights: As between the parties, each party will at all times be and remain the sole and exclusive owner of its own intellectual property existing as of the effective date of this Purchase Order. Other than as may be required for the performance of this Purchase Order (including the provision of the Goods and Services) or as expressly provided in this paragraph 11, nothing in this Contract shall be construed as granting the Buyer or the Seller any license or other right to use any intellectual or other property that the other may now or hereafter own, possess, or in which it may hold licensing rights. The Parties acknowledge and agree that, except to the extent otherwise provided herein, any intellectual property developed, created or conceived by the Seller during the course of, or in connection with, Seller’s performance of this Purchase Order shall be the property of and owned by the Seller.
To the extent that any element or elements of Seller’s intellectual property is delivered to Buyer as part of the Goods and/or Services, Buyer, its customers, contractors, agents, and resellers, are hereby granted an irrevocable, non-exclusive, royalty-free, perpetual, fully paid up right and licence to use such element or elements of the Seller’s intellectual property in connection with the construction, installation, evaluation, testing, use, operation, maintenance, modification, upgrading, rebuilding, retrofitting or refurbishment of the Goods and/or Services in perpetuity and at no additional cost. Seller, its heirs, successors, assigns and legal representatives, shall forever defend, indemnify and save harmless the Buyer, its affiliates, its customers, contractors, agents, resellers, and customers against all claims, demands, lawsuits, judgments, damages, losses, and expenses including court costs, attorney’s fees and other liabilities, demands or losses in any manner arising out of alleged infringement of any intellectual property or other right because of their possession, use or sale of the subject matter to which this agreement relates. Seller shall be promptly notified of the bringing of said suits. Seller shall have the right to be represented in the defense thereof by counsel of its own selection and at its own expense.
12. Non-Waiver: Waiver of any breach or failure to enforce any of the terms or conditions of this agreement or course of conduct at any time shall not limit or waive either party’s rights thereafter to enforce or compel strict compliance with every term and condition of this agreement.
13. Confidentiality: Seller shall maintain in confidence all information provided by Buyer, including, but not limited to, this Purchase Order, the item(s) ordered, quality, specifications and price, and such information shall not be disclosed by Seller to any third party except where such disclosure is necessary for the completion of the Purchase Order, unless permission is first obtained in writing from Buyer.
14. Audit: Except for firm fixed price orders, Buyer may, upon its request, audit any and all records of Seller relating to Goods and Services provided hereunder, provided, however, Seller shall have the right to exclude any trade secrets, formulas, or processes from such inspection. Seller further agrees to maintain its books and records relating to Goods and Services provided hereunder for a period of two (2) years from the date such Goods and Services were provided and to make such books and records available to Buyer at any time or times within the two year period. Seller must refund to Buyer any overpayment disclosed by any aforementioned audit, and Buyer must pay Seller the amount of any underpayment discovered by such audit, within thirty (30) days of such finding.
15. Taxes: Prices quoted do not include any goods and services tax (GST) payable pursuant to the Excise Tax Act (Canada), or other applicable state or local sales or use tax. Any such taxes which Seller is obligated to collect shall be added to the invoice as a separate charge to be paid by the Buyer.
16. Conflict of Interest and Ethics:
16.1 Seller warrants that it has not given nor received any commissions, payments, gifts, kickbacks, lavish or extensive entertainment or other things of value to or from any employee or agent of the Buyer or any third party in connection with this Purchase Order and acknowledges that the giving or receiving of any such payments, gifts, entertainments or other things of value is strictly in violation of the Buyer’s corporate policy and may result in the cancellation of this Purchase Order and all future orders. Seller shall notify the Buyer’s security department of any such solicitation by any of the Buyer’s employees, agents or any third party.
16.2 Seller acknowledges that the Buyer has entered into this Purchase Order based upon various factors, including, without limitation, the reputation of Seller. Seller hereby represents and warrants to Buyer that Seller will not violate the United States Foreign Corrupt Practices Act, Canada’s Corruption of Foreign Public Officials Act, or any similar anti-corruption legislation applicable to Seller’s performance of this Purchase Order. Seller acknowledges that it has received and reviewed a copy of the Buyer’ code or policies of business conduct and agrees that the Buyer may conduct background checks of Seller’s personnel and their respective shareholders without further notice to Seller.
16.3 Seller hereby certifies that it has not paid, nor offered or agreed to pay, nor has caused to be paid nor offered or agreed to pay, nor has caused to be paid, or offered or agreed to be paid, directly or indirectly, in respect of this Purchase Order, any political contributions, fees or commissions to any governmental employee or representative. Seller further certifies that it will not, directly or indirectly, in connection with this Purchase Order and the business resulting therefrom, offer, pay, promise to pay, or authorize the giving of money or anything of value to any government official or representative, to any political person, while knowing or being aware of a high probability that all or a portion of such money or thing of value will be offered, given or promised, directly or indirectly to any government official, to any political party or official thereof, or to any candidate to political office for the purpose of:
(a) influencing any act or decision of such official, political party, party official, or candidate in his or its official capacity, including inducing such official to do or omit to do any act in violation of the lawful duty of such official; or
(b) inducing such official, political party, party official or candidate to use his or its influence with the government of instrumentality thereof or to affect or influence any act or decision of such government or instrumentality, in order to assist the Buyer or the Seller in securing an improper advantage or in obtaining or retaining business for or with, or directing business to any third party.
Seller agrees that if subsequent developments cause the certifications and information reported herein to be no longer accurate or complete, the Seller will immediately so advise the Buyer. Seller further agrees to provide additional certifications regarding compliance with laws and the Buyer’s policies as the Buyer may request from time to time. Seller agrees that the Buyer may conduct background checks of the Seller’s personnel and its shareholders from time to time and without notice to the Seller. Seller represents and warrants that neither the Seller nor any of its personnel nor any other person or entity acting on behalf of any of the aforementioned (i) is, or is a spouse, sibling, parent, grandparent, grandchild, son, daughter, parent-in-law or sibling-in-law of, an official of the country in which work is to be performed; or (ii) is an officer, director, investor, shareholder, or otherwise holds a direct or indirect beneficial interest in any business, joint venture, partnership, or enterprise (“Related Business”) with any official of the country in which work is to be performed and that no portion or amount of any payment received or to be received by the Seller under or in connection with any contract shall be paid to or for the benefit of, directly or indirectly, any Related Business.
17. Hazardous Material: Upon acceptance of this Purchase Order for ultimate shipment by any mode of transportation, the Seller certifies that the contents of the shipment are described by proper shipping name and are classified, packed, marked, labeled, and in proper condition for carriage by the selected mode of transportation according to applicable national government laws and regulations, and for international shipment with the current IATA/ICAO/IMCO Restricted Articles Regulations, and agrees to defend and indemnify Buyer against any violations of these laws regulations.
18. Commercial Invoice: Invoices shall be typewritten and shall provide the following: (a) invoice vendee; (b) full description of the Goods and/or Services and Buyer’s Purchase Order number; (c) item numbers opposite each item of Goods and/or Services in the same numerical sequences as this Purchase Order; (d) quantity of Goods and/or Services, pricing (including unit prices), extensions and total F.O.B. value; (e) country of origin; and (f) Seller’s GST registration number.
19. Cancellation and Termination. This Purchase Order may be cancelled or terminated as follows:
(a) Buyer may cancel this Purchase Order prior to Seller’s written acceptance hereof without incurring any liability to Seller therefore.
(b) Buyer may, after Seller’s written acceptance hereof, cancel or terminate this Purchase Order, in whole or in part, and without incurring any liability to Seller therefore, (i) if Seller fails to deliver all of the Goods in conformance with this Purchase Order and in the quantities and qualities specified by the Delivery Date(s), time of performance being of the essence,
(ii) if Seller fails to perform the Services in accordance with the terms of this Purchase Order,
(iii) if Seller fails to comply with any term or condition herein, or (iv) if proceedings are instituted under bankruptcy, reorganization or insolvency laws by or against either party hereto or there is an appointment of a receiver or trustee or a general assignment for the benefit of creditors of either party hereto.
(c) Buyer may, after Seller’s written acceptance of this Purchase Order, cancel or terminate this Purchase Order, in whole or in part, for any other reason, in which event Seller shall be entitled to a reasonable cancellation charge equal to actual costs incurred by Seller prior to such cancellation or termination in respect of that portion of the Services performed and that portion of the Goods delivered prior to cancellation or termination. In no event shall Seller be entitled to be paid any amount for any Goods not yet delivered or Services not yet performed.
20. Invoicing: Buyer will specify which of the following methods Seller must use in submitting this invoice: (a) Postal Mail; (b) e-mail (c) SAP Ariba Supplier Portal, or (d) electronic data interface (EDI). Buyer’s time frame for issuing payment, including where discounts are offered by Seller for expedited payment (e.g., 2% net 10 days), will begin when Buyer receives the invoice via the specified invoicing method. Buyer shall pay all undisputed amounts specified in such invoice within sixty (60) calendar days of receipt of such invoice. Failure to submit invoices via the specified invoicing method will result in delayed payment or refusal to pay for any and all Goods and/or Services on this Purchase Order. No amounts shall be considered due and owing by Buyer if subject to a bona fide dispute.
21. Term and Delay: Time is of the essence herein with respect to delivery of the Goods and completion of the Services. The Goods shall be delivered by the Delivery Date(s) and the Services shall be completed in accordance with the time-periods specified herein. Seller shall provide Buyer with written notice if, at any time during the performance of this Purchase Order, Seller believes it will be unable to provide the Goods and Services in accordance with the time-periods specified in this Purchase Order. Seller shall specify the reasons for such delay. Such written notice shall be promptly provided to Buyer, but no later than five (5) calendar days after Seller becomes aware of such delay. Buyer shall have the right, at any time, to request Seller to take action, such as to reallocate resources, to work overtime or extra shifts, or to provide such additional labour, equipment or materials or cooperate with a third party, such that Seller’s delivery of the Goods and completion of the Services is accelerated to achieve the Delivery Date(s) and required time periods for completion. If such actions are required due to Seller-caused delay in the performance of this Purchase Order not otherwise excused pursuant to paragraph 5 above, all costs and expenses to the extent related thereto shall be for Seller’s account.
22. Indemnity: Seller shall be liable for and indemnify, defend and hold Buyer, its parents, subsidiaries, affiliates, and customers, and its and their employees, contractors of any tier, agents, and resellers harmless from and against any and all claims, demands, lawsuits, judgments, damages, losses and/or expenses, including court costs and reasonable attorney’s fees, which are based in whole or part upon breach of this Purchase Order, including Seller’s warranties, defects or deficiencies in Seller’s Goods provided or Services performed, by Seller or its employees, contractors, agents or resellers, or Seller’s negligence including the negligence of Seller’s employees, contractors, agents or resellers, including without limitation, claims, suits or judgments for personal injury, including death, or property damage arising out of or relating directly or indirectly to this Purchase Order regardless of whether such injury, death, loss or damage shall result in part from the negligence of any of the indemnitees or liability resulting from the application of doctrines of strict liability or statutory fault or the unseaworthiness of any vessel owned, chartered or operated by any of the indemnitees.
23. Insurance: Seller shall, without limiting its obligations or liabilities herein, obtain and maintain during the term of this Purchase Order, at Seller’s sole cost and expense, reasonable insurance coverage, including the following minimum insurance coverage and such other insurance as may be required from time to time in the course of providing the Goods and Services:
(a) Workers Compensation covering all personnel engaged in the performance of this Purchase Order in accordance with the statutory requirements of the jurisdiction in which this Purchase Order is performed;
(b) Commercial General Liability Insurance, on a per occurrence basis, including contractual liability and products liability coverage, and including, without limitation, insurance for the indemnity agreements set forth in this Purchase Order, with limits of not less than (CAD) $5 million in the aggregate. The Commercial General Liability Insurance must also include a contractual liability clause, a cross liability and severability of interests clause, a Buyer protective clause, broad form property damage coverage, non-owned & hired automobile liability coverage, Employers Liability coverage (or Contingent Employers Liability in the event Seller can evidence Canadian Statutory Workers Compensation), personal & advertising injury coverage, products and completed operations coverage and sudden & accidental pollution liability coverage;
(c) Automobile Liability insurance in compliance with the statutory requirements of the jurisdiction(s) in which the Purchase Order, or any portion thereof, is performed for all owned and leased automobiles, with a combined single limit of not less than CAD$2 million per accident or occurrence;
(d) Umbrella or Excess Liability insurance may be used to evidence the limit requirements for each of the above-mentioned Commercial General Liability and Automobile Liability insurance policies;
(e) Contractors Equipment insurance for a limit equal to or greater than the value of the Seller’s equipment under the Seller’s care, custody and control while the Purchase Order, or any portion thereof, is performed;
(f) All Risk Property Insurance for a limit equal to or greater than the value of the Seller’s property under the Seller’s care, custody and control while the Purchase Order, or any portion thereof, is performed;
(g) if this Purchase Order involves or includes Seller providing or performing design, engineering, consulting, or any professional services, Professional Liability insurance with a combined single limit of not less than CAD$1 million per claim; and
(h) if this Purchase Order involves or includes Seller’s use of any owned or non-owned aircraft or watercraft, Seller agrees to provide evidence of coverage for CAD$10 million per occurrence with respect to applicable owned or non-owned aircraft or watercraft.
Seller shall ensure Buyer as well as Buyer’s parent, subsidiaries, affiliates, directors, officers and employees are named as additional insureds under the insurance required herein (save and except for Worker’s Compensation coverage carried by Seller) and shall ensure that such policies of insurance contain a waiver of subrogation in favour of Buyer as well as Buyer’s parent, subsidiaries, affiliates, directors, officers and employees. Seller shall deliver to Buyer no later than ten (10) calendar days after the date of this Purchase Order but in any event prior to Seller commencing performance hereunder, certificates of insurance as evidence that policies providing such coverage and minimum limits of insurance are in full force and effect. Certificates shall be issued in a form acceptable to Buyer, and provide that, in the event of cancellation or termination of said policies of insurance, the Buyer shall be given not less than thirty (30) calendar days’ advance written notice. All required insurance will be maintained with insurance companies having a minimum A.M. Best rating of A- and licensed to underwrite insurance in the applicable jurisdiction.
24. Liens and Builders Lien Holdback: All Goods and Services shall be free and clear of liens and other encumbrances. Seller shall promptly pay all debts incurred by Seller for labour, services, equipment, materials and supplies used in the performance of the Purchase Order. Seller shall forthwith remove any lien which may be placed against any Goods and Services, Buyer’s site or property of Buyer. Seller shall not be entitled to receive payment from Buyer at any time any lien or encumbrance is registered against any Goods or Services or Buyer’s or its customer’ sites or property. If any lien or encumbrance is not removed within ten (10) days after Seller receives notice of such lien or encumbrance, Buyer may take steps to remove or satisfy such lien or encumbrance and Seller shall immediately reimburse Buyer for all costs and expenses incurred by Buyer (including legal fees on a solicitor, client basis) removing or satisfying such lien or encumbrance. Buyer reserves the right to retain a lien holdback, if required under the applicable laws, on all payments for the Goods and Services provided hereunder in accordance with such applicable laws.
(a) Seller is an independent contractor and, unless authorized by Buyer in writing, shall not hold itself out as Buyer’s agent or representative.
(b) Seller shall obtain and maintain all permits, licenses and/or regulatory requirements or approvals which may be required to authorize it to provide the Goods and Services or otherwise satisfy its obligations pursuant to this Purchase Order.
(c) The invalidity or unenforceability of any provision of this Purchase Order shall not affect the validity or enforceability of any other provision of this Purchase Order.
(d) The rights and remedies provided by this Purchase Order are cumulative and are not exclusive of any rights or remedies provided in law, equity or otherwise and shall extend to Buyer, its successors and assigns.
(e) The provisions contained in this Purchase Order pertaining to confidentiality obligations, audit, warranties and indemnities shall survive termination and expiry of this Purchase Order for the benefit of the party to whom they are given. In addition, the expiry or termination of this Purchase Order does not discharge or release either party from any liability or obligation accrued at the time of such expiry or termination or continuing beyond or arising out of such expiry or termination.
(f) This Purchase Order may be executed and delivered by the parties in counterparts and by facsimile or other electronic means and when a counterpart has been executed and delivered by each of the parties, by facsimile, electronic copy or otherwise, all such counterparts, facsimiles and electronic copy shall together constitute one agreement.
(g) The parties hereto certify that they have been represented and/or have had the opportunity to be represented by counsel in the negotiation and formulation of this Purchase Order. No provision in this Purchase Order shall be interpreted for or against any party because that party or its legal counsel drafted such provision, and the contra proferentum rule of construction shall have no application in the interpretation of the Purchase Order.