PURCHASE ORDER TERMS AND CONDITIONS
Each Purchase Order placed by Company for goods and/or services is subject to these Purchase Order Terms and Conditions (the “PO Terms”) and the terms of the Purchase Order, and is conditional upon Seller’s agreement to such terms. Seller shall be deemed to have agreed to be bound by such terms by accepting the Purchase Order, accepting payment, delivering the goods, and/or performing the services.
- Definitions. In these PO Terms, the following definitions apply: “Agreement” means the agreement between Seller and Company for the purchase and sale of Goods and/or Services; “Company” means the company set out on the face of the Purchase Order; “Deliverable” means any deliverable or other product or result from Services that is referred to in the Purchase Order, and any related materials, data, documentation, and includes any Intellectual Property Rights developed by Seller pursuant to such Purchase Order; “Goods” means the goods that are required to be delivered by Seller pursuant to a Purchase Order, and include all materials, component parts, packaging and labelling of such goods; “Intellectual Property Rights” means all intellectual and industrial property rights and rights of a similar nature including all rights in and to, patents including all issued patents and pending applications therefore and patents which may be issued therefrom (including divisions, reissues, re-examinations, continuations and continuations-in-part); trade-marks; copyrights; industrial design rights; rights pertaining to trade secrets and confidential information; publicity rights; personality rights; moral rights; and other intellectual property rights whether registered or not and all applications, registrations, renewals and extensions pertaining to the foregoing; “Purchase Order” means the purchase order between Company and Seller for the purchase and sale of Goods and/or Services, to which these PO Terms are attached or are incorporated by reference; “Services” means any services to be provided by Seller to Company pursuant to a Purchase Order; “Specifications” means the requirements, attributes and specifications for the Goods or Services that are set out in the Purchase Order. Specifications also include: (a) documentation published by Seller relating to the Goods or Services; (b) operational and technical features and functionality of the Goods or Services; (c) standards or levels of service performance for Services; and (d) Company business requirements that are expressly set out in a Purchase Order; “Seller” means the party indicated on the face page of the Purchase Order that is contracting with Company for the purchase and sale of Goods and/or Services; “Seller Proposal” means any acknowledgement, estimate, quote, offer to sell, invoice, or proposal of Seller relating to the supply of Goods and/or Services to Company, including any delivered in connection with a request for quotations, request for proposal or similar process initiated by Company.
- Agreement. The Agreement consists only of: (a) any previous separate written agreement between the parties providing for the purchase and sale of the Goods and/or Services that remains in effect as of the date of the Purchase Order; (b) the PO Terms; (c) the Purchase Order; and (d) any Specifications or other documents expressly referenced in the Purchase Order. Any reference in the Purchase Order to any Seller Proposal is solely for the purpose of incorporating the descriptions and specifications of the Goods and/or Services contained in the Proposal, and only to the extent that the terms of the Seller Proposal do not conflict with the descriptions and Specifications set out in the Purchase Order. Company’s acceptance of, or payment for, Goods and/or Services will not constitute Company’s acceptance of any additional or different terms in any Seller Proposal, unless otherwise accepted in writing by Company. If there is any conflict or inconsistency between the documents constituting the Agreement, then unless otherwise expressly provided, the documents will rank in the order of precedence in accordance with the order in which they are listed in this Section 2.
- Delivery of Goods and Services.
a. Seller agrees to supply and deliver the Goods to Company and to perform the Services, as applicable, on the terms set out in this Agreement.
b. Seller shall, at its own expense, pack, load, and deliver Goods to the location identified by Company in the Purchase Order, or such other delivery area or point which is specified in writing by Company (the “Delivery Point”) and in accordance with the invoicing, delivery terms, shipping, packing, and other instructions printed on the face of the Purchase Order or otherwise provided to Seller by Company in writing. No charges will be allowed for freight, transportation, insurance, shipping, storage, handling, demurrage, cartage, packaging or similar charges unless provided for in the applicable Purchase Order or otherwise agreed to in writing by Company.
c. Time is of the essence with respect to delivery of the Goods and performance of Services. Goods shall be delivered and Services performed by the applicable date specified in the Purchase Order (the “Delivery Date”). If Seller ships Goods ahead of the Delivery Date, Company reserves the right to either (i) return the Goods to Seller at Seller’s expense; or (ii) extend the payment terms for the received Goods by the number of days received early. Seller must immediately notify Company if Seller is likely to be unable to meet a Delivery Date. Seller shall, upon request from Company, take all reasonable steps to prevent such delay by appropriate methods, including (without limitations), incurring expenditures for overtime and expedited shipment by air or other means of expedited transport. Any costs incurred by Seller to reduce or prevent such delay shall be borne solely by Seller, unless the delay in delivery arises from causes beyond the control and without the fault or negligence of Seller or its subcontractors.
d. At any time prior to the Delivery Date, Company may, upon notice to Seller, cancel or change the Purchase Order, or any portion thereof, for any reason, including, without limitation, for the convenience of Company or due to failure of Seller to comply with this Agreement, unless otherwise noted. e. Title and risk of loss or damage shall pass to Company upon receipt of Goods at the Delivery Point, unless otherwise agreed to by the Company in writing. Company has no obligation to obtain insurance while Goods are in transit from Seller to the Delivery Point. f. Seller shall follow all instructions of Company and cooperate with Company’s customs broker as directed by Company (including by providing requested shipping documentation) with respect to all Goods that originate from sources or suppliers based outside Canada. Seller shall comply with all the requirements of the Canada Border Services Agency (or any successor organization) with respect to the importation of Goods from outside Canada. - Inspection; Acceptance and Rejection.
a. All shipments of Goods and performance of Services shall be subject to Company’s right of inspection. Company shall have thirty (30) days (the “Inspection Period“) following the delivery of the Goods at the Delivery Point or performance of the Services to undertake such inspection, and upon such inspection Company shall either accept the Goods or Services (“Acceptance“) or reject them. Company shall have the right to reject any Goods that are delivered in excess of the quantity ordered or are damaged or defective. In addition, Company shall have the right to reject any Goods or Services that are not in conformance with the Specifications or any term of this Agreement. Transfer of title to Company of Goods shall not constitute Company’s Acceptance of those Goods. Company shall provide Seller within the Inspection Period notice of any Goods or Services that are rejected, together with the reasons for such rejection. If Company does not provide Seller with any notice of rejection within the Inspection Period, then Company will be deemed to have provided Acceptance of such Goods or Services. Company’s inspection, testing, or Acceptance or use of the Goods or Services hereunder shall not limit or otherwise affect Seller’s warranty obligations hereunder with respect to the Goods or Services, and such warranties shall survive inspection, test, Acceptance and use of the Goods or Services.
b. Company shall be entitled to return rejected Goods at Seller’s expense and risk of loss for, at Company’s option, either: (i) full credit or refund of all amounts paid by Company to Seller for the rejected Goods; or (ii) replacement Goods to be received within the time period specified by Company. Title to rejected Goods that are returned to Seller shall transfer to Seller upon such delivery and such Goods shall not be replaced by Seller except upon written instructions from Company. Seller shall not deliver Goods that were previously rejected on grounds of non-compliance with this Agreement, unless delivery of such Goods is approved in advance by Company, and is accompanied by a written disclosure of Company’s prior rejection(s). In the event of rejected Services, Company may, at its option, either: (i) require Seller to re-perform the Services at no additional cost to Company within the time period specified by Company; or (ii) terminate the Purchase Order and receive a full credit or fund of all amounts paid by Company to Seller for the rejected Services. - Quality Control/Inspection
a. Seller shall provide and maintain a quality control system acceptable to Company. Records of all inspection work by Seller shall be kept accurate and complete and available to Company during the performance of the Purchase Order and until final inspection and acceptance, and for any longer period required by law.
b. Any authorized representative of Company may inspect or audit Seller’s or Seller’s subcontractors’ facilities and processes engaged in the performance of the Purchase Order. Seller shall provide all reasonable cooperation and assistance to Company in connection with its inspection and audit right. Company’s exercise of right of inspection shall not be deemed to be Company’s acceptance of the Goods and/or Services
c. Seller shall notify Company not less than 90 days in advance of any proposed changes to Seller’s manufacturing processes, compositions or grade or raw materials used, critical process sources, equipment or facilities that may impact the quality, acceptability, reliability or on-time delivery of the Goods and/or Services, including any proposed relocation of relevant manufacturing or assembly facilities. Any such changes must be planned and coordinated between Company and Seller prior to implementation. If Seller implements such changes without Company’s prior written approval, this may render the Goods and/or Services defective, and Company will have the remedies set out in Section 4.4.b. - Price/Payment Terms. Prices for the Goods and/or Services will be set out in the applicable Purchase Order. Price increases or charges not expressly set out in the Purchase Order shall not be effective unless agreed to in advance in writing by Company. Seller will issue all invoices on a timely basis. All invoices delivered by Seller must meet Company’s requirements, and at a minimum shall reference the applicable Purchase Order, including the release number if the shipment is against a blanket Purchase Order. Each invoice sent by Seller shall be deemed to certify that the prices for the Goods and/or Services are not less favourable than those currently extended to any other customer for the same or like articles in equal or lesser quantities. If Seller reduces its prices for such articles before the Delivery Date, Seller will reduce the prices to Company correspondingly. Company will pay the undisputed portion of properly rendered invoices sixty (60) days from receipt of a correct and complete invoice. Company may offset against any amounts due under Seller’s invoices: (a) any damage resulting from Sell’s result under or breach of any contract (including this Agreement); (b) any amount owing from Seller to Company, and (c) any amount disputed in good faith. Notwithstanding the foregoing, Company agrees to pay the balance of the undisputed amounts on any invoice that is the subject of any dispute within the time periods specified herein.
- Taxes. Unless otherwise stated in a Purchase Order, all prices or other payments stated in the Purchase Order are exclusive of any taxes. Seller shall separately itemize all applicable taxes each on each invoice and indicate on each invoice its applicable tax registration number(s). Company will pay all applicable taxes to Seller when the applicable invoice is due. Seller will remit all applicable taxes to the applicable government authority as required by applicable laws. Notwithstanding any other provision of this Agreement, Company may withhold from all amounts payable to Seller all applicable withholding taxes and to remit those taxes to the applicable governmental authorities as required by applicable laws.
- Hazardous Materials. Seller agrees to provide, upon and as requested by Company, to satisfy any applicable laws governing the use of any hazardous substances either of the following: (a) all reasonably necessary documentation to verify the material composition, on a substance by substance basis, including quantity used of each substance, of any Goods, and/or of any process used to make, assemble, use, maintain or repair any Goods; or (b) all reasonably necessary documentation to verify that any Goods and/or any process used to make, assemble, use, maintain or repair any Goods, do not contain, and the Services do not require the use of, any particular hazardous substances specified by Company.
- Compliance with Code of Conduct and Laws; Child and Forced Labour. In carrying out its obligations under the Agreement, including the performance of Services, Seller shall at all times comply with Company’s Code of Conduct and all applicable all federal, provincial, state, foreign and municipal laws, regulations, standards, and codes, including but not limited to the United States Foreign Corrupt Practices Act and the Canadian Corruption of Foreign Public Offices Act and all applicable Canadian and United States sanctions and export control laws. Seller represents and warrants that neither it nor any of its subcontractors will utilize child, slave, prisoner, or any other form of forced or involuntary labor in the supply of Goods or provision of Services under this Agreement, and that it will take reasonable steps to identify, assess and address risks of child labour and forced labour in its operations and supply chains. Seller shall obtain all applicable permits, licences, exemptions, consents and approvals required for the Seller to manufacture and deliver the Goods and perform the Services.
- Work on Company Premises. If Seller’s performance of the Purchase Order involves work by Seller on the premises of Company or Company’s customer, Seller shall take all necessary precautions to prevent the occurrence of any injury to person or damage to property during the progress of such work. Seller shall at all times also comply and ensure all persons for whom it is responsible shall comply with all Company policies, rules, regulations, restrictions, guidelines, directives and orders when on the premises of Company or any Company’s customer. Except to the extent that any injury or damage is due solely and directly to Company’s or its customer’s negligence, as the case may be, Seller hereby releases Company, its affiliates and customers, and shall indemnify, defend and hold harmless Company, its affiliates and their respective customers, officers, directors, employees, consultants, and agents (the “Company Indemnified Parties“), from and against any and all claims, fines, losses, suits, demands, actions, damages, expenses, legal fees and all other liabilities brought against or incurred by the Company Indemnified Parties or any of them for injuries to persons (including loss or lift) or damage to property arising out of or claimed to have arisen out of or in connection with or by reason of any act or omission of Seller or any person for whom Seller is responsible (including affiliates, employees, subcontractors and agents).
- Seller Warranties. “Warranty Period” means in respect of any Goods or Services, the longer of: (i) the express written warranty period provided by Seller for the Goods or Services; and (ii) the period commencing on the date of Acceptance of such Goods or Services and ending on the date that is one (1) year from that date. The warranties set out below are in addition to all other warranties and conditions to which Company is entitled under this agreement or by law and do not constitute a waiver of any rights of Company, express or implied.
a. Goods Warranties. Seller warrants to Company that during the Warranty Period, all Goods shall be: (i) of merchantable quality; (ii) fit for the purposes intended; (iii) ) free from defects in design, material and workmanship, and in the case of software, will be free from disabling or malicious code; (iv) in strict compliance with the Specifications; (v) free from any liens or encumbrances on title whatsoever; (vi) in conformance with any samples provided to Company; and (vii) compliant with all applicable federal, provincial, state, foreign and municipal laws, regulations, standards, and codes.
b. Service Warranties. Seller shall perform all Services: (i) exercising that degree of professionalism, skill, diligence, care, prudence, judgment, and integrity which would reasonably be expected from a skilled and experienced service provider providing services under the same or similar circumstances as the Services under this Agreement; (ii) in accordance with all Specifications and all Company policies, guidelines applicable to Seller; and (iii) using only personnel with the skills, training, expertise, and qualifications necessary to carry out the Services. Company may object to any of the Seller’s personnel engaged in the performance of Services who, in the reasonable opinion of Company, are lacking in appropriate skills or qualifications, engage in misconduct, constitute a safety risk or hazard or are incompetent or negligent, and the Seller shall promptly remove such personnel from the performance of any Services upon receipt of such notice, and shall not re-employ the removed person in connection with the Services without the prior written consent of Company.
c. Intellectual Property Warranty. Seller further warrants to Company that at all times all Goods and or Services (including any Deliverables) will not violate, infringe or otherwise misappropriate any Intellectual Property Rights of any person. d. Manufacturer Warranties. Seller shall assign to Company all manufacturer’s warranties for Goods not manufactured by or for Seller, and shall take all necessary steps as required by such third party manufacturers to effect assignment of such warranties to Company. e. Counterfeit Parts. Seller further represents and warrants that only new and authentic materials are used in Goods, and that the Goods will not contain any Counterfeit Parts. No other material, part, or component other than a new and authentic part shall be used unless approved in advance in writing by Company. To further mitigate the possibility of the inadvertent use of Counterfeit Parts, Seller shall only purchase authentic parts/components directly from the OEMs/OCMs or through the OEM’s/OCM’s authorized distribution chain. “Counterfeit Part” is one that is (1) an unauthorized copy or substitute that has been identified, marked, and/or altered by a source other than the item’s legally authorized source and has been misrepresented to be an authorized item of the legally authorized source and/or (2) previously used parts provided as “new”. f. Conflicts Minerals. Seller further represents and warrants to Company that the Goods shall be free of any known Conflict Minerals which are: columbite-tantalite (coltan), cassiterite, wolframite, and gold, to include derivatives (tantalum, tin, and tungsten, which are known as the “3Ts”) which are used to finance conflict in the Democratic Republic of Congo or adjoining country. Seller commits to have in place a supply chain policy and processes to undertake a reasonable inquiry into the country of original of any Conflict Minerals incorporated into the Goods and due diligence of its supply chain. g. Benefit of Warranties. All of Seller’s warranties are enforceable by Company, its affiliates, their successors and assigns, Company’s customers and any subsequent owner or operator of the Goods and/or Services. - Warranty Remedies.
a. In the event of breach of any of the warranties in Section 11.a or 11.b, and without prejudice to any other right or remedy available to Company (including Company’s indemnification rights hereunder), Seller will, at Company’s option and Seller’s expense, refund the purchase price for, or correct or replace the affected Goods, or re-perform the affected Services, within 10 day(s) after notice by Company to Seller of warranty breach. All associated costs, including costs of re-performance, costs to inspect the Goods and/or Services, transport the Goods from Company to Seller, and return shipment to Company, and costs resulting from supply chain interruptions, will be borne by Seller. If Goods are corrected or replaced or Services are re-performed, the warranties in Section 11.a will continue as to the corrected or replaced Goods or Services for a further Warranty Period commencing on the date of Acceptance of the corrected or replaced Goods or Services by Company. If Seller fails to repair or replace the Goods or re-perform the Services within the time periods required above, Company may repair or replace the Goods or re-perform the Services at Seller’s expense. b. In the event that any Goods provided by Seller to Company 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 Company (including Company’s indemnification rights hereunder), promptly provide Company with a commercially reasonable alternative, including the procurement for Company of the right to continue using the Goods in question, the replacement of such Goods with a non-infringing alternative satisfactory to Company, or the modification of such Goods (without affecting functionality) to render them non-infringing. - Intellectual Property Rights. All Intellectual Property Rights in and to each Deliverable shall vest in Company free and clear of all liens and encumbrances on receipt of payment by Seller for each Deliverable. To the extent that any Deliverables contain any intellectual property of Seller, Seller hereby grants to Company a worldwide, royalty-free, non-exclusive, perpetual license to use, copy, modify and distribute such intellectual property as part of the Deliverables. Seller agrees to provide to Company all assistance reasonably requested by Company 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 Company and its successors and assigns.
- Confidentiality. Seller shall safeguard and keep confidential any and all information relating to Company obtained by it or provided to it by Company in connection with this Agreement, and shall use such information only for the purposes of carrying out its obligations under this Agreement.
- Insurance. Seller represents and warrants to Company that it has in place with reputable insurers such insurance policies in coverage amounts that would be maintained by a prudent supplier of goods and services similar to the Goods and Services provided hereunder, including, as applicable, professional errors and omissions liability insurance and comprehensive commercial general liability insurance (including product liability coverage, all-risk contractors’ equipment insurance, and automobile liability insurance). In addition, Seller will take out and maintain, at its own cost, such insurance policies and coverages as may be reasonably required by Company from time to time. Seller will promptly deliver to Company, as and when requested, written proof of such insurance. If requested, Company will be named as an additional insured under any such policies. If requested by Company, such insurance will provide that it cannot be cancelled, or materially changed so as to affect the coverage provided under this Agreement, without the insurer providing at least 30 days prior written notice to Company.
- Indemnities. Seller shall indemnify, defend and hold harmless the Company Indemnified Parties from and against any claims, fines, losses, suits, demands, actions, damages, expenses, legal fees and all other liabilities brought against or incurred by the Company Indemnified Parties or any of them arising out of: (a) death, bodily injury, or loss or damage to real or tangible personal property resulting from the use of or any actual or alleged defect in the Goods or Services, or from the failure of the Goods or Services to comply with the warranties hereunder; (b) any claim that the Goods or Services infringe or violate the Intellectual Property Rights or other rights of any person; (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 this Agreement; or (e) any liens or encumbrances relating to any Goods or Services.
- Limitation of Liability. EXCEPT FOR SELLER’S OBLIGATIONS UNDER SECTION 10 AND 17, AND EXCEPT FOR DAMAGES THAT ARE THE RESULT OF THE GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF A PARTY, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING ANY LOST PROFITS, DATA, GOODWILL, OR BUSINESS OPPORTUNITY FOR ANY MATTER RELATING TO THIS AGREEMENT.
- Independent Contractors. Seller will perform its obligations under the Agreement as an independent contractor and in no way will Seller or its employees be considered employees, agents, partners, fiduciaries, or joint venturers of Company. Seller and its employees will have no authority to represent Company or its affiliates or bind Company or its affiliates in any way, and neither Seller nor its employees will hold themselves out as having authority to act for Company or its affiliates.
- No Publicity. Seller will not, without the prior written consent of Company, issue any media release, public announcement, or public disclosure, or use Company’s or any of its affiliates’ names, trademarks, logos or any facsimiles thereof, to advertise or promote the fact that Company is or was a customer of Seller.
- Further Assurances. The parties shall sign such further and other documents, cause such meetings to be held, resolutions passed and do and perform and cause to be done and performed such further and other acts and things as may be necessary or desirable in order to give full effect to this Agreement and every part thereof.
- Severability. If any provision of this Agreement is determined to be unenforceable or invalid for any reason whatsoever, in whole or in part, such invalidity or unenforceability shall attach only to such provision or part thereof and the remaining part thereof and all other provisions shall continue in full force and effect.
- Waiver. No waiver of any provision of this Agreement shall be enforceable against that party unless it is in writing and signed by that party.
- Assignment. Seller may not assign or subcontract this Agreement, in whole or in part, without Company’s prior written consent. Seller’s permitted assignment or subcontracting of this Agreement or any part thereof will not release Seller of its obligations under this Agreement, and it will remain jointly and severally liable with the assignee or subcontractor for any obligations assigned or subcontracted. The acts of omissions of any subcontractors of Seller will be deemed to be the acts and omissions of the Seller. Company may assign this Agreement, in whole or in part, to any affiliate of Company, without the consent of Seller. This Agreement shall enure to the benefit of and be binding upon the parties and their respective legal personal representatives, heirs, executors, administrators, assigns or successors.
- Cumulative Remedies. The rights and remedies of Company in this Agreement are cumulative and in addition to any other rights and remedies at law or in equity.
- Survival. Any provision of this Agreement which expressly or by implication from its nature is intended to survive the termination or completion of the Agreement will continue in full force and effect after any termination, expiry or completion of this Agreement.
- Interpretation. The headings used in this Agreement and its division into articles, sections, schedules, exhibits, appendices, and other subdivisions do not affect its interpretation. Unless the context requires otherwise, words importing the singular number include the plural and vice versa; words importing gender include all genders. References in this Agreement to articles, sections, schedules, exhibits, appendices, and other subdivisions are to those parts of this Agreement. Where this Agreement uses the word “including,” it means “including without limitation,” and where it uses the word “includes,” it means “includes without limitation.
- Governing Law. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. If Company’s address on the Purchase Order is in Canada: (i) this Agreement shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein; and (ii)the parties irrevocably attorn to the jurisdiction of the courts of Ontario in Toronto, which will have non-exclusive jurisdiction over any matter arising out of this Agreement. If Company’s address on the Purchase Order is in the United States: (i) this Agreement shall be governed by the laws of the state of New York; and (ii) the parties irrevocably attorn to the jurisdiction of the courts of New York county, New York, which will have non-exclusive jurisdiction over any matter arising out of this Agreement.
- Electrical/Electronic Components and Equipment. All electrical/electronic components or equipment must have applicable regulatory approvals such as the Electrical Safety Authority, CSA or ULC and CE (in European Union) requirements and conform to the industry standards and all other applicable legislative requirements.
- Language. It is the express wish of the parties that this Agreement and any related documentation be drawn up in English. Il est de la volonté expresse des parties que cette convention ainsi que tout document connexe soient rédigés en langue anglaise.
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