STANDARD TERMS AND CONDITIONS FOR PURCHASE ORDERS
1. APPLICABLE CONTRACT PROVISIONS
a. These Standard Terms and Conditions for Purchase Orders (“Standard Terms”) and a purchase order issued by OCT in writing (the “Purchase Order and any attachments expressly incorporated herein (the foregoing, collectively, the “Offer”), constitute an offer by O. C. Tanner Recognition Company and/or its affiliates (“OCT”) to purchase the goods specified in the Purchase Order (the “Goods”) from the party listed on the Purchase Order (“Supplier”). This Offer is not an acceptance or a confirmation of any previous offer or proposal from Supplier, and this Offer shall be deemed to be a rejection and counteroffer with respect to any previous offer or proposal from Supplier.
b. Upon acceptance by Supplier of the Offer, the Offer shall become the “Agreement”. Supplier shall be deemed to have accepted the Offer by commencement of performance called for in the Purchase Order, by delivery of the Goods to OCT, by written acceptance or confirmation of the Offer or by any other act or communication constituting legal acceptance, regardless of whether such acceptance or conformation purports to state terms additional to or different from those stated herein. OCT hereby expressly objects to and rejects any such additional or different terms, and none of such terms will be deemed to be part of this Agreement. This Agreement constitutes the entire agreement between OCT and the Supplier with respect to the Goods.
2. SALE, DELIVERY AND ACCEPTANCE
a. Supplier agrees to sell, transfer and deliver the Goods to OCT (or such third party designated by OCT) for the purchase price set forth on the Purchase Order, subject to the terms and conditions set forth in this Agreement. Typographical and other clerical errors in the Purchase Order are subject to correction.
b. No charge will be allowed for boxing, crating, drayage or storage unless specifically set forth on the Purchase Order. Supplier shall properly and carefully package the Goods for shipment to secure the lowest shipment costs and to conform to the requirements of common carriers and any specifications provided by OCT.
c. Supplier shall follow all shipping and delivery instructions provided by OCT on the Purchase Order, including method of shipment and/or carrier if provided. Supplier shall be responsible for any increase in transportation charges resulting from Supplier’s failure to follow such shipping instructions. Title to and risk of loss of the Goods shall pass to OCT, depending on the delivery method set forth on the applicable Purchase Order, as follows:
(i) for Goods to be delivered via a carrier designated by OCT, upon receipt by such carrier of the Goods at Supplier’s dock;
(ii) for Goods to be delivered via a carrier designated by Supplier, upon receipt of the Goods by OCT (or the designated third party) at the location designated for delivery on the Purchase Order; or
(iii) for Goods to be delivered via a carrier designated by a third party, upon receipt by such carrier of the Goods at Supplier’s dock;
provided that any rightful rejection or revocation of any Goods by OCT or its agent shall immediately shift the risk of loss of such Goods to Supplier.
d. At any time prior to shipment of the Goods, OCT may, by written notice, suspend its purchase of the Goods or make changes in (i) the date the Goods are to be delivered to the location designated on the Purchase Order (the “Dock Date”) or the quantities of Goods ordered; (ii) applicable drawings, designs or specifications, (iii) the method of shipment or packaging or (iv) the location designated for delivery. If any such change increases or reduces the cost of, or the time required for performance of, an Order, and Supplier notifies OCT in writing within ten (10) days (except that such requirement shall be waived with respect to any reduction in cost), an equitable adjustment will be made to the price or delivery schedule corresponding to the Goods subject to such change as mutually agreed by the parties in writing. Nothing in this paragraph shall relieve Supplier from its obligations to perform under this Agreement, as changed. Where any material is made obsolete or excess as a result of any change by OCT, OCT shall have the right to prescribe the manner of disposition of such material.
e. OCT or OCT’s agent may refuse or reject any:
(i) Goods which are not according to sample or which are not specified in the Purchase Order;
(ii) Goods which are not as represented and warranted or otherwise not in compliance with the terms and conditions of this Agreement;
(iii) Shipments of less than or in excess of quantities ordered;
(iv) Shipments delivered more than thirty (30) days before or thirty (30) days after the Dock Date specified in the Purchase Order;
(v) Goods which for any reason, except payment of applicable duties and tariffs, will not be cleared for entry by the applicable customs authority; or
(vi) Goods which have quality or safety defects and/or are recalled for any reason.
f. All Goods furnished under any Purchase Order shall be subject to inspection and testing by OCT or its agents, and may be rejected and returned to Supplier when found to be defective. If a shipment, or any portion of a shipment, is determined by random sampling procedures to include Goods that are defective or otherwise subject to refusal or rejection as set forth above, the entire shipment or portion may be rejected and returned to Supplier at Supplier’s expense. At OCT’s option in its sole discretion, Supplier shall replace or issue refund for any rejected or returned Goods, including all shipping costs, at Supplier’s expense. OCT’s failure to inspect or reject any Goods, or payment for Goods, shall not relieve Supplier of any of its obligations hereunder or constitute a waiver of any of OCT’s rights hereunder.
g. Time is of the essence in Supplier’s performance of its obligations. Supplier shall immediately notify OCT in writing if Supplier’s performance is delayed or likely to be delayed. If Supplier fails or refuses to meet the Dock Date(s) specified in the Purchase Order, OCT may, without limiting its other rights and remedies, charge expedited shipping and other costs incurred by such delay to Supplier, or cancel all or part of the Purchase Order.
3. PURCHASE PRICE; PAYMENT
a. The price(s) for the Goods are as listed on the Purchase Order; provided that if at any time goods substantially of the same kind as the Goods and in comparable quantities are offered for sale or sold by Supplier to a third party at a lower price than that stated in the Purchase Order, the price set forth in the Purchase Order for such Goods shall be automatically revised to equal such lower price.
b. Unless otherwise set forth in the Purchase Order, OCT shall make all payments in Canadian Dollars and such payments shall be due within thirty (30) days of the later of (i) OCT’s receipt of a correct invoice or (ii) OCT’s acceptance of all of the Goods. OCT may set off any amount owing at any time from Supplier to OCT against any amount payable at any time by OCT.
c. Supplier agrees to allow OCT and its authorized representatives to inspect facilities and plants, and further agrees to provide OCT information and access to all records of Supplier pertaining to this Agreement for purposes of an audit of Supplier’s performance hereunder. The costs of any such audit will be paid by OCT, unless the audit reveals any nonconformance by Supplier, in which case Supplier shall promptly reimburse OCT for the reasonable costs of the audit. If the result of such audit reveals gaps or vulnerabilities that are, in OCT’s discretion, capable of remediation, the parties shall establish a schedule for Supplier to remedy its noncompliance, with no task taking more than thirty (30) days unless both parties agree to a commercially reasonable time for completion. If such gaps or vulnerabilities are, in OCT’s sole discretion, not capable of remediation within thirty (30) days, then OCT may terminate the Agreement immediately upon notice to Supplier.
4. REPRESENTATIONS AND WARRANTIES
a. Supplier represents and warrants to OCT that the Goods: (i) are free from defects in design, material, workmanship and manufacture; (ii) will conform to the applicable documentation or to other descriptions set forth in the Purchase Order; (iii) will be suitable for the purposes for which they are intended, including without limitation purposes specified to or otherwise known by Supplier; (iv) are genuine, new and unused; (v) are free from all liens, security interests and encumbrances of any type whatsoever; (vi) do not and will not infringe on any foreign or domestic patent, trade name, copyright or other similar intellectual property interests of any person; (vii) are well within any expiration date indicated on the packaging of such goods; and (viii) shall be manufactured, produced, labeled, packaged, furnished and delivered in compliance with, and otherwise comply with, all applicable federal, provincial, and municipal laws, regulations, codes and standards of Canada and the Province of Ontario, and all orders, standards, rules and regulations promulgated thereunder as may be amended, modified and/or superseded from time to time. Supplier represents and warrants to OCT that all PII shall be processed subject to the terms and conditions set forth in Section 6 of this Agreement. The foregoing warranties are in addition to all other warranties, whether express or implied and will survive deliver, inspection, acceptance or payment by OCT. Statements of Supplier made by sales agents or in advertising or promotional materials as to the quality, grade, performance and use of the goods furnished hereunder shall be express warranties of Supplier made to OCT in connection with this Agreement. Supplier agrees that applicable warranties may be passed on to the end users of the Goods without additional charge and shall remain in effect for the duration of the longer of Supplier’s normal warranty period or such period as may be set forth on the Purchase Order.
b. Supplier further represents and warrants that: (i) it has all right, power and authority to enter into this Agreement and perform its obligations hereunder; (ii) Supplier will comply with all applicable laws, regulations and ordinances; (iii) Supplier shall provide complete and accurate hazardous material data sheets in accordance with federal Hazardous Products legislation and provincial WHIMIS legislation, with each shipment of Goods, if required; and (iv) neither Supplier nor any of its employees, agents or representatives has offered or given any gratuity to any of OCT’s employees, agents or representatives with a view towards securing favorable treatment with respect thereto.
c. If Health Canada or other international, federal, provincial or local agency (the “Agency”) issues an order pursuant to the Canada Consumer Product Safety Act, or any other consumer protection law (hereinafter referred to as the “Act”) requiring either OCT or Supplier to recall, replace, repair or make refunds with respect to all or part of any Goods (a “Recall”) or where Supplier determines that a Recall is warranted prior to or without regard to any proceeding or determination by the Agency, Supplier shall do so at its expense and assume all costs (including without limitation, reimbursements to OCT for its out-of-pocket expenses) and such Recall shall be effectuated in a manner determined by Supplier with OCT’s consent (which shall not be unreasonably withheld, conditioned or delayed). For purposes of this Section 4(c), out-of-pocket expenses shall include any expense incurred by OCT relating to the Recall. In any event, Supplier shall accept return of all of OCT’s Goods involved in a Recall and Supplier shall refund to OCT all monies paid for such Goods (including all applicable shipping costs, taxes, and duties). Nothing contained in this Section shall prevent OCT from taking any actions as may be required of it under applicable law and Supplier shall reimburse OCT for all costs and expenses incurred by OCT in doing so. Supplier shall promptly notify OCT of any Recalls or threatened Recalls of any Goods.
a. “Confidential Information” means information that OCT designates as confidential or that reasonably should be understood to be confidential, proprietary or trade secret given its nature and circumstances of disclosure. Confidential Information includes, without limitation, this Agreement and its content, OCT Property, OCT customer information, drawings, data and specifications, product plans and designs, technology and technical information and business and marketing plans. “Confidential Information” shall not include any information that (i) is or becomes publicly available through no fault of Supplier; (ii) was known to Supplier prior to its disclosure by OCT; (iii) Supplier rightfully receives from a third party without a duty of confidentiality; or (iv) Supplier independently develops without reference to any Confidential Information.
b. Supplier shall keep in confidence and not disclose for its own benefit or for the benefit of any third party (except as may be required for the performance of obligations under this Agreement) the Confidential Information. Supplier shall limit disclosure of Confidential Information only to individuals who need to know the Confidential Information to perform the services and provide the Goods under this Agreement. At the expiration or termination of this Agreement or upon OCT’s request, Supplier shall deliver to OCT or, if requested by OCT, destroy (and provide written certification of such destruction) all Confidential Information.
c. Supplier may disclose the Confidential Information responsive to a request by a government agency in connection with an investigation, in response to a litigation discovery request or in response to a subpoena, subject to prompt written notice to OCT and reasonable efforts and cooperation in making such disclosure subject to a protective order or on a confidential basis.
d. Supplier acknowledges that any breach or threatened breach of the provisions in this Section 5 would cause irreparable harm, and that a remedy at law would be inadequate, and therefore agrees that OCT shall be entitled to seek injunctive relief in case of any such breach or threatened breach.
6. PERSONALLY IDENTIFIABLE INFORMATION
a. “PII” means (1) all data from or about individual persons that Supplier obtains in connection with this Agreement and (2) any information which alone or in combination with other information could identify an individual, including without limitation name, addresses, email address, phone number and order information. PII shall be treated as OCT’s Confidential Information, but will not be subject to the exceptions set forth in Sections (i) through (iv) of Section 5(a).
c. Supplier shall establish, implement, maintain and enforce administrative, physical and technical safeguards that protect the security, accuracy and privacy of PII, including without limitation against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, which safeguards shall meet or exceed industry standards. Supplier shall create, maintain and enforce a plan to respond to data incidents that may affect PII. If Supplier discovers any suspected or actual unauthorized use or disclosure of, or access to, PII, Supplier will notify OCT immediately by email to email@example.com and by phone at (801) 493-8235. Supplier, at its expense, shall provide reasonable assistance to OCT in investigating and remedying such incident and any dispute, inquiry or claim related to such incident and use best efforts to prevent any further unauthorized use, disclosure or access. Supplier shall not contact individuals regarding such incident without the prior written consent of OCT.
d. All PII shall be corrected or amended as necessary to comply with OCT’s obligations under the General Data Protection Regulation (“GDPR”) and PIPEDA. Supplier shall immediately dispose of all PII which is not necessary for Supplier to perform under this Agreement. Supplier shall dispose or return all PII, and any copies thereof to OCT (as requested by OCT) upon termination or expiration of this Agreement. Notwithstanding any other provision under this Agreement, (i) OCT may request Supplier to return or dispose of PII of selected individuals at any time, and Supplier shall use its best efforts to return or delete such PII; and (ii) Supplier shall dispose of all PII no later than six (6) months after receipt of the PII from OCT. All PII disposed of by Supplier shall be shredded, overwritten or otherwise made unreadable or undecipherable through any means.
e. Supplier shall train all individuals authorized to use and disclose PII no less than annually on their responsibilities to protect, safeguard, limit disclosure of and dispose of PII. Supplier shall require that such individuals be bound by appropriate obligations of confidence.
f. Supplier may not subcontract its material obligations, in whole or in part, that involve any use or disclosure of PII without OCT’s prior written consent. In the event that Supplier engages a subcontractor that will use or disclose PII, Supplier shall comply with the following:
§ Subcontractors of Supplier shall comply with the same responsibilities and restrictions as set forth in this Agreement.
§ Supplier shall remain responsible and liable for any and all acts and omissions of each subcontractor to the same extent as if such acts or omissions were by Supplier;
§ OCT’s consent to any such subcontractor shall not relieve Supplier of its representations, warranties or obligations under this Agreement;
§ Supplier shall obtain a written agreement in form and substance acceptable to OCT, giving OCT rights and protections at least equal to those set forth in this Agreement, a fully executed copy of which agreement Supplier shall promptly provide to OCT on OCT's request.
g. Upon the request of OCT, Supplier agrees to assist OCT : (i) to the extent possible and considering the nature of the processing, in its efforts to comply with its obligations under PIPEDA and its obligations under GDPR to respond to data subjects exercising their rights (as set forth in Article 12-23 of GDPR); (ii) considering the nature of the processing and the information available to Supplier, in its efforts to comply with its obligations set forth in Articles 32-36 of GDPR. Supplier agrees to make available to OCT all information necessary to demonstrate its compliance with the obligation set forth in this Agreement and reasonably allow for, and contribute to, audits and/or inspections conducted by OCT or other auditor mandated by OCT.
a. If OCT supplies, furnishes or pays for any tangible or intangible property used in connection with this Agreement (the “OCT Property”): (i) all right, title and interest in and to the OCT Property shall vest in OCT; (ii) Supplier shall return or deliver such OCT Property to OCT immediately upon OCT’s request; (iii) Supplier shall not use such OCT Property for any purpose other than to fill orders from OCT; and (iv) Supplier shall clearly identify such OCT Property as property of OCT and shall keep such OCT Property separate from all of Supplier’s other materials or tools. Supplier shall not remove, dispose or pledge as security any OCT Property without OCT's prior written consent. Supplier shall be liable for any loss or damage to the OCT Property other than reasonable wear and tear. Upon OCT’s request, Supplier shall supply OCT with a detailed statement of the OCT Property.
b. Supplier hereby grants to OCT a nonexclusive, worldwide license (i) to modify, display, reproduce and publish all images, text or information supplied by Supplier (collectively, the “Supplier Content”) in any media in connection with the advertisement, marketing or promotion of the Goods, OCT and/or OCT’s products and services; and (ii) to display, reproduce and publish Supplier’s and all Goods-related trademarks and logos in any media in connection with the advertisement, marketing or promotion of the Goods.
a. OCT shall have the right to terminate this Agreement or all or any part of the Purchase Order without cause, upon notice in writing to Supplier. OCT shall have no liability for termination of this Order provided that OCT gives written notice (including by e-mail or other electronic transmission) to Supplier at any time prior to shipment of such Goods. Notwithstanding the foregoing sentence, if Goods are to be specifically manufactured for OCT hereunder: (i) upon receipt of such termination notice, Supplier immediately shall stop work, terminate any subcontracts and place no further orders for materials to complete such work; (ii) Supplier shall deliver to OCT all completed Goods, and OCT shall pay for all such Goods accepted by OCT in accordance with this Agreement; and (iii) an equitable adjustment shall be made to cover Supplier’s actual cost (excluding profit) for work-in-process and raw materials; provided that (x) Supplier shall use best efforts to return, re-use or sell any raw materials and, if approved by OCT, work-in-progress, and/or otherwise mitigate any of Supplier’s losses; (y) Supplier shall submit to OCT a written claim, with supporting documentation, within sixty (60) days following such termination for any unavoidable costs resulting from such termination; and (z) in no event shall OCT’s liability exceed the total purchase price for finished Goods as set forth on the Purchase Order, less amounts previously paid by OCT.
b. OCT may terminate this Agreement or cancel all or any part of the Purchase Order if Supplier: (i) repudiates or breaches any terms of this Agreement; (ii) fails to deliver the Goods on the terms and conditions set forth herein; (iii) fails to make progress so as to endanger the timely and proper delivery of the Goods, and does not correct such failure within five (5) days after receipt of written notice from OCT. If OCT terminates any purchase obligations pursuant to Section 8(b), OCT shall have no obligation to Supplier with respect to the terminated purchase obligations, and OCT’s liability shall be limited to portion of accepted Goods at the price specified on the Purchase Order.
c. In the event of any proceeding, voluntary or involuntary, in bankruptcy or insolvency by or against Supplier, or in the event of the appointment with or without Supplier’s consent of a receiver or an assignee for the benefit of creditors, OCT may without liability, at its option, terminate this Agreement or cancel any Purchase Order in whole or in part.
d. Sections 1 and 4 – 10 shall survive expiration or termination of this Agreement.
9. INDEMNIFICATION; INSURANCE
a. Supplier shall indemnify, defend and hold harmless OCT and its affiliates, and their respective officers, directors, agents, employees and customers from any loss, damage, liability, claim, demand or cost (including reasonable attorneys’ fees) arising out of or related to: (i) Supplier’s breach of its representations, warranties or obligations set forth herein, (ii) any actual or alleged infringement of any intellectual property rights (including, without limitation, patents, copyrights, trademarks, service marks, trade names, trade dress, proprietary logos or insignia or other business identifiers) by the Goods, the Supplier Content or any technology or system used by Supplier in its performance hereunder; (iii) an incident or data breach of PII received by Supplier from OCT under this Agreement or (iv) any other injury, harm or damage caused by or in connection with the Goods or other information, materials or items provided or made available by Supplier under this Agreement or the provision thereof by Supplier, its employees or contractors.
b. Except for a breach by Supplier its obligations set forth in Section 5 or Section 6 or with respect to Supplier’s indemnification obligations, neither party shall be liable to the other for any indirect, consequential, exemplary, special, incidental, multiple or punitive damages even if advised of the possibility of such damages. The liability of OCT for any loss or damages suffered by Supplier in connection with this Agreement shall not exceed the amount paid to Supplier for Goods sold under the applicable Purchase Order.
c. Supplier shall procure and maintain, for the term of this Agreement plus six (6) months thereafter, insurance coverages with terms and conditions and limits that are reasonable and prudent in the context of Supplier’s business in general and this Agreement in particular. If any insurance is written on claims-made basis, the policy(ies) shall be maintained during the entire period of this Agreement with a retroactive date concurrent with or preceding the effective date of this Agreement, and for a period of not less than three (3) years following the termination or expiration of this Agreement.
a. Supplier shall not advertise, issue any press release or make any other similar public announcement with regard to this Agreement or the relationship of the parties without the prior written consent of OCT.
b. Neither party will be responsible for delays resulting from causes beyond the reasonable control of such party, including without limitation fire, explosion, flood, war, strike, or riot, provided that the nonperforming party (i) gives prompt written notice to the other party of the reason for the delay; and (ii) uses commercially reasonable efforts to avoid or remove such causes of nonperformance and continues performance under this Agreement with reasonable dispatch whenever such causes are removed. If such delay continues for fifteen (15) or more days, the other party shall have the right to terminate this Agreement upon notice to the non-performing party.
c. The parties are independent contractors and will have no power or authority to assume or create any obligation or responsibility on behalf of each other. This Agreement will not be construed to create or imply any partnership, agency or joint venture.
d. Supplier may not subcontract, delegate or assign this Agreement or any of its rights or obligations hereunder without OCT’s written consent; provided that Supplier may assign this Agreement upon a merger, sale of all or substantially all of its assets or similar reorganization.
e. This Agreement sets forth the entire understanding between the parties with respect to the subject matter hereof, superseding any prior agreements and communications (both written and oral) regarding such subject matter. This Agreement may not be amended, modified or supplemented except by a written document executed by duly authorized representatives of each party. In the event of any conflict or ambiguity among the Purchase Order and these Terms and Conditions, the Purchase Order shall control as to the specifications of the Goods and the following shall be the order of control in all other respects: these Terms and Conditions and the Purchase Order. All captions, titles or section headings of this Agreement are for ease of reference only, shall not affect the interpretation or construction of any provisions of this Agreement, and shall not be deemed part of this Agreement. If any provision of this Agreement is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this Agreement will not be affected. In resolving any dispute or construing any provision hereunder, there shall be no presumptions made or inferences drawn because one of the parties drafted the Agreement and each party waives any rights under any law that would require the interpretation of any ambiguities in this Agreement against the party that drafted it.
f. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Each party hereby irrevocably consents to the exclusive jurisdiction of the provincial courts of the province of Ontario with respect to any dispute arising under or in connection with this Agreement. No claim, action or demand arising out of the transactions under this Agreement may be brought by Supplier more than one (1) year after such cause of action has accrued.
g. The failure of either party at any time to require performance by the other party of any one or more of the provisions of this Agreement shall not affect the right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any term or provision of this Agreement be interpreted or held to be a waiver of any succeeding breach of such term or provision or as a waiver of the term or provision itself.
h. All notices, consents, or other communications required or desired to be given hereunder shall be in writing and addressed to the parties as set forth on the Purchase Order and, in the case of OCT, to CSC@octanner.com , or to such other address as either party may from time to time notify the other party of in accordance with this Section 10(h). Such notice shall be deemed given when hand delivered, sent by telecopy or telefax, or other electronic transmission service, provided a confirmation copy is also sent by first class mail, return receipt requested, or, if mailed, five (5) business days after the date of mailing.