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Terms and Conditions of Purchase
These Terms and Conditions of Purchase (these “Conditions”) shall apply to every purchase order issued by Laurentide Controls Ltd. (the “Purchaser”) to the seller (the “Seller”) with respect to the purchase of any goods (the “Goods”) and/or provision of services (the “Services”) (such provision of Goods and/or Services shall collectively be called the “Work”) from Seller. The purchase order to which these Conditions are attached, and in which Purchaser has requested Goods and/or Services from Seller, shall be hereinafter designated the “Purchase Order”, and the terms thereof are incorporated herein, as it recited at length. Seller agrees to supply and deliver the Goods and/or to perform the Services, as applicable, pursuant to the Purchaser Order and on the Conditions set out herein.
DEEMED CONSENT. Seller will be deemed to have assented to all Conditions contained herein if any part of the goods and/or services covered by the Purchase Order is shipped or an invoice is presented in connection with the said goods and/or services and each delivery shall be deemed to be only upon the Conditions contained in the Purchase Order.
TRANSPORTATION. Unless otherwise stipulated in the Purchase Order, the Goods shall be shipped "FOB prepaid to destination". Title to the Goods shall pass to Purchaser only upon delivery to Purchaser's specified end destination (the “Delivery Point”), regardless of FOB point. Delivery in advance of the Purchaser's specified shipping date, however, will not cause passage of title, transfer of risk of loss and/or establish FOB point. All Goods shall be properly packed for shipment. Seller shall comply with Purchaser's standard routing and shipping instructions issued by Purchaser. If such instructions are not attached hereto or have not been previously received, instructions must be requested from Purchaser prior to shipment of any Goods. Seller shall, at its own expense, be responsible for all packing, crating, loading, shipping and delivery of the Goods to the Delivery Point and provision of required documentation in accordance with the delivery terms, as per the terms of the Purchase Order, these Conditions or otherwise provided to Seller by Purchaser in writing. Transportation charges on goods delivered FOB destination must be prepaid by Seller and Purchaser shall not be responsible for any additional charges for freight, transportation, insurance, shipping, storage, handling, demurrage, duties, cartage, packaging or for any other matter, including any return shipment to Seller, unless provided for in the Purchase Order, these Conditions or otherwise agreed to in writing by Purchaser. No charges for unauthorized transportation will be allowed. Any unauthorized shipment, which will result in excess transportation charges, must be fully prepaid by Seller. Unauthorized transportation charges that are not prepaid by Seller will be offset by Purchaser against any amounts owing to Seller. Purchaser shall have no obligation to obtain insurance on the Goods while they are in transit from Seller to the Delivery Point. All items shall be properly identified with the Purchase Order’s number. Shipments containing dangerous goods ("Dangerous Goods") are subject to regulation under the applicable provisions of Transport Canada's Transportation of Dangerous Goods Regulations, Clear Language Edition ("TDG"), as amended from time to time. Seller is solely responsible for ensuring that all shipments containing Dangerous Goods are marked, labelled, and accompanied with required documentation, as required under the TDG Regulations and all other applicable governmental agreements, directives, laws and regulations.
HAZARDOUS SUBSTANCES. If any of the Goods ordered pursuant to the Purchase Order contain or may contain "hazardous substances" as defined by any applicable federal, provincial or local law, rule or regulation, Seller shall (a) provide Purchaser with all reasonably necessary documentation to verify the material composition, on a substance by substance basis, including the quantity used for each substance, of any Goods that contain or may contain hazardous substances, and/or of any process used to make, assemble, use, maintain or repair any such Goods, or (b) provide Purchaser with all reasonably necessary documentation to verify that the Goods and/or any process used to make, assemble, use, maintain or repair the Goods, do not contain, and the Services do not require the use of, any particular hazardous substances, as specified by Purchaser. Seller shall provide at the time of delivery all required notices and information, including without limitation all Material Safety Data Sheets in approved form, in English and in French. Seller 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. When the Purchase Order or the specifications referred to herein requires documentation or certification, this requirement is a material requirement of the Purchase Order; Seller's failure to provide such information prior to or at the time of delivery may result in the withholding of payment until such is provided.
CERTIFICATES OF ORIGIN AND CUSTOMS DOCUMENTATION. Seller accepts all responsibility for the information appearing on the certificate of origin, letter or affidavits. By accepting the Purchase Order, Seller accepts full responsibility regarding the completeness, accuracy and requirements of the corresponding certificate of origin and all other customs documentation provided to Purchaser.
DELIVERY DATE. Goods shall be delivered, and Services performed, by the applicable delivery date shown on the Purchase Order (the “Delivery Date”). Seller must notify Purchaser if Seller is likely to be unable to meet the Delivery Date. At any time prior to the Delivery Date, Purchaser may, upon reasonable period of notice to Seller, cancel or change the Purchase Order, or any portion thereof, for any reasonable reason, including, without limitation, for the convenience of Purchaser’s customer request or due to failure of Seller to comply with the Purchase Order or with these Conditions, unless otherwise noted.
Purchaser may, by written notice to Seller, at any time and from time to time, make requests, give Seller instructions or directions in respect of the changes to delivery of Goods and/or Services through alterations, additions, deletions or an acceleration. No such request given by Purchaser shall be effective unless and until formalized by means of a change order, or otherwise given or confirmed in writing by Purchaser. If Seller considers that a such a request justifies any changes to the Purchase Price and/or to the Delivery Date, it shall notify Purchaser of same within ten (10) Days from the date of receipt of such request and prior to implementing such request. Should Seller fail to so notify Purchaser within ten (10) Days from the receipt of a request, or should Seller commence implementing a request before giving such notice to Purchaser, or should Seller act on the basis of a request given orally, Seller shall be deemed to have waived any right it may have to claim relief or compensation pursuant to such request.
DELIVERY SCHEDULE. Time is of the essence in the fulfillment of the Purchase Order. The Purchase Order is subject to cancellation if not shipped at the Delivery Date, subject to Purchaser’s other rights and recourses provided for herein. Purchaser reserves the right to refuse deliveries made in advance of the Delivery Date. Goods shipped after the time specified may be returned at Seller’s expense for full credit. Retention of all or any part of such Goods shall not be considered acceptance of same. Acceptance of such merchandise shall not be deemed a waiver of Purchaser's right to hold Seller liable for any loss or damage resulting therefrom, nor shall it act as a modification of Seller's obligation to make future deliveries in accordance with the delivery schedule. Purchaser shall be reimbursed in full for all merchandise returned. In addition thereto, Purchaser shall have the privilege, if shipment is not made on time, to purchase similar merchandise in the open market in such quantities as they may find necessary not exceeding the amount called for in this Order and hold Seller responsible for the difference, if any, between the price so paid and the Order price.
INSPECTION, ACCEPTANCE & REJECTION. All shipments of Goods and performance of Services shall be subject to Purchaser’s right of inspection. Purchaser shall have a period of ninety (90) days (the “Inspection Period”) following delivery of the Goods at the Delivery Point or performance of the Services to undertake such inspection, and upon such inspection Purchaser shall either accept the Goods or Services or reject them. Transfer of title to Purchaser of the Goods shall not constitute Purchaser’s acceptance of those Goods. Purchaser shall have the right to reject any Goods that are delivered in excess of the quantity requested in the Purchase Order, as well as Goods and/or Services furnished that are found at any time to be defective in material or workmanship or otherwise not in conformity with the requirements of the Purchaser Order mor these Conditions, the whole as Seller’s expense. Such Goods and/or Services shall not be replaced or continued without the written authorization of Purchaser. Purchaser may accept, without prejudice, a portion of any shipment of Goods, and, at its option, have Seller repair or replace at its expense any non-conforming portion of such shipment. Items rejected shall be removed promptly by Seller at its risk and expense. Purchaser’s inspection of Goods and/or Services shall not be construed as supervision of the carrying out of the Purchaser Order and shall not render Purchaser responsible for Seller’s acts or omissions, or otherwise affect Purchaser’s rights herein.
PURCHASE PRICE. The purchase price (the “Purchase Price”) for the Goods and/or Services will be set out in the Purchase Order. No increase or other change to the Purchase Price shall be binding or effective unless expressly set out in writing and agreed to in writing by Purchaser. Seller warrants that the prices of the goods and/or services covered by this Order are not in excess of Seller's lowest lawful prices in effect on the date of this Order for comparable quantities of similar goods and/or services. If cash discounts for early payment are offered by Seller, the period of time agreed upon as constituting "early payment" shall begin with the later of the invoice date or receipt of merchandise. Unless freight or other charges are itemized, the discount will be taken on the full amount of the invoice. Purchaser may provide written notice requesting that Seller delay shipment of Goods or the performance of Services without incurring any additional costs or having the Purchase Price increased in any manner.
PAYMENT. Upon submission of proper invoices, Purchaser shall pay the Purchase Price for Goods delivered and accepted and/or Services rendered and accepted; however, payment may be withheld or portions thereof deducted or set-offs made against any amount owing to Seller if Seller is not performing work in accordance with the provisions of the Purchase Order and/or in accordance with the Conditions or if amounts are disputed by Purchaser in good faith, the whole until the parties reach an agreement with respect to such disputed amounts; such withholding of disputed amounts shall not be deemed a breach of the Purchase Order or these Conditions, nor shall any interest be charged on such amounts. All payments are to be made net 60 days from the date of receipt of the invoice, unless otherwise agreed. Minimum charges will not be honored unless specifically agreed to prior to shipment of Goods.
AUDIT. Seller shall maintain records in the ordinary course of business in accordance with generally acceptable accounting principles to accurately capture and reflect purchase and sale transactions arising from the Purchase Order. Seller will allow Purchaser, or its agent, to audit such records as well as Seller’s facilities in order to evaluate compliance with the Purchase Order. Such audits shall be conducted at reasonable times and with reasonable notice.
DEFAULT. Seller shall be deemed to have committed an act of default in any one (1) of the following situations: (i) if Seller fails to perform any of its obligations set out in the Purchase Order or in these Conditions; (ii) if Seller becomes insolvent or makes a general assignment for the benefit of its creditors, or if a petition under any bankruptcy or similar statute is filed by or against Seller; and in any of these circumstances does not cure such failure within a period of five (5) days following receipt of a written notice from Purchaser to such effect. Should Seller commit an act of default, Purchaser shall have the option, upon a simple written notice, to terminate the Purchaser Order, in whole or in part, and upon such termination Purchaser may procure, upon such terms as it shall deem appropriate, goods or services similar to those so terminated, in which case Seller shall continue performance of this Order to the extent not terminated and shall be liable to Purchaser for any excess costs for such similar supplies or services. Upon such termination, Seller shall immediately reimburse Purchaser for all sums of money, including deposits, paid by Purchaser net of the purchase price relating to the Goods and/or Services delivered or procured prior to date of termination, and Purchaser shall have no further liability whatsoever to Seller save for payment for such Goods and/or Services delivered or procured prior to termination. As an alternate remedy, and in lieu of termination, Purchaser may, at its sole discretion, elect to (a) extend the Delivery Date, and/or (b) waive any other deficiencies in Seller's performance, in which case an equitable reduction in the purchase price of the Purchase Order shall be granted. In any case, Seller shall be liable towards Purchaser for all damages incurred by Purchaser as a result of an act of default committed by Seller, notwithstanding that such damages may without any fault or negligence on the part of Seller. The rights and remedies of Purchaser provided for in this clause shall not be exclusive and are in addition to any other rights and remedies provided for in the Purchase Order, these Conditions and by law.
TERMINATION BY PURCHASER: Purchaser expressly reserves the right to revoke the Purchase Order at any time prior to receipt of a notice of acceptance from Seller. Following receipt of such notice of acceptance from Seller, Purchaser shall have the right to terminate or suspend the Purchase Order in whole or in part at any time, and from time to time, on a two (2) days’ prior written notice, even if Seller is not in breach of any obligation hereunder. Upon receipt of a notice of termination, Seller shall immediately discontinue performance and shall comply with Purchaser's instructions concerning disposition of completed and partially completed items, work in progress and materials acquired pursuant to the Purchase Order. In the event of such termination, Seller shall be paid an amount in settlement to be mutually agreed upon by both parties which shall cover Seller's reasonable costs of performance incurred prior to termination in connection with the items for which the Purchase Order is terminated plus a reasonable profit based upon such costs. However, said payment shall not exceed the Purchase Price. In no event shall Seller be entitled to recover incidental, special, or consequential damages. Seller shall advise Purchaser, in writing, of Seller's claim, if any, for termination costs within ten (10) days after receipt of the notice of termination.
INDEMNIFICATION. To the fullest extent permitted by law, Seller agrees to indemnify, hold harmless, and defend Purchaser and its parent and affiliated companies, their customers, directors, officers, employees, consultants, and agents, from and against any loss, fines, liability, damages, cost, expenses, suits, actions, claims and all other obligations and proceedings whatsoever, including and without limitation to: (a) all judgments rendered against, and all fines and penalties imposed upon Purchaser and any reasonable legal fees and any other cost of litigation out of injuries to persons, including death, loss or damage to property, caused by Seller, its employees, agents, subcontractors, or in any way attributable to the performance of the Purchase Order by Seller; (b) any claim that the Goods or Services infringe or violate the Intellectual Property Rights or other rights of any third party; (c) any intentional, wrongful, or negligent act or omission of Seller or any of its affiliates or subcontractors; (d) Seller’s breach of any of its obligations under the Purchase Order or these Conditions; (e) any liens or encumbrances relating to any Goods or Services. Seller’s obligation herein to indemnify Purchaser shall not apply to any liabilities due exclusively to Purchaser's negligence. The provisions of this section shall also apply to any third-party claims against Seller that are directly or indirectly related to the actions of Purchaser as noted in this section. Seller shall not settle any such suit or claim involving Purchaser without Purchaser’s prior written approval, which approval shall not be unreasonably withheld.
LIMITATION OF LIABILITY. EXCEPT FOR SELLER’S OBLIGATIONS AS PROVIDED FOR HEREIN, AND EXCEPT FOR DAMAGES THAT ARE THE RESULT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES BASED ON CONTRACT, TORT OR OTHER LEGAL THEORY, INCLUDING ANY LOST PROFITS, DATA, GOODWILL, OR BUSINESS OPPORTUNITY FOR ANY MATTER RELATING TO THE PURCHASE ORDER AND/OR THESE CONDITIONS.
PATENT, COPYRIGHT & INTELLECTUAL PROPERTY. Seller represents and warrants that neither the merchandise nor the sale thereof covered by this Order will infringe upon or violate any trademarks, patents, copyright, or other legal rights pertaining to intellectual property (collectively “Intellectual Property Rights”) of third parties. Seller agrees to indemnify and save Purchaser harmless from and against any and all claims, liability, loss, costs, attorneys' fees, expenses and damages due to or arising from any such alleged infringement or violation. All Intellectual Property Rights in and to the Goods that are delivered and accepted, and to the Services provided and accepted, shall vest in Purchaser free and clear of all liens and encumbrances on receipt of payment by Seller. To the extent that any of such Goods or Services contain any Intellectual Property Rights of Seller, Seller hereby grants to Purchaser a worldwide, royalty-free, non-exclusive, perpetual license to use, copy, modify and distribute such Intellectual Property Rights as part of the Purchase Order. Seller agrees to provide to Purchaser all assistance reasonably requested by Purchaser to perfect the rights described herein, including obtaining all assignments and waivers of moral rights necessary or appropriate to vest the entire right, title and interest in such materials in Purchaser and its successors and assigns. In the event that any Goods provided by Seller to Purchaser are subject to a claim or allegation of infringement of Intellectual Property Rights of a third party, Seller shall, at its own option and expense, without prejudice to any other right or remedy of Purchaser (including Purchaser’s indemnification rights provided for herein), promptly provide Purchaser with a commercially reasonable alternative, including the procurement for Purchaser of the right to continue using the Goods in question, the replacement of such Goods with a non-infringing alternative satisfactory to Purchaser, or the modification of such Goods (without affecting functionality) to render them non-infringing.
TAXES. Unless prohibited by law, Seller shall pay all federal, provincial, or local tax, transportation tax, or other tax which is required to be imposed upon the Goods and Services to be provided herein, or by reason of their sale or delivery.
WARRANTY. Seller warrants that it has clear title to all Goods furnished pursuant to the Purchase Order, which are being delivered free and clear of any liens, claims, security interests or other encumbrances. Seller further warrants that all such Goods shall (i) be free from defects in design, material and workmanship, (ii) conform to Seller's specifications, the requirements of these Conditions and the Purchase Order as well as approved sample or samples, if any, and (iii) shall be merchantable and fit for Purchaser's intended use. All Services will be executed (i) in a professional and workmanlike manner and in conformity with the highest industry standards and with all applicable laws, regulations, and codes, and (ii) in accordance with all specifications and all of Purchaser’s policies, guidelines, by-laws and codes of conduct applicable to Seller. Purchaser may object to any of Seller’s personnel engaged in the performance of Services who, in the reasonable opinion of Purchaser, are lacking in appropriate skills or qualifications, engage in misconduct, constitute a safety risk or hazard or are incompetent or negligent, and Seller shall promptly remove such personnel from the performance of any Services upon receipt of such notice, and shall not re-employ such removed personnel in connection with the Services without the prior written consent of Purchaser. Seller's warranty as set out in this section shall remain in effect for a minimum period of two (2) years after acceptance of any Goods and Services by Purchaser, or for such longer period of time as such Goods and/or Services are otherwise warranted by Seller and/or any applicable manufacturer, the whole of which shall not deemed to be exclusive but be in addition to Purchaser’s other rights under the terms hereof and at law or equity (the “Warranty Period”). Acceptance of the Goods and/or the Services by Purchaser shall not release or discharge Seller from liability for damages resulting from a breach of Seller's warranty as provided for herein. During the warranty period (as provided for herein), if Purchaser identifies a non-conformity, Purchaser shall notify Seller and shall direct Seller, at Seller’s sole cost and expense (including, but without limitation, all shipping, transportation and installation costs), to repair, correct, or refund the purchase price for that portion of the non-conforming Goods or Services. The warranty period (as provided for herein) will restart on the date that such non-conforming Goods or Services have been repaired or replaced, as the case may be. If Seller does not comply with this warranty, Purchaser may repair or correct the defective or nonconforming Goods or Services at Seller’s sole cost and expense.
INSURANCE: Seller shall, at its own expense, obtain and maintain in full force and effect, for the duration of the Work and the Warranty Period, the following insurance: (i) workers’ compensation coverage in the amount required by applicable statute and regulation; (ii) comprehensive general liability insurance having a minimum inclusive coverage limit including personal injury and property damage of at least $2,000,000; (iii) owned automobile liability insurance on all vehicles used in connection with the Work of at least $2,000,000 in respect of bodily injury (including passenger hazard) and property damage inclusive in any one accident; (iv) non-owned automobile liability insurance having a limit of at least $2,000,000 in respect of bodily injury (including passenger hazard) and property damage inclusive in any one accident. Such insurance shall be evidenced by a certificate of insurance naming Purchaser as an additional insured. In the event Seller performs services on Purchaser’s premises or the premises of Purchaser’s customer, Seller shall provide and shall require its subcontractors to provide proof of insurance in the form and amounts acceptable to Purchaser.
CONFIDENTIALITY: Seller shall safeguard and keep confidential any and all information relating to Purchaser obtained by it or provided to it by Purchaser in connection with the Purchase Order and shall use such information only for the purposes of carrying out the Work. The foregoing shall not apply to confidential information which (i) is in or enters the public domain other than by breach thereof, (ii) is obtained from a third party lawfully, (iii) is or has been independently generated by Seller, or (iv) is properly disclosed pursuant to a statutory obligation, the order of a court of competent jurisdiction or that of a competent regulated body. Confidential information is and shall remain the property of Purchaser and Seller shall not use such information for any purpose other than where strictly necessary for the provision of Goods and/or Services in accordance with the Purchase Order.
SAFETY: Seller shall fully comply with all safety rules, regulations, guidelines and policies of Purchaser, if any, which are part of these Conditions or otherwise. Seller acknowledges and agrees that it has full and sole responsibility for implementation, compliance and enforcement of all safety rules, regulations, and guidelines and that Purchaser’s safety rules, regulations, and policies, if any, do not in any way relieve Seller of such sole and full responsibility. Unless agreed in writing, Seller shall supply all health and safety equipment, or materials used in or required by any law, rule, regulation or guideline of any federal, provincial, territorial, state or local authority, agency, or association in the performance of the Services.
SUB-CONTRACTORS. Seller shall not sub-contract or delegate any of the Work, in whole or in part, except to sub-contractors previously approved in writing by Purchaser. Seller’s permitted assignment or subcontracting of its obligations pursuant to the Purchase Order and these Conditions, or any part thereof, will not release Seller of its obligations, and Seller will remain jointly and severally liable with the assignee or subcontractor for any obligations assigned or subcontracted.
ASSIGNMENT. Seller shall not assign the Purchase Order or any of its interest therein or any moneys to become due hereunder without first having obtained the written consent of Purchaser, which may be withheld in Purchaser's sole discretion. Purchaser may assign this Purchase Order and its therein (in whole or in part) to an affiliate or a person that is purchasing or has purchased all or substantially all of the assets of Purchaser.
COMPLIANCE WITH LAWS. Seller warrants that all goods provided hereunder have been produced, and all services performed, in compliance with applicable international, federal, provincial and local laws, ordinances, codes, rules, regulations, quality system standards, quality assurance requirements, including but not limited to to those pertaining to the manufacture, labeling, invoicing and sale of such goods or services, environmental protection, immigration, employment and occupational health and safety, including Transport Canada's Transportation of Dangerous Goods Regulations, Clear Language Edition, as amended from time to time and the Controlled Products Act.
FORCE MAJEURE: Neither Seller nor Purchaser shall be liable for the failure to perform its obligations under the Purchase Order or these Conditions to the extent that performance of such obligations is delayed or prevented due to causes beyond the reasonable control of said party, including, but not limited to, acts of God, war, revolution, civil commotion, blockade or embargo, any law, order, regulation, ordinance, or requirement of any government or its representative or legal body having jurisdiction, fires, floods, earthquake, elements of nature, pandemics, explosion, power failure, terrorism, acts of public enemies, or labor unrest such as strikes, slowdowns, picketing or boycotts, and other causes beyond the reasonable control of either party.
ENTIRE AGREEMENT: The Purchase Order and these Conditions constitute the entire agreement between the parties and contains all the agreements and conditions of sale pertaining to the subject matter set out herein and therein. No conditions other than the Conditions set forth herein and what is set out in the Purchase Order shall be binding upon Purchaser unless accepted in writing by Purchaser. There are no understandings, agreements or representations, whether express or implied, existing that are not specified in the Purchaser Order or in these Conditions. Any modification of the Purchase Order or of these Conditions must be set forth in a written instrument signed by Purchaser, failing which such modification will not be valid or binding. These Conditions shall take precedence over any of Seller’s conditions, whether set out in a quote, invoice, or anywhere else. All conditions contained in any prior proposal or subsequent acknowledgment of the Purchase Order which are different from or in addition to the Conditions or what is set out in the Purchase Order are hereby rejected and shall not be binding on Purchaser, notwithstanding Purchaser's act of accepting or paying for any delivery or similar act of Purchaser.
INDEPENDENT PARTIES. Seller is an independent contractor and the relationship between Purchaser and Seller under the Purchase Order does not constitute nor may it be construed as constituting a fiduciary relationship, a joint venture, contract of agency, partnership or employment. Supplier shall not represent or allow itself to be represented as an employee or agent of Purchaser.
GOVERNING LAW. This Agreement shall be governed by the laws of the Province of Quebec and the federal laws of Canada applicable therein. The parties irrevocably attorn to the jurisdiction of the courts sitting in the judicial district of Montreal (Quebec), which will have the exclusive jurisdiction over any matter arising out of this Agreement.
LANGUAGE. The parties expressly acknowledge requiring these Conditions, the Purchaser Order and all related documents to be drawn up in the English language. Les parties ont expressément demandé que les présentes Conditions, le Purchase Order ainsi que tous les documents qui s'y rattachent soient rédigés en anglais.
DEEMED CONSENT. Seller will be deemed to have assented to all Conditions contained herein if any part of the goods and/or services covered by the Purchase Order is shipped or an invoice is presented in connection with the said goods and/or services and each delivery shall be deemed to be only upon the Conditions contained in the Purchase Order.
TRANSPORTATION. Unless otherwise stipulated in the Purchase Order, the Goods shall be shipped "FOB prepaid to destination". Title to the Goods shall pass to Purchaser only upon delivery to Purchaser's specified end destination (the “Delivery Point”), regardless of FOB point. Delivery in advance of the Purchaser's specified shipping date, however, will not cause passage of title, transfer of risk of loss and/or establish FOB point. All Goods shall be properly packed for shipment. Seller shall comply with Purchaser's standard routing and shipping instructions issued by Purchaser. If such instructions are not attached hereto or have not been previously received, instructions must be requested from Purchaser prior to shipment of any Goods. Seller shall, at its own expense, be responsible for all packing, crating, loading, shipping and delivery of the Goods to the Delivery Point and provision of required documentation in accordance with the delivery terms, as per the terms of the Purchase Order, these Conditions or otherwise provided to Seller by Purchaser in writing. Transportation charges on goods delivered FOB destination must be prepaid by Seller and Purchaser shall not be responsible for any additional charges for freight, transportation, insurance, shipping, storage, handling, demurrage, duties, cartage, packaging or for any other matter, including any return shipment to Seller, unless provided for in the Purchase Order, these Conditions or otherwise agreed to in writing by Purchaser. No charges for unauthorized transportation will be allowed. Any unauthorized shipment, which will result in excess transportation charges, must be fully prepaid by Seller. Unauthorized transportation charges that are not prepaid by Seller will be offset by Purchaser against any amounts owing to Seller. Purchaser shall have no obligation to obtain insurance on the Goods while they are in transit from Seller to the Delivery Point. All items shall be properly identified with the Purchase Order’s number. Shipments containing dangerous goods ("Dangerous Goods") are subject to regulation under the applicable provisions of Transport Canada's Transportation of Dangerous Goods Regulations, Clear Language Edition ("TDG"), as amended from time to time. Seller is solely responsible for ensuring that all shipments containing Dangerous Goods are marked, labelled, and accompanied with required documentation, as required under the TDG Regulations and all other applicable governmental agreements, directives, laws and regulations.
HAZARDOUS SUBSTANCES. If any of the Goods ordered pursuant to the Purchase Order contain or may contain "hazardous substances" as defined by any applicable federal, provincial or local law, rule or regulation, Seller shall (a) provide Purchaser with all reasonably necessary documentation to verify the material composition, on a substance by substance basis, including the quantity used for each substance, of any Goods that contain or may contain hazardous substances, and/or of any process used to make, assemble, use, maintain or repair any such Goods, or (b) provide Purchaser with all reasonably necessary documentation to verify that the Goods and/or any process used to make, assemble, use, maintain or repair the Goods, do not contain, and the Services do not require the use of, any particular hazardous substances, as specified by Purchaser. Seller shall provide at the time of delivery all required notices and information, including without limitation all Material Safety Data Sheets in approved form, in English and in French. Seller 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. When the Purchase Order or the specifications referred to herein requires documentation or certification, this requirement is a material requirement of the Purchase Order; Seller's failure to provide such information prior to or at the time of delivery may result in the withholding of payment until such is provided.
CERTIFICATES OF ORIGIN AND CUSTOMS DOCUMENTATION. Seller accepts all responsibility for the information appearing on the certificate of origin, letter or affidavits. By accepting the Purchase Order, Seller accepts full responsibility regarding the completeness, accuracy and requirements of the corresponding certificate of origin and all other customs documentation provided to Purchaser.
DELIVERY DATE. Goods shall be delivered, and Services performed, by the applicable delivery date shown on the Purchase Order (the “Delivery Date”). Seller must notify Purchaser if Seller is likely to be unable to meet the Delivery Date. At any time prior to the Delivery Date, Purchaser may, upon reasonable period of notice to Seller, cancel or change the Purchase Order, or any portion thereof, for any reasonable reason, including, without limitation, for the convenience of Purchaser’s customer request or due to failure of Seller to comply with the Purchase Order or with these Conditions, unless otherwise noted.
Purchaser may, by written notice to Seller, at any time and from time to time, make requests, give Seller instructions or directions in respect of the changes to delivery of Goods and/or Services through alterations, additions, deletions or an acceleration. No such request given by Purchaser shall be effective unless and until formalized by means of a change order, or otherwise given or confirmed in writing by Purchaser. If Seller considers that a such a request justifies any changes to the Purchase Price and/or to the Delivery Date, it shall notify Purchaser of same within ten (10) Days from the date of receipt of such request and prior to implementing such request. Should Seller fail to so notify Purchaser within ten (10) Days from the receipt of a request, or should Seller commence implementing a request before giving such notice to Purchaser, or should Seller act on the basis of a request given orally, Seller shall be deemed to have waived any right it may have to claim relief or compensation pursuant to such request.
DELIVERY SCHEDULE. Time is of the essence in the fulfillment of the Purchase Order. The Purchase Order is subject to cancellation if not shipped at the Delivery Date, subject to Purchaser’s other rights and recourses provided for herein. Purchaser reserves the right to refuse deliveries made in advance of the Delivery Date. Goods shipped after the time specified may be returned at Seller’s expense for full credit. Retention of all or any part of such Goods shall not be considered acceptance of same. Acceptance of such merchandise shall not be deemed a waiver of Purchaser's right to hold Seller liable for any loss or damage resulting therefrom, nor shall it act as a modification of Seller's obligation to make future deliveries in accordance with the delivery schedule. Purchaser shall be reimbursed in full for all merchandise returned. In addition thereto, Purchaser shall have the privilege, if shipment is not made on time, to purchase similar merchandise in the open market in such quantities as they may find necessary not exceeding the amount called for in this Order and hold Seller responsible for the difference, if any, between the price so paid and the Order price.
INSPECTION, ACCEPTANCE & REJECTION. All shipments of Goods and performance of Services shall be subject to Purchaser’s right of inspection. Purchaser shall have a period of ninety (90) days (the “Inspection Period”) following delivery of the Goods at the Delivery Point or performance of the Services to undertake such inspection, and upon such inspection Purchaser shall either accept the Goods or Services or reject them. Transfer of title to Purchaser of the Goods shall not constitute Purchaser’s acceptance of those Goods. Purchaser shall have the right to reject any Goods that are delivered in excess of the quantity requested in the Purchase Order, as well as Goods and/or Services furnished that are found at any time to be defective in material or workmanship or otherwise not in conformity with the requirements of the Purchaser Order mor these Conditions, the whole as Seller’s expense. Such Goods and/or Services shall not be replaced or continued without the written authorization of Purchaser. Purchaser may accept, without prejudice, a portion of any shipment of Goods, and, at its option, have Seller repair or replace at its expense any non-conforming portion of such shipment. Items rejected shall be removed promptly by Seller at its risk and expense. Purchaser’s inspection of Goods and/or Services shall not be construed as supervision of the carrying out of the Purchaser Order and shall not render Purchaser responsible for Seller’s acts or omissions, or otherwise affect Purchaser’s rights herein.
PURCHASE PRICE. The purchase price (the “Purchase Price”) for the Goods and/or Services will be set out in the Purchase Order. No increase or other change to the Purchase Price shall be binding or effective unless expressly set out in writing and agreed to in writing by Purchaser. Seller warrants that the prices of the goods and/or services covered by this Order are not in excess of Seller's lowest lawful prices in effect on the date of this Order for comparable quantities of similar goods and/or services. If cash discounts for early payment are offered by Seller, the period of time agreed upon as constituting "early payment" shall begin with the later of the invoice date or receipt of merchandise. Unless freight or other charges are itemized, the discount will be taken on the full amount of the invoice. Purchaser may provide written notice requesting that Seller delay shipment of Goods or the performance of Services without incurring any additional costs or having the Purchase Price increased in any manner.
PAYMENT. Upon submission of proper invoices, Purchaser shall pay the Purchase Price for Goods delivered and accepted and/or Services rendered and accepted; however, payment may be withheld or portions thereof deducted or set-offs made against any amount owing to Seller if Seller is not performing work in accordance with the provisions of the Purchase Order and/or in accordance with the Conditions or if amounts are disputed by Purchaser in good faith, the whole until the parties reach an agreement with respect to such disputed amounts; such withholding of disputed amounts shall not be deemed a breach of the Purchase Order or these Conditions, nor shall any interest be charged on such amounts. All payments are to be made net 60 days from the date of receipt of the invoice, unless otherwise agreed. Minimum charges will not be honored unless specifically agreed to prior to shipment of Goods.
AUDIT. Seller shall maintain records in the ordinary course of business in accordance with generally acceptable accounting principles to accurately capture and reflect purchase and sale transactions arising from the Purchase Order. Seller will allow Purchaser, or its agent, to audit such records as well as Seller’s facilities in order to evaluate compliance with the Purchase Order. Such audits shall be conducted at reasonable times and with reasonable notice.
DEFAULT. Seller shall be deemed to have committed an act of default in any one (1) of the following situations: (i) if Seller fails to perform any of its obligations set out in the Purchase Order or in these Conditions; (ii) if Seller becomes insolvent or makes a general assignment for the benefit of its creditors, or if a petition under any bankruptcy or similar statute is filed by or against Seller; and in any of these circumstances does not cure such failure within a period of five (5) days following receipt of a written notice from Purchaser to such effect. Should Seller commit an act of default, Purchaser shall have the option, upon a simple written notice, to terminate the Purchaser Order, in whole or in part, and upon such termination Purchaser may procure, upon such terms as it shall deem appropriate, goods or services similar to those so terminated, in which case Seller shall continue performance of this Order to the extent not terminated and shall be liable to Purchaser for any excess costs for such similar supplies or services. Upon such termination, Seller shall immediately reimburse Purchaser for all sums of money, including deposits, paid by Purchaser net of the purchase price relating to the Goods and/or Services delivered or procured prior to date of termination, and Purchaser shall have no further liability whatsoever to Seller save for payment for such Goods and/or Services delivered or procured prior to termination. As an alternate remedy, and in lieu of termination, Purchaser may, at its sole discretion, elect to (a) extend the Delivery Date, and/or (b) waive any other deficiencies in Seller's performance, in which case an equitable reduction in the purchase price of the Purchase Order shall be granted. In any case, Seller shall be liable towards Purchaser for all damages incurred by Purchaser as a result of an act of default committed by Seller, notwithstanding that such damages may without any fault or negligence on the part of Seller. The rights and remedies of Purchaser provided for in this clause shall not be exclusive and are in addition to any other rights and remedies provided for in the Purchase Order, these Conditions and by law.
TERMINATION BY PURCHASER: Purchaser expressly reserves the right to revoke the Purchase Order at any time prior to receipt of a notice of acceptance from Seller. Following receipt of such notice of acceptance from Seller, Purchaser shall have the right to terminate or suspend the Purchase Order in whole or in part at any time, and from time to time, on a two (2) days’ prior written notice, even if Seller is not in breach of any obligation hereunder. Upon receipt of a notice of termination, Seller shall immediately discontinue performance and shall comply with Purchaser's instructions concerning disposition of completed and partially completed items, work in progress and materials acquired pursuant to the Purchase Order. In the event of such termination, Seller shall be paid an amount in settlement to be mutually agreed upon by both parties which shall cover Seller's reasonable costs of performance incurred prior to termination in connection with the items for which the Purchase Order is terminated plus a reasonable profit based upon such costs. However, said payment shall not exceed the Purchase Price. In no event shall Seller be entitled to recover incidental, special, or consequential damages. Seller shall advise Purchaser, in writing, of Seller's claim, if any, for termination costs within ten (10) days after receipt of the notice of termination.
INDEMNIFICATION. To the fullest extent permitted by law, Seller agrees to indemnify, hold harmless, and defend Purchaser and its parent and affiliated companies, their customers, directors, officers, employees, consultants, and agents, from and against any loss, fines, liability, damages, cost, expenses, suits, actions, claims and all other obligations and proceedings whatsoever, including and without limitation to: (a) all judgments rendered against, and all fines and penalties imposed upon Purchaser and any reasonable legal fees and any other cost of litigation out of injuries to persons, including death, loss or damage to property, caused by Seller, its employees, agents, subcontractors, or in any way attributable to the performance of the Purchase Order by Seller; (b) any claim that the Goods or Services infringe or violate the Intellectual Property Rights or other rights of any third party; (c) any intentional, wrongful, or negligent act or omission of Seller or any of its affiliates or subcontractors; (d) Seller’s breach of any of its obligations under the Purchase Order or these Conditions; (e) any liens or encumbrances relating to any Goods or Services. Seller’s obligation herein to indemnify Purchaser shall not apply to any liabilities due exclusively to Purchaser's negligence. The provisions of this section shall also apply to any third-party claims against Seller that are directly or indirectly related to the actions of Purchaser as noted in this section. Seller shall not settle any such suit or claim involving Purchaser without Purchaser’s prior written approval, which approval shall not be unreasonably withheld.
LIMITATION OF LIABILITY. EXCEPT FOR SELLER’S OBLIGATIONS AS PROVIDED FOR HEREIN, AND EXCEPT FOR DAMAGES THAT ARE THE RESULT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES BASED ON CONTRACT, TORT OR OTHER LEGAL THEORY, INCLUDING ANY LOST PROFITS, DATA, GOODWILL, OR BUSINESS OPPORTUNITY FOR ANY MATTER RELATING TO THE PURCHASE ORDER AND/OR THESE CONDITIONS.
PATENT, COPYRIGHT & INTELLECTUAL PROPERTY. Seller represents and warrants that neither the merchandise nor the sale thereof covered by this Order will infringe upon or violate any trademarks, patents, copyright, or other legal rights pertaining to intellectual property (collectively “Intellectual Property Rights”) of third parties. Seller agrees to indemnify and save Purchaser harmless from and against any and all claims, liability, loss, costs, attorneys' fees, expenses and damages due to or arising from any such alleged infringement or violation. All Intellectual Property Rights in and to the Goods that are delivered and accepted, and to the Services provided and accepted, shall vest in Purchaser free and clear of all liens and encumbrances on receipt of payment by Seller. To the extent that any of such Goods or Services contain any Intellectual Property Rights of Seller, Seller hereby grants to Purchaser a worldwide, royalty-free, non-exclusive, perpetual license to use, copy, modify and distribute such Intellectual Property Rights as part of the Purchase Order. Seller agrees to provide to Purchaser all assistance reasonably requested by Purchaser to perfect the rights described herein, including obtaining all assignments and waivers of moral rights necessary or appropriate to vest the entire right, title and interest in such materials in Purchaser and its successors and assigns. In the event that any Goods provided by Seller to Purchaser are subject to a claim or allegation of infringement of Intellectual Property Rights of a third party, Seller shall, at its own option and expense, without prejudice to any other right or remedy of Purchaser (including Purchaser’s indemnification rights provided for herein), promptly provide Purchaser with a commercially reasonable alternative, including the procurement for Purchaser of the right to continue using the Goods in question, the replacement of such Goods with a non-infringing alternative satisfactory to Purchaser, or the modification of such Goods (without affecting functionality) to render them non-infringing.
TAXES. Unless prohibited by law, Seller shall pay all federal, provincial, or local tax, transportation tax, or other tax which is required to be imposed upon the Goods and Services to be provided herein, or by reason of their sale or delivery.
WARRANTY. Seller warrants that it has clear title to all Goods furnished pursuant to the Purchase Order, which are being delivered free and clear of any liens, claims, security interests or other encumbrances. Seller further warrants that all such Goods shall (i) be free from defects in design, material and workmanship, (ii) conform to Seller's specifications, the requirements of these Conditions and the Purchase Order as well as approved sample or samples, if any, and (iii) shall be merchantable and fit for Purchaser's intended use. All Services will be executed (i) in a professional and workmanlike manner and in conformity with the highest industry standards and with all applicable laws, regulations, and codes, and (ii) in accordance with all specifications and all of Purchaser’s policies, guidelines, by-laws and codes of conduct applicable to Seller. Purchaser may object to any of Seller’s personnel engaged in the performance of Services who, in the reasonable opinion of Purchaser, are lacking in appropriate skills or qualifications, engage in misconduct, constitute a safety risk or hazard or are incompetent or negligent, and Seller shall promptly remove such personnel from the performance of any Services upon receipt of such notice, and shall not re-employ such removed personnel in connection with the Services without the prior written consent of Purchaser. Seller's warranty as set out in this section shall remain in effect for a minimum period of two (2) years after acceptance of any Goods and Services by Purchaser, or for such longer period of time as such Goods and/or Services are otherwise warranted by Seller and/or any applicable manufacturer, the whole of which shall not deemed to be exclusive but be in addition to Purchaser’s other rights under the terms hereof and at law or equity (the “Warranty Period”). Acceptance of the Goods and/or the Services by Purchaser shall not release or discharge Seller from liability for damages resulting from a breach of Seller's warranty as provided for herein. During the warranty period (as provided for herein), if Purchaser identifies a non-conformity, Purchaser shall notify Seller and shall direct Seller, at Seller’s sole cost and expense (including, but without limitation, all shipping, transportation and installation costs), to repair, correct, or refund the purchase price for that portion of the non-conforming Goods or Services. The warranty period (as provided for herein) will restart on the date that such non-conforming Goods or Services have been repaired or replaced, as the case may be. If Seller does not comply with this warranty, Purchaser may repair or correct the defective or nonconforming Goods or Services at Seller’s sole cost and expense.
INSURANCE: Seller shall, at its own expense, obtain and maintain in full force and effect, for the duration of the Work and the Warranty Period, the following insurance: (i) workers’ compensation coverage in the amount required by applicable statute and regulation; (ii) comprehensive general liability insurance having a minimum inclusive coverage limit including personal injury and property damage of at least $2,000,000; (iii) owned automobile liability insurance on all vehicles used in connection with the Work of at least $2,000,000 in respect of bodily injury (including passenger hazard) and property damage inclusive in any one accident; (iv) non-owned automobile liability insurance having a limit of at least $2,000,000 in respect of bodily injury (including passenger hazard) and property damage inclusive in any one accident. Such insurance shall be evidenced by a certificate of insurance naming Purchaser as an additional insured. In the event Seller performs services on Purchaser’s premises or the premises of Purchaser’s customer, Seller shall provide and shall require its subcontractors to provide proof of insurance in the form and amounts acceptable to Purchaser.
CONFIDENTIALITY: Seller shall safeguard and keep confidential any and all information relating to Purchaser obtained by it or provided to it by Purchaser in connection with the Purchase Order and shall use such information only for the purposes of carrying out the Work. The foregoing shall not apply to confidential information which (i) is in or enters the public domain other than by breach thereof, (ii) is obtained from a third party lawfully, (iii) is or has been independently generated by Seller, or (iv) is properly disclosed pursuant to a statutory obligation, the order of a court of competent jurisdiction or that of a competent regulated body. Confidential information is and shall remain the property of Purchaser and Seller shall not use such information for any purpose other than where strictly necessary for the provision of Goods and/or Services in accordance with the Purchase Order.
SAFETY: Seller shall fully comply with all safety rules, regulations, guidelines and policies of Purchaser, if any, which are part of these Conditions or otherwise. Seller acknowledges and agrees that it has full and sole responsibility for implementation, compliance and enforcement of all safety rules, regulations, and guidelines and that Purchaser’s safety rules, regulations, and policies, if any, do not in any way relieve Seller of such sole and full responsibility. Unless agreed in writing, Seller shall supply all health and safety equipment, or materials used in or required by any law, rule, regulation or guideline of any federal, provincial, territorial, state or local authority, agency, or association in the performance of the Services.
SUB-CONTRACTORS. Seller shall not sub-contract or delegate any of the Work, in whole or in part, except to sub-contractors previously approved in writing by Purchaser. Seller’s permitted assignment or subcontracting of its obligations pursuant to the Purchase Order and these Conditions, or any part thereof, will not release Seller of its obligations, and Seller will remain jointly and severally liable with the assignee or subcontractor for any obligations assigned or subcontracted.
ASSIGNMENT. Seller shall not assign the Purchase Order or any of its interest therein or any moneys to become due hereunder without first having obtained the written consent of Purchaser, which may be withheld in Purchaser's sole discretion. Purchaser may assign this Purchase Order and its therein (in whole or in part) to an affiliate or a person that is purchasing or has purchased all or substantially all of the assets of Purchaser.
COMPLIANCE WITH LAWS. Seller warrants that all goods provided hereunder have been produced, and all services performed, in compliance with applicable international, federal, provincial and local laws, ordinances, codes, rules, regulations, quality system standards, quality assurance requirements, including but not limited to to those pertaining to the manufacture, labeling, invoicing and sale of such goods or services, environmental protection, immigration, employment and occupational health and safety, including Transport Canada's Transportation of Dangerous Goods Regulations, Clear Language Edition, as amended from time to time and the Controlled Products Act.
FORCE MAJEURE: Neither Seller nor Purchaser shall be liable for the failure to perform its obligations under the Purchase Order or these Conditions to the extent that performance of such obligations is delayed or prevented due to causes beyond the reasonable control of said party, including, but not limited to, acts of God, war, revolution, civil commotion, blockade or embargo, any law, order, regulation, ordinance, or requirement of any government or its representative or legal body having jurisdiction, fires, floods, earthquake, elements of nature, pandemics, explosion, power failure, terrorism, acts of public enemies, or labor unrest such as strikes, slowdowns, picketing or boycotts, and other causes beyond the reasonable control of either party.
ENTIRE AGREEMENT: The Purchase Order and these Conditions constitute the entire agreement between the parties and contains all the agreements and conditions of sale pertaining to the subject matter set out herein and therein. No conditions other than the Conditions set forth herein and what is set out in the Purchase Order shall be binding upon Purchaser unless accepted in writing by Purchaser. There are no understandings, agreements or representations, whether express or implied, existing that are not specified in the Purchaser Order or in these Conditions. Any modification of the Purchase Order or of these Conditions must be set forth in a written instrument signed by Purchaser, failing which such modification will not be valid or binding. These Conditions shall take precedence over any of Seller’s conditions, whether set out in a quote, invoice, or anywhere else. All conditions contained in any prior proposal or subsequent acknowledgment of the Purchase Order which are different from or in addition to the Conditions or what is set out in the Purchase Order are hereby rejected and shall not be binding on Purchaser, notwithstanding Purchaser's act of accepting or paying for any delivery or similar act of Purchaser.
INDEPENDENT PARTIES. Seller is an independent contractor and the relationship between Purchaser and Seller under the Purchase Order does not constitute nor may it be construed as constituting a fiduciary relationship, a joint venture, contract of agency, partnership or employment. Supplier shall not represent or allow itself to be represented as an employee or agent of Purchaser.
GOVERNING LAW. This Agreement shall be governed by the laws of the Province of Quebec and the federal laws of Canada applicable therein. The parties irrevocably attorn to the jurisdiction of the courts sitting in the judicial district of Montreal (Quebec), which will have the exclusive jurisdiction over any matter arising out of this Agreement.
LANGUAGE. The parties expressly acknowledge requiring these Conditions, the Purchaser Order and all related documents to be drawn up in the English language. Les parties ont expressément demandé que les présentes Conditions, le Purchase Order ainsi que tous les documents qui s'y rattachent soient rédigés en anglais.