Updated Dec 14 2018
Standard Terms & Conditions of Purchase
These terms and conditions of purchase (“Agreement”) shall govern all orders for products and/or services (“Products”) resulting from any purchase order issued by North Inc. or any of its affiliates (collectively “North”) (“Purchase Order”) to the party listed as the supplier on the Purchase Order (“Supplier”), unless a duly authorized signatory of North and Supplier have prior to the date of the Purchase Order entered into a written supply agreement for the Products. IN THE EVENT ANY ACCEPTANCE OF THE PURCHASE ORDER OR OTHER COMMUNICATIONS OF ANY KIND CONTAIN ANY ADDITIONAL TERMS OR CONDITIONS OR CONFLICT WITH THIS AGREEMENT, THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT SHALL GOVERN EXCLUSIVELY, EXCEPT TO THE EXTENT EXPRESSLY SET OUT IN A WRITTEN AMENDMENT TO THIS AGREEMENT SIGNED BY A DULY AUTHORIZED SIGNATORY OF THALMIC AND SUPPLIER. Any purchase by North is made on a non-exclusive basis, with no commitment by North to purchase any minimum amount of Products. Supplier acknowledges and agrees that North may, from time to time, enter into arrangements with other entities to provide North with equipment, products and/or services the same as or similar to the Products, and that nothing precludes North from doing so or commercializing any of North’s products or services. Delivery of Products to North shall be deemed acceptance of the terms and conditions of this Agreement by Supplier.
ORDERS. Supplier shall confirm acceptance of a Purchase Order to North within two (2) Business Days of receipt. A Purchase Order shall be deemed accepted by Supplier if no written notice of rejection is provided to North within five (5) Business Days of receipt by Supplier of a Purchase Order. “Business Days” means any weekday that is not designated as a public holiday in the Province of Ontario, Canada.
PRICES; TAXES. The purchase price (including all applicable taxes) for Products shall be as set out in a Purchase Order (“Purchase Price”). North shall have no obligation to pay invoices for Products at any increased price or additional charge unless such item is agreed to in writing by North. All payments shall be conditional upon acceptance by North of the Products.
INVOICING. No invoice will be issued prior to shipment of Product. Payment terms are net sixty (60) days from receipt of an undisputed invoice. Invoices shall: (i) be sent to the billing address displayed on Purchase Order; (ii) show Purchase Order number and Purchase Order line number; (iii) match Purchase Order description; (iv) not exceed Purchase Order quantity or amount; and (vi) where possible, avoid partial billing.
DELIVERY. Unless otherwise specified in the Purchase Order, Supplier will deliver all Products FCA (Incoterms 2010) destination specified in the Purchase Order, by the delivery date set forth in the Purchase Order (“Delivery Date”). Supplier shall be liable to pay North liquidated damages in respect of such delay in delivery in the amount of two percent (2%) of the Purchase Price per Product impacted by the delay for each day of delay, following the seventh (7th) day following the Delivery Date. Title and risk of loss or damage to the Products shall pass to North when Supplier delivers the Products in accordance with the delivery terms. Receipt of Products by North does not constitute North’s acceptance of the Products. If North rejects and returns a Product, risk of loss or damage for such Product shall pass to Supplier when North delivers the Product to a carrier. If Supplier cannot meet a delivery date specified in the Purchase Order, Supplier will promptly notify North in writing and propose a revised date and North may, at its option: (i) cancel all or any portion of a Purchase Order without liability to Supplier and Supplier will promptly refund any amounts paid for such cancelled Purchase Order or portion thereof by North; (ii) require Supplier to deliver Products (or part thereof) using priority freight delivery at Supplier’s sole cost; and/or (iii) exercise all other available remedies. North is not obligated to accept early or partial delivery of Products. No substitution may be made to Products without North’s written consent. Supplier will only be deemed to have met a delivery date specified in a Purchase Order if the relevant Products meet all applicable specifications.
PACKING, MARKING AND SHIPMENT. Supplier shall pack and mark the Products as requested by North or, so as to reasonably ensure that the Products are delivered in a secure and undamaged fashion. Damage discovered after transfer of title that is determined to be a result of faulty packaging or handling by Supplier shall be Supplier’s responsibility. Unless otherwise provided, the Purchase Price is inclusive of all charges and expenses for shipping, containers, packing and crating. North’s count shall be accepted as correct if any packing slip quantity is in dispute or the packing slip is omitted. Each delivery container must be labeled and marked to identify contents without opening and all boxes and packages must contain packing sheets listing contents. The Purchase Order number must appear on all shipping containers, packing sheets, delivery tickets, and bills of lading, and the the country of origin shall be clearly identified for all items.
INSPECTION, ACCEPTANCE AND REJECTION. All Products provided hereunder shall be subject to inspection and testing by North. North shall be entitled to examine, test and determine if Products are acceptable, complete, and meet all material and functional requirements and specifications stated or referenced in the Purchase Order, or any other documents referenced therein or provided by North to Supplier from time to time (“Specifications”). Unless stated otherwise, “Acceptance” by North occurs upon acknowledgement by North that the Products, as delivered, tested, and installed, meet all Specifications, applicable requirements and qualifications. Supplier will correct and re-deliver the rejected Products within ten (10) Business Days after receipt of a rejection notice from North. North will not be obligated to accept or pay for any Products until Supplier has corrected them to North’s reasonable satisfaction. Supplier will promptly refund the full amount paid or prepaid for any rejected Products. Supplier will be liable for any additional labour and other costs required in connection with handling and/or rectifying such defective Products, including, without limitation, additional expediting or freight charges.
IMPORT/EXPORT COMPLIANCE. Supplier shall comply with all applicable laws and regulations relating to export, import, and supply of Products. Supplier agrees: (i) to provide North upon request, with all information, including technical information, necessary for North to apply for and obtain any export, re-export, import, supply, and use permit, declaration, and authorization (collectively, an “Export Permit”); and (ii) to provide commercially reasonable assistance to North in obtaining any Export Permit.
WARRANTIES. Supplier warrants to North that Products will at the time of delivery be free and clear of all liens and encumbrances. Unless otherwise specified in the Purchase Order, Supplier further warrants that during a period of two (2) years from the date of Acceptance (the “Warranty Period”) the Products shall be free from defects in design, material and workmanship and shall conform to the Specifications for such Products. If North has furnished performance requirements for the Products purchased hereunder, Supplier further warrants that such Products shall be fit and sufficient for the purposes of which North intends to use them. Supplier further represents and warrants that: (i) accepting and/or fulfilling the Purchase Order will not cause Supplier to breach any other agreements to which it is a party; (ii) the Products will be new and comprised of new materials when delivered; (iii) the Products, including any portion thereof or any intended combination with other hardware or software, or the sale, offer for sale, use, or import or export thereof, will not infringe any patent, copyright, trademark, trade secret, or other proprietary right of a third party; and (iv) North will not be required to license or sublicense any third party software in connection with the Products. If Supplier is providing Products comprised of or including services, Supplier represents and warrants that: (a) Supplier and its personnel who will be performing the services have the necessary knowledge, experience and skills to perform such services; (b) the services will be performed in a competent and professional manner; and (c) the services will be performed in accordance with this Agreement. These warranties shall survive any inspection, acceptance, payment, consignment, sale or resale of the Products or offering provided by North. Supplier agrees that the foregoing warranties will inure to the benefit of North, its successors, assigns, third-party manufacturers, suppliers, contractors and customers.
REMEDIES FOR DEFECTIVE PRODUCTS. North shall be entitled to select one or more of the following remedies in connection with Defective Products: (i) have Supplier compensate North for its costs and expenses incurred in connection with the analysis and resolution of the issue and any resulting impact on any North product or offering, including, without limitation, any recall of impacted North products; (ii) have Supplier accept the return of such Defective Products pursuant to Section 10 below; (iii) have Supplier, or a North-designated third party, repair the Defective Products and recover from Supplier all repair-related costs and expenses; (iv) procure similar goods in substitution and charge Supplier for any costs arising from the procurement and use of such substitutes; and (v) have Supplier provide a written issue or defect analysis report and a correction plan. “Defective Products” means Products that: (a) fail (or because of a known issue or defect North reasonably expects to fail) to conform with or operate according to the warranties set forth in this Agreement, applicable Specifications, or a consumer’s reasonable expectations; (b) fail to comply with any applicable law or regulation; or (c) create a risk of bodily injury or death or property damage. All costs associated with Defective Products shall be Supplier’s sole cost (including without limitation any expenses and penalties incurred by North in recalling Products delivered to North’s customers, suppliers or contractors, and delivery to North of corrected or replaced Products). Products corrected or replaced shall be subject to all warranty and indemnification provisions of this Agreement in the same manner and to the same extent as Products originally delivered under this Agreement.
RETURN OF PRODUCTS. Supplier shall accept the return of any Defective Products by North and: (i) ship replacement Products on the same day North returns the Products; or (ii) upon request by North, credit or refund North the Purchase Price, together with any costs or penalties incurred by North in returning Products.
LIMITATION OF LIABILITY. IN NO EVENT SHALL NORTH BE LIABLE TO SUPPLIER FOR, AND SUPPLIER HEREBY WAIVES ANY DIRECT, INDIRECT, ECONOMIC, SPECIAL, COMMERCIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF BUSINESS REVENUE OR EARNINGS, LOST DATA, DAMAGES CAUSED BY DELAYS, OR A FAILURE TO REALIZE EXPECTED SAVINGS) ARISING OUT OF OR IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, WHETHER OR NOT SUCH DAMAGES COULD REASONABLY BE FORESEEN OR THEIR LIKELIHOOD HAS DISCLOSED TO THALMIC. The limitations, exclusions and disclaimers set out in this Agreement shall apply: (a) whether an action, claim or demand arises from a breach of warranty or condition, breach of contract, tort (including negligence), strict liability or any other kind of civil or statutory liability connected with or arising out of this Agreement; and (b) to North and its affiliates as well as their respective directors, officers, employees, contractors, and agents. The limitations, exclusions, and disclaimers set forth in this Agreement shall not apply only if and to the extent that the laws of a competent jurisdiction require liabilities beyond and despite these limitations, exclusions, and disclaimers.
INDEMNIFICATION. Supplier agrees to indemnify, defend, and save harmless North, and its affiliates, and their respective officers, directors, employees, agents, licensors, subcontractors, distributors, customers, assigns and successors (“North Indemnitees”), from and against all claims, losses, liabilities, damages, judgments, settlements, and expenses (including, without limitation, any reasonable legal fees) (“Claims”), based on arising out of or in any way related to: (i) any negligent act or omission by or any willful misconduct on the part of Supplier or Supplier personnel or subcontractors in the performance of this Agreement; (ii) any bodily injury, personal injury, death or property damage caused by the Products; (iii) the breach of any representation, warranty, covenant or obligation under this Agreement; or (iv) the delivery, condition, manufacture, purchase, sale, use or operation of the Products. Upon request by North, Supplier shall assume on behalf of North, the defense of any court or agency action that may be brought against a North Indemnitee under this indemnity.
INTELLECTUAL PROPERTY WARRANTY. Supplier warrants that the Products and any deliverables and their sale, use, or existence, whether alone or in combination, will not infringe any patent, copyright, trademark, trade secret or other intellectual property right (“Infringement”). If the sale, use, or existence of any Products or deliverables constitutes Infringement and their use is enjoined or threatened to be enjoined, North may, at its sole option, require Supplier either to procure for North the right to continue using such Products and/or deliverables, to modify such Products and/or deliverables so that they become non-infringing or to remove such Products and/or deliverables and refund to North the Purchase Price, and in addition pursue any remedy or remedies available at law or in equity. Supplier will indemnify, hold harmless and, upon North’s request, defend North Indemnitees from and against all Claims relating to or arising from an allegation that any Products produced or provided by Supplier to North and/or any deliverables, or any portion thereof, on their own or in combination with other products, or when used, misappropriate, violate or infringe any Intellectual Property Rights. If a third party claims that the Products and/or deliverables themselves, or when used, misappropriated, violated or infringed an Intellectual Property Right, Supplier will, in addition to its obligations under this Section, promptly notify North in writing about the Claim and, at its own expense, and in North’s sole discretion,: (i) obtain for North and its customers, suppliers and/or contractors, the right to continue to use and provide the Product or deliverable; (ii) modify the Product and/or deliverable so they are non-infringing; (iii) replace the Product and/or deliverable with non-infringing ones; or (iv) cease providing the infringing Products and/or deliverables, accept the return of infringing Product and/or deliverable, refund any amounts paid by North therefor, and relieve North of any further obligations relating thereto, including for amounts incurred but not yet paid for. “Intellectual Property Rights” means the rights in and to all patents and patent applications claiming any inventions or discoveries made, developed, conceived, or reduced to practice, including all divisions, substitutions, continuations, continuation-in-part applications, and reissues, re-examinations and extensions thereof; (ii) copyrights; (iii) unpatented information, trade secrets, data, or materials; (iv) mask work rights; and (v) any other intellectual or other proprietary rights of any kind now known or hereafter recognized in any jurisdiction.
CONFIDENTIAL AND PROPRIETARY INFORMATION. Supplier shall keep all confidential, or proprietary information provided to Supplier under this Agreement (“Confidential Information”) confidential, and unless authorized by North in writing, only use such Confidential Information and other items furnished or disclosed to Supplier by North hereunder (“North Items”) to the extent necessary to fulfill its obligations under a Purchase Order. Supplier shall not sell, destroy or otherwise dispose of any North Items. Supplier shall not without the prior written consent of North in any manner advertise or publish the fact that Supplier has furnished or has contracted to furnish to North the Products. Upon completion of all work under this Agreement or termination of this Agreement, Supplier shall, upon the demand of North, promptly return to North all Confidential Information and North Items together with all copies or reproductions then in Supplier’s possession or control, or in North’s sole discretion destroy and certify the destruction thereof to North.
OWNERSHIP. North shall be deemed the exclusive owner of all deliverables in connection with the Products (“Deliverables”), including all Intellectual Property Rights therein. Supplier represents and warrants that the Deliverables will be as a result of original developments, and Supplier will not knowingly incorporate into the Deliverables any virus or other harmful code, or any intellectual property of any other person, firm, corporation or other entity, or any public software, without the express written consent of North. Supplier hereby assigns to North all right, title and interest throughout the world and universe, including without limitation, all copyrights, trade-marks, trade secrets, patent rights, and any other Intellectual Property Right in and to Deliverables, in perpetuity and without further compensation, free and clear of all liens, security interests and encumbrances whatsoever. Supplier hereby waives any moral rights that it may have in the Deliverables, and shall ensure that its employees waive any rights that they may have in Deliverables.
DEFAULT. In the event Supplier: (i) is insolvent or makes a general assignment for the benefit of creditors or admits in writing its inability to pay debts as they mature or if a trustee or receiver of Supplier or of any substantial part of Supplier’s assets is appointed by any court or if a proceeding is instituted under any provision of any applicable bankruptcy and insolvency legislation or by or against Supplier or if Supplier fails, or appears to be unable, to perform any of its obligations in accordance with the terms and conditions of this Agreement; and (ii) Supplier is in breach of its obligations under this Agreement and fails to remedy such breach within seven (7) days or receipt of written notice from North (where such breach is in connection with obligations relating to confidentiality, security, consumer protection, safety, data protection or Intellectual Rroperty Rights, the remedy period shall be two (2) days), North may cancel this Agreement in whole or in part and may pursue any further remedies available at law or in equity. For certainty, late deliveries, deliveries of Products which are defective or which do not conform to the Purchase Order, and failure to provide North, upon request, of adequate assurances of future performance shall be deemed causes allowing North to terminate a Purchase Order for cause. No waiver by North of a breach by Supplier of any provision of this Agreement shall constitute a waiver of any other breach or provision.
CANCELLATION. In addition to any other provision contained herein for the cancellation or termination of this Agreement, North may cancel this Agreement or any Purchase Order or part thereof, solely at its convenience, in whole or in part, by written notice to Supplier. In the event of such cancellation, North agrees to pay to Supplier the actual proven net cost to Supplier incurred in good faith for Products ordered under a Purchase Order prior to Supplier’s receipt of the cancellation notice, provided, however, that in no event shall North be liable for Supplier’s commitments or production arrangements in excess of the amount, or in advance of the time, necessary to meet North’s delivery schedule specified in any Purchase Order.
RECORDS AND AUDITS. To permit North to confirm Supplier’s compliance with this Agreement, Supplier shall, during the term of this Agreement and for a period of two (2) years thereafter, keep accurate records respecting the Products provided under this Agreement in accordance with standard business practices in the industry and generally accepted accounting principles, and permit independent auditors to inspect, during such period such records from time-to-time on behalf of North for purposes of confirming compliance with this Agreement. North, for itself and its customers where North has an audit obligation to its customers or other legal or statutory obligations, is permitted to enter Supplier’s premises or other facilities where Products are manufactured, tested, or stored, including Supplier’s subcontractors that perform such activities for Supplier, upon reasonable notice and during regular business hours, to audit and inspect the quality of the design, manufacturing, testing and storage of the Products and Supplier’s compliance under this Agreement. Where North discovers any failure to comply with quality, process or compliance obligations as provided under this Agreement, Supplier shall be responsible at its own costs to correct such findings.
COMPLIANCE WITH LAWS. Supplier shall comply with all applicable laws, and regulations in providing Products and otherwise fulfilling its obligations under this Agreement. In the event Products involve any risk of injury or death to persons or damage to property, Supplier will provide North with a written description of the nature and extent of such risk, including a description of any precautions which should be taken to minimize risk.
INDEPENDENT CONTRACTORS. Supplier and North’s relationship under this Agreement is one of independent contractors, and nothing contained in this Agreement shall be construed to create or imply a joint venture, partnership, principal-agent, or employment relationship between North and Supplier.
ASSIGNMENT, SUBCONTRACTING AND SUCCESSION. Supplier shall not assign or subcontract or purport to assign or subcontract any of Supplier’s rights or obligations under this Agreement without North’s prior written consent. In the event North authorizes the use of subcontractors by Supplier, Supplier shall be liable for such subcontractors and such subcontractors working on North premises shall be required to comply with all local, state, province or country laws and regulations governing workplace safety and hazardous substances and materials usage.
GOVERNING LAW AND JURISDICTION. This Agreement shall be governed by and construed under the laws of the Province of Ontario and the parties consent to the exclusive jurisdiction of the courts located in the Province of Ontario.
SURVIVAL. Any provision of this Agreement which expressly states that it is to continue in effect after termination or expiration of this Agreement, or which by its nature would survive the termination or expiration of this Agreement.