PURCHASE ORDER TERMS & CONDITIONS
IMPORTANT – READ CAREFULLY
For good and valuable consideration now paid by each party to the other, the receipt of which is hereby acknowledged, the parties agree that:
1. ACCEPTANCE; PURCHASE ORDER CONSTITUTES ENTIRE AGREEMENT - This Purchase Order, including these Purchase Order Terms and Conditions (“Order”) constitutes an offer by xpedx Canada, Inc. (“Buyer”) and may be accepted by the seller indicated on the front page of this Order (“Seller”)only in accordance with the terms hereof. Any acceptance herein of an offer of Seller, or any confirmation herein of a prior agreement between Buyer and Seller, is expressly made conditional on Seller's assent to the additional or different terms contained herein which shall take precedence over any other agreement (oral or written) between the Buyer and the Seller to the extent of any inconsistency. This Order may be accepted by Seller by commencement of work, shipment of products, or furnishing of services hereunder, with notice to Buyer. Dispatch of Seller's acknowledgement form or other written document will also act as an acceptance if it agrees with this Order with respect to the description, amount, price and time of delivery of the products ordered and these Terms and Conditions. Notwithstanding any waiver in any instance, or any oral agreement, or any instructions, terms and conditions that may be contained in any quotation, acknowledgement, invoice or other written document of Seller, no addition to, waiver for the future or modification of, any of the provisions herein contained shall be of any force or effect unless agreed to by Buyer, made in writing and executed and delivered by Buyer.
2. CHANGES - Buyer shall have the right at any time to make changes in this Order by written notice to Seller, and Seller agrees to comply with such changes. If such changes cause a material increase or decrease in Seller's costs or time of performance of this Order, Seller shall notify Buyer immediately and negotiate an adjustment of the purchase price or the date of delivery/performance, as applicable, which shall not be binding until Buyer’s acceptance of such adjustment.
3. PRICE - If this Order is not priced, it shall not be filled at prices higher than those last quoted and charged Buyer for the same articles. Charges for boxing, packaging or cartage will not be allowed or paid by Buyer unless otherwise expressly stated on this Order. Products are purchased on a delivered basis. Buyer’s total liability for freight is included in the purchase price of the products. All freight charges are to be paid by the Seller to the carrier without further liability to Buyer, its parent company, divisions, subsidiaries or affiliates, or its customer and/or consignee.
4. SHIPPING - Buyer reserves the right to route all shipments. Delays in shipment shall be reported immediately by Seller to Buyer and Buyer reserves the right to cancel an order where there is an unreasonable delay in delivery, in the sole opinion of Buyer. Every package or other shipping unit, bill of lading, shipping memorandum and invoice must be marked with Buyer's Purchase Order Number. Seller's serial numbers must be shown on all shipping papers and invoices.
5. TIME OF THE ESSENCE - Time of shipment and of other aspects of performance hereunder is of the essence of this agreement.
6. DELIVERY/TITLE - Unless otherwise agreed, delivery shall be determined by Incoterm agreed to between the Buyer and Seller. Risk of damages or loss following shipment and prior to acceptance by Buyer shall be the responsibility of Seller.
7. RIGHT OF INSPECTION AND REJECTION - Products supplied by Seller shall be received subject to Buyer's or its customer’s, as applicable, inspection and approval within a reasonable time after delivery, notwithstanding prior payment. If specifications or warranties are not met, material and equipment may be returned at Seller's expense and Buyer shall have the rights set forth in these Terms and Conditions. No products returned to Seller as defective shall be replaced except upon Buyer's formal authorization. No inspection or acceptance by Buyer or its customer, as applicable, shall limit or affect Buyer’s rights and remedies under any warranties hereunder or at law.
8. ASSIGNMENT - Neither this Order nor any interest therein nor any claim arising hereunder shall be transferred or assigned by Seller without the prior written consent of Buyer. Buyer may transfer or assign the benefits of this agreement, in whole or in part, including without limitation Seller’s warranty, without the approval of Seller.
9. GOVERNING LAW - This Order, and the rights and obligations of the parties thereto, shall be determined in accordance with the laws of the State or Province where the products shall be finally delivered or installed.
10. WARRANTY - Seller expressly understands and acknowledges that Buyer is purchasing the products set forth in this Order for the purposes of resale to Buyer’s customers and that Buyer’s customers shall have the full benefit of any warranties herunder. In addition to any warranties imposed of implied by law, Seller warrants that all products and services furnished pursuant to this Order will be free from defects in material or workmanship and will be in conformity with the requirements of this Order, including drawings and specifications, if any, and reasonably fit for the purpose disclosed in this Order or in such drawings and specifications, and Seller further warrants that such products and services will be merchantable and fit for the purpose for which they are sold, and where design is Seller's responsibility, will be free from defects in design . Seller further warrants that it has complied with all applicable packaging and labeling laws in the U.S. and Canada. Buyer's approval of Seller's design or material shall not be construed to relieve Seller of the warranties or indemnities set forth herein. Without limitation of any rights which Buyer may have at law by reason of any breach of warranty, products which are not as warranted may at any time within twelve (12) months after delivery be returned at Seller's expense. Buyer at its option may require Seller either to replace such products at no additional cost to Buyer (Seller must pay all repacking, transportation and handling charges both ways) or to refund the purchase price and any charges in connection therewith.
11. INVOICES - All invoices shall be mailed to Buyer at its office as indicated on the face of this Order and will state Buyer's Purchase Order Number clearly on the Invoice. Invoices shall be rendered for each Order or for each shipment if more than one is made on an order. No invoice shall be delivered by Seller to any employee of Buyer other than as indicated on the Purchase Order. An itemized delivery ticket, bearing Buyer's Purchase Order Number as shown hereon, must be left with the products to ensure their receipt. If delivery is made by carrier, an itemized delivery ticket must be attached to the package or other shipping unit. The payment discount period, if any, will date from receipt of the invoice and not from the date of the invoice. In case of errors on an invoice, the payment discount period will date from the receipt of corrected invoices. Buyer reserves the right to pay only the undisputed portions of invoices, and invoice payment dates and discount dates will be tolled until the resolution of any disputes. Without limiting Sections 3 and 6, Seller shall use the lowest published freight rates, and any excess transportation charges incurred, including any that deviate from the published tariff rates, are to be borne by the Seller.
12. INTELLECTUAL PROPERTY INDEMNITY - Seller agrees to indemnify, save harmless and defend Buyer from and against any and all suits, claims, damages, costs, and attorney's fees (as well as any settlements of same) arising out of or in connection with any infringement or claimed infringement of any United States, Canadian or other patent, trademark or copyright in the manufacture, use or sale of the products furnished under this Order. In case said products are in such suit, or in final adjudication elsewhere, held to constitute infringement, and the use thereof is enjoined, at Buyer’s option, Seller shall, at its own expense, either (a) procure for Buyer the right to continue using said products, (b) replace same with equally efficient non-infringing products, (c) modify it without impairing its efficiency so it becomes non-infringing, or (d) remove said products and refund the purchase price and the transportation and installation costs thereof.
References to “Buyer” in this Section 12 include Buyer, its affiliates, directors, officers, employees, customers and their respective successors and assigns.
13. INDEMNITY AND INSURANCE - Seller shall defend, indemnify and hold harmless Buyer, its affiliates, directors, officers, employees and customers and their respective successors and assigns from any claims, suits, judgments, fees and costs (including attorney's fees) based on or arising out of the Seller’s products, services and/or the resale or use of the products purchased hereunder, including death, personal injury, or damage to property, and any settlements arising therefrom. Seller agrees to procure and maintain the following insurance coverage:
(a) Commercial General Liability insurance, endorsed to name Buyer, as an additional insured, with limits not less than $1,000,000 per occurrence, $1,000,000 Products/Completed Operations, $1,000,000 Personal/Advertising,
(b) Commercial Auto insuring all vehicles used by Seller (including all owned, hired a and non-owned vehicles), and
(c) Worker’s Compensation with statutory limits and a waiver of subrogation in favor of Buyer, and Employer’s Liability with limits not less than $500,000 each accident and $500,000 Disease – Each Employee. Evidence of such coverage, in the form of a Certificate of Insurance and providing for thirty (30) days’ notice to Buyer prior to cancellation, shall be sent to Buyer not later than seven (7) days following Seller's acceptance of this Order.
14. COMPLIANCE WITH LAWS - Where Seller is a US resident or subject to US laws, Seller shall, in the performance of this Order, comply with the provisions of the Fair Labor Standards Act, as amended, as well as the Regulations and Orders of the Department of Labor issued thereunder, Executive Order No. 11246 as amended, 29 CFR 470, 41 CFR 60-1, 60-250, 60-741, the provisions of the Occupational Safety and Health Act of 1970. In all cases, Seller shall comply with all applicable federal, state, provincial and local laws, regulations, rules and ordinances, including but not limited to the those dealing with the protection of the environment, in carrying on its business including in the performance of this Order.
15. CHEMICAL SUBSTANCE IDENTIFICATION - By acceptance of this Order, Seller certifies that any chemical substance(s) furnished pursuant to this Order has been properly labeled, and that proper information on the substance(s), e.g., material safety data sheets, have been provided to Buyer, pursuant to all applicable federal, state, provincial and local laws and regulations.
16. TERMINATION - Buyer, by written notice, may terminate this order, in whole or in part, for any reason. In the event this order is terminated as a result of Seller's default, the Seller shall be liable for all damages allowed in law or equity, including the excess cost of reprocuring similar items. If this order is terminated for the convenience of Buyer, Seller will be compensated for the purchase price of the items have been accepted by Buyer prior to the effective date of termination, including applicable taxes set forth on this Order. Other than to this extent, Buyer shall not be liable to Seller for any damages on account of its failure to accept all of the items ordered.
17. CONFIDENTIALITY/TRADE SECRETS - All specifications, data and other information furnished by Buyer, or its agents, to Seller in connection with this order remain the exclusive confidential information of Buyer, and any intellectual property therein shall remain that of Buyer, and shall be treated by the Seller as proprietary to the Buyer and shall not be disclosed or used, outside the limitation of this order, without prior written approval of the Director – Purchases, of Buyer. In addition, the purchase by Buyer of the Seller's product does not authorize the Seller to use the name of or make reference to Buyer, or use Buyer’s trademarks or trade name, for any purpose in any releases for public or private dissemination, nor shall the Seller divulge or use in any advertisement or publication any specifications, data, or other information pertaining to or relating to this usage or agreement without prior written approval of the Director - Purchases of Buyer.
18. CURRENCY - All charges and prices are to be quoted in the currency set forth on the front page of this Order, and shall include applicable taxes and/or shipping and handling charges unless otherwise expressly stated in this Order.
19. LANGUAGE - For Sellers in Canada, Buyer confirms this Agreement, as well as all other related documents, including notices, shall be in English only, unless Buyer specifically requests French correspondence. Résidents du Québec Seulement - Les parties aux présentes confirment leur volonté que la présente convention, de même que tous les documents s'y rattachant, y compris tout avis, soient rédigés en anglais seulement, à moins d'une demande expresse de l'une des parties à l'effet que les documents échangés soient rédigés en français.
20. TERMS AND CONDITIONS SUBJECT TO CHANGE - These Terms and Conditions of Sale may be amended by Seller at any time with or without notice. The most current version will be posted at www.xpedx.ca and www.xpedx.com.