Purchase Order Terms and Conditions
The purchase order incorporating these general purchase order terms by reference (the “Order”) is an offer by GLOBALMED INC. (the “Buyer”), to purchase the goods described in the Order (the “Goods”) from the person to whom the Order is addressed (the “Seller”). The terms of the Order, together with these terms (collectively, these “Terms”), supersede (1) all prior understandings between the parties about the subject matter of the Order, (2) the Seller’s terms of sale, and (3) any document concerning the subject matter of the Order that is not referenced in these Terms. These Terms apply to any repaired or replacement Goods provided by the Seller. The Buyer is not subject to any minimum purchase obligations or future purchase obligations under the Order.
The Order is not binding on the Buyer until the Seller accepts the Order in writing. The Buyer may withdraw the Order at any time before the Seller accepts the Order in writing. The Buyer may unilaterally amend the Order, even after the Seller accepts the Order, as long as the Seller is not materially prejudiced by the amendment.
3. Inspection and Testing.
The Buyer has the right at any time to inspect, test, and sample the Goods on or after delivery, at the Seller’s expense. The Buyer may reject some or all of the Goods if Buyer determines the Goods are non-conforming or defective. The Buyer’s right to inspect and test Goods does not reduce the Seller’s obligations under these Terms. If the Buyer rejects Goods, the Buyer may notify the Seller and (1) rescind the Order in its entirety; (2) accept some or all of the Goods at a reasonably reduced price; or (3) reject the Goods and require replacement of the rejected Goods. If the Buyer requires replacement of the Goods, the Seller shall, at its expense, promptly replace the non-conforming Goods. If the Seller fails to promptly deliver replacement Goods, the Buyer may replace them with goods from a third party, at the Seller’s expense. The Buyer may, at the Seller’s expense, at any time and without notice, inspect or audit the Seller’s (and the Seller’s affiliates’ and contractors’) facilities and equipment related to the production, supply and distribution of Goods.
The price of the Goods is the price stated in the Order (the “Price”). If no price is stated in the Order, the Price is the price stated in the Seller’s published price list on the date of the Order. Unless otherwise stated in the Order, the Price includes packaging, transportation, insurance, customs duties, and applicable fees and taxes, including sales, use, excise, harmonized sales, goods and services, and provincial sales tax. No increase in the Price is effective unless agreed to by the Buyer in writing.
5. Payment Terms.
- The Seller shall invoice the Buyer on or after delivery of the corresponding Goods. The Buyer shall pay all properly invoiced amounts to the Seller in accordance with the payment terms stated in the applicable Order.
- The Seller is not entitled to any remedy for the Buyer’s breach of these Terms, including the Buyer’s failure to make payment in accordance with these Terms, unless the Seller has notified the Buyer in writing, within 30 days of the due date of the applicable payment, that the Buyer has breached these Terms, and the Buyer fails to rectify the breach within 120 days of receipt of the Seller’s notice. The Seller shall include with its notice copies of all relevant records and evidence substantiating the Seller’s position. The Seller shall further promptly provide the Buyer with any other reasonable information, records or evidence requested by the Buyer in connection with the notice.
- For greater certainty, the Seller acknowledges that if the Seller does not deliver a notice in accordance with section 5(b) of these Terms, the Seller will have waived all rights and remedies available to it under these Terms or under applicable Laws, to the fullest extent allowed by law, and the Seller shall not make any related demand or commence any related legal proceedings.
- All prices stated in the Order are in Canadian dollars, unless otherwise stated in the Order. The Buyer shall make payment in the currency stated in the Order or, if no such currency is stated, in Canadian dollars. The Buyer may at any time set-off amounts owing from the Seller to one or more Indemnitees.
6. Delivery Timing and Location.
The Seller shall deliver Goods to the locations stated in the Order and at the corresponding dates and times stated in the Order. The Seller’s on-time delivery of the Goods is of the essence. If the Seller delivers more than or less than 100% of the quantity of Goods ordered, the Buyer may return some or all of the Goods at the Seller’s expense, and the Price for the Goods will be deemed adjusted in proportion to the excess or shortage.
7. Shipping Terms, Title, Risk of Loss.
Unless otherwise stated in the Order, the Seller shall deliver the Goods “Delivered Duty Paid” the delivery location stated in the Order. The Seller shall notify the Buyer in writing when the Goods are delivered to a carrier for transportation, and shall promptly provide the Buyer with all applicable shipping documents, including commercial invoices, packing lists, waybills, bills of lading, and any other documents reasonably necessary to release the Goods to the Buyer. The Order number must appear on all shipping documents pertaining to the Order. The Seller shall comply with the export and import laws of all countries involved in fulfillment of the Order. The Seller assumes all responsibility for shipments of Goods requiring any government import clearance. Title to the Goods passes from the Seller to the Buyer upon the Buyer’s written acceptance of the Goods following delivery.
The Seller shall pack all Goods for shipments in accordance with the Buyer’s instructions or, if the Buyer has not provide instructions, in a manner sufficient to ensure the Goods are delivered lawfully, in undamaged condition, and in accordance with industry standards. If the Seller wants the Buyer to return any packaging materials, the Seller must obtain the Buyer’s written consent before the Seller delivers the Goods. The Buyer’s return of any packaging materials will be at the Seller’s expense.
The Seller warrants to the Buyer that the Goods will (1) be free from defects in workmanship, material and design; (2) conform to the Buyer’s then-current specifications, policies, procedures, drawings, designs, samples and other requirements; (3) be fit for intended purpose, operate as intended, and be merchantable; (4) be free and clear of all liens, security interests or other encumbrances; (5) not infringe or misappropriate any third party’s patent or other intellectual property rights. The Seller warrants to the Buyer that (1) the Seller’s acts and omissions related to the Order will be lawful; and (2) the Seller will obtain and maintain all licenses, permissions, authorizations, consents and permits that the Seller needs to carry out its obligations under the Order
The Seller shall defend, indemnify and hold harmless the Buyer and the Buyer’s affiliates, customers, distributors and suppliers, and each of their respective directors, officers, shareholders and employees (collectively, the “Indemnitees”) against loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable legal and professional fees and costs, the cost of enforcing any right to indemnification under these Terms, and the cost of pursuing insurance providers (collectively, the “Losses”) related to the Goods or the Seller’s negligence, willful misconduct, breach of applicable laws, or breach of these Terms. The Seller shall further defend, indemnify and hold harmless the Indemnitees against Losses related to claims that any Indemnitee’s use or possession of the Goods infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of a third party. The Seller shall not enter into any settlement without the written consent of affected Indemnitees.
During the period that the Seller has an obligation to indemnify any person under these Terms, the Seller shall maintain insurance as set out below and worker’s compensation as required by law:
- Comprehensive general liability (“CGL”) on an “occurrence” basis including products and completed operations, property damage, bodily injury and personal and advertising injury, employer’s liability with limits no less than $2,000,000 per occurrence. The Comprehensive General Liability Insurance shall also include coverage for blanket contractual liability, broad form property damage & cross liability;
- Automobile Liability in respect of owned, non-owned and leased or rented licensed vehicles, aircraft or water craft, subject to limits of not less than $2,000,000 inclusive;
- Professional Liability (Errors and Omissions) with a limit no less than $2,000,000 per occurrence or claim, $2,000,000 aggregate;
- If the Seller maintains broader coverage and/or higher limits than the minimums shown above, Buyer requires and shall be entitled to the broader coverage and/or higher limits maintained by the Seller. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to Buyer;
- Additional Insured Status: Buyer, including its officers, officials, employees, and volunteers are to be covered as additional insured on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Vendor/Supplier including materials, parts or equipment furnished in connection with such work or operations;
- For any claims related to this Order, the Seller insurance coverage shall be primary coverage as respects the entity, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by it, its officers, officials, employees, or volunteers shall be excess of the Seller’s insurance and shall not contribute with it;
- Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to Buyer.
- Waiver of Subrogation: Seller hereby grants to Buyer a waiver of any right to subrogation which any insurer of said Seller may acquire against Buyer by virtue of the payment of any loss under such insurance. Seller agrees to obtain any endorsement that may be necessary to affect this waiver of sub rogation, but this provision applies regardless of whether or not Buyer has received a waiver of subrogation endorsement from the insurer.
To the extent that Goods have not been accepted by the Buyer, the Buyer may terminate the Order on written notice to the Seller, and the Seller’s sole remedy will be payment for Goods accepted by the Buyer prior to termination. The Buyer may terminate the Order on written notice to the Seller, without penalty, either before or after the acceptance of Goods, (1) if the Seller has failed to comply with any of these Terms; (2) if the Seller becomes insolvent, is generally unable to pay, or fails to pay, its debts as they become due, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, arrangement or assignment for the benefit of creditors; or (3) if a government authority imposes antidumping duties, countervailing duties or any retaliatory duties on the Goods.
13. Confidential Information.
All non-public, confidential or proprietary information of the Buyer, including specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, franchisee lists, pricing, discounts, rebates, and information about the Order, whether or not identified as “confidential”, is confidential, and may be used by the Seller solely for its performance in connection with the Order, and may not be disclosed or copied. Upon the Buyer’s request, the Seller shall promptly return all documents and other materials received from the Buyer. The Seller shall not contest the Buyer’s application for injunctive relief in relation to the Seller’s violation of this section. This section does not apply to information that is (1) in the public domain; (2) known to the Seller at the time of disclosure; (3) rightfully obtained by the Seller on a non-confidential basis from a third party; or (4) required to be disclosed by law or judicial process, provided the Seller notifies the Buyer at least five days before disclosure and reasonably cooperates with the Buyer’s efforts to intervene and protect the Buyer’s interest.
- Amendment and Modification. No change to the Order or these Terms is binding upon the Buyer unless it is in writing, specifically states that it amends this Order or these Terms, and is signed by the Buyer.
- No Waiver. No waiver of any of these Terms will be effective unless it is in writing and signed by the waiving party. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Order will operate or be construed as a waiver, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further such exercise of, or the exercise of any other, right, remedy, power or privilege.
- Assignment. The Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under the Order without the prior written consent of the Buyer. The Buyer may at any time assign, transfer or subcontract any or all of its rights or obligations under the Order without Seller’s consent.
- Independent Contractors. The relationship between the parties is that of independent contractors. Nothing contained in the Order will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Order.
- Governing Law. All matters connected to the Order will be governed by the laws of the Province of Ontario (including the applicable federal laws of Canada), without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction, and proceedings shall take place in Ontario. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Order.
- Remedies Cumulative. The rights and remedies under the Order are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
- Notices. All notices, request, consents, claims, demands, waivers and other communications contemplated by these Terms (each, a “Notice”) must be in writing and addressed to the parties at the addresses stated in the Order, or to such other address that may be designated by the receiving party in writing. All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in the Order, a Notice is effective only upon receipt of the receiving party.
- Severability. If any of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of this agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. The parties acknowledge that, in the event of any such invalidity, illegality or unenforceability, they intend that adjudicative bodies should amend these Terms to remedy such invalidity, illegality or unenforceability while preserving the original intent of the parties to the fullest extent possible.
- Survival. Provisions of these Terms that by their nature should apply beyond their terms, including provisions in these Terms regarding set-off, warranties, indemnification, intellectual property, insurance, compliance with laws, confidentiality, governing law, jurisdiction and survival, will remain in force after any termination of the Order.
- Headings. Headings, titles and similar references contained in these Terms are for convenience only and are not intended to affect the interpretation of these Terms.