1. Applicability.
(a) This purchase order is an offer by [AXIOM EQUIPMENT INC.] (“Buyer”) for the purchase of the goods specified on the face of this purchase order (the “Goods”) from the party to whom the purchase order is addressed (“Seller”) in accordance with and subject to these terms and conditions (these “Terms”; together with the purchase order, this “Order”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the purchase of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
(b) This Order, together with any documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to this Order, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations, and warranties, and communications, both written and oral, with respect to the subject matter of this Order. This Order expressly limits Seller’s acceptance to the terms of this Order. These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Seller’s general terms and conditions of sale or any other document issued by Seller in connection with this Order.
(c) These Terms apply to any repaired or replacement Goods provided by Seller hereunder.
(d) Buyer is not obligated to any minimum purchase or future purchase obligations under this Order.
2. Acceptance. This Order is not binding on Buyer until Seller accepts this Order in writing. If Seller does not accept this Order in writing within fifteen (15) days of Seller’s receipt of this Order, this Order will lapse. Buyer may withdraw this Order at any time before it is accepted by Seller.
3. Delivery Date. Seller shall deliver the Goods in the quantities and on the date(s) specified in this Order or as otherwise agreed in writing by the parties (the “Delivery Date”). Timely delivery of the Goods is of the essence. If Seller fails to deliver the Goods in full on the Delivery Date (a “Delay”), (a) Seller shall pay to Buyer an amount equal to $1,000 CAD or 2% of the total Order value, whichever is greater, for each [business day] the Delay continues (the “Delay Fee”); (b) Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s Delay; and (c) Buyer may, at its sole election, terminate this Order immediately by providing written notice to Seller. The parties intend that the Delay Fee under this Section 3 constitute compensation and not a penalty.
4. Quantity. If Seller delivers more than the quantity of Goods ordered, Buyer may reject all or any excess Goods. Any such rejected Goods shall be returned to Seller at Seller’s risk and expense. If Buyer does not reject the Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the Price for the Goods shall be adjusted on a pro-rata basis.
5. Delivery Location. All Goods shall be delivered to the address specified in this Order (the “Delivery Location”) during Buyer’s normal business hours or as otherwise instructed by Buyer.
6. Shipping Terms. Delivery of the Goods shall be made in accordance with the terms on the face of this Order. Seller shall give written notice of shipment to Buyer when the Goods are delivered to a carrier for transportation. Seller shall provide Buyer all shipping documents, including the commercial invoice, packing list, air waybill or bill of lading and any other documents necessary to release the Goods to Buyer within one (1) business day after Seller delivers the Goods to the transportation carrier. The Order number must appear on all shipping documents, shipping labels, bills of lading or air waybills, invoices, correspondence, and any other documents pertaining to the Order.
7. Title and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the Goods to the Delivery Location. Seller bears all risk of loss or damage to the Goods until delivery of the Goods to the Delivery Location.
8. Packaging. All goods shall be packed for shipment according to Buyer’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition and in accordance with applicable law and industry standards. Seller shall provide Buyer with shipment documentation showing the contract reference number, the quantity of pieces in the shipment, the number of cartons or containers in the shipment, Seller’s name, the bill of lading number and the country of origin. Seller must provide Buyer prior written notice if it requires Buyer to return any packaging material. Any return of such packaging material shall be made at Seller’s sole cost and expense.
9. Inspection and Rejection of Non-Conforming Goods. Buyer has the right to inspect the Goods for a period of thirty (30) days following the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are non-conforming or defective. If Buyer rejects any portion of the Goods, Buyer has the right, effective upon written notice to Seller, to: (a) rescind this Order in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If Buyer requires replacement of the Goods, Seller shall, at its expense, promptly replace the non-conforming Goods and pay for all related, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate this Order for cause pursuant to Section 21. Any inspection or other action by Buyer under this Section 9 shall not reduce or otherwise affect Seller’s obligations under this Order, and Buyer shall have the right to conduct further inspections after Seller has carried out its remedial actions.
10. Price. The price of the Goods is the price stated in this Order (the “Price”). Unless otherwise specified in this Order, the Price includes, as applicable, all packaging, transportation costs to the Delivery Location, insurance, customs duties and fees and applicable taxes, including, but not limited to, all, harmonized sales tax, goods and services tax, provincial sales tax, value added tax, use or excise taxes. No increase in the Price is effective, whether due to increased material, labour or transportation costs or otherwise, without the prior written consent of Buyer.
11. Tariffs.
(a) Seller shall be responsible for maintaining the “Country of Origin” of the Goods as the country mutually agreed upon by the parties and shall not take any steps in sourcing the raw materials or parts for the manufacturing process that changes the “Country of Origin” of the Goods. Seller shall only be permitted to change the “Country of Origin” of the Goods with Buyer’s written consent, which may be withheld in Buyer’s sole discretion. Any unapproved changes made by Seller to material sourcing which results in a tariff or trade restriction on the Goods shall be at Seller’s sole cost and expense.
(b) In the event that any law introduces a new tariff or trade restriction on the Goods, the parties shall review such tariff or trade restriction and mutually agree in writing to either (i) accept such tariff or trade restriction and adjust the Price as necessary to incorporate such tariff or trade restriction; or (ii) cancel this Order.
(c) In the event that Seller provides, in compliance with Section 11(a), a bill of materials (a “BOM”)along with sourcing details for this Order where the BOM or sourcing deviates from any originally agreed-upon BOM or sourcing arrangement, it shall be the responsibility of Buyer to evaluate whether such changes impact applicable tariffs. Upon Buyer’s acceptance of the revised BOM and sourcing, all associated tariff risks shall transfer to Buyer. Notwithstanding the foregoing, if Buyer declines the proposed revisions the tariff risk shall remain solely with Seller.
12. Most-Favoured Nation. Seller represents and warrants that the price for the Goods is the lowest price charged by Seller to any of its external buyers for similar volumes of similar Goods. If Seller charges any other buyer a lower price, Seller must apply that price to all Goods under this Order. If Seller fails to meet the lower price, Buyer, at its option, may terminate this Order without liability pursuant to Section 21.
13. Payment Terms. Seller shall issue an invoice to Buyer on or any time after the completion of delivery of the Goods and only in accordance with these Terms. Buyer shall pay all properly invoiced amounts due to Seller within forty-five (45) days after Buyer’s receipt of such invoice, except for any amounts disputed by Buyer in good faith. All payments hereunder must be in Canadian dollars. In the event of a payment dispute, Buyer shall deliver a written statement to Seller no later than the date payment is due on the disputed invoice listing all disputed items and providing a reasonably detailed description of each disputed item. Amounts not so disputed are deemed accepted and must be paid, notwithstanding disputes on other items, within the period set forth in this Section 13. The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under the Order notwithstanding any such dispute.
14. Set-Off. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller.
15. Conditions and Warranties. Seller warrants to Buyer that for a period of twelve (12) months from the Delivery Date, or such longer period mutually agreed to by the parties in writing for this Order, all Goods will: (a) be free from any defects in workmanship, material and design; (b) conform to applicable specifications; (c) be fit for their intended purpose and operate and perform as intended; (d) be merchantable; (e) be free and clear of all liens, security interests or other encumbrances; and (f) not infringe or misappropriate any third party’s patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance, or payment of or for the Goods by Buyer. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the non-compliance of the Goods with the foregoing warranties. If Buyer gives Seller notice of non-compliance with this Section 15, Seller shall, at its own cost and expense, promptly replace or repair the defective or non-conforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or non-conforming Goods to Seller and the delivery of repaired or replacement goods to Buyer and labour and travel costs at Buyer’s current hourly rates for any repairs made by Buyer to restore the Goods to working condition.
16. Product Defects / Recall. In addition to the warranty provided for in Section 15, if Seller or any governmental authority determines that any goods sold by Seller: (a) are defective (whether in workmanship, material, design or otherwise); (b) are not compliant with applicable laws, regulations or ordinances; (c) are not fit for their intended purpose and/or do not operate or perform as intended; or (d) have a systematic failure (a “Defect”), Seller shall promptly notify Buyer of the Defect. At Buyer’s option and Seller’s sole cost, Seller shall promptly either repair or replace, or credit or refund the Price for any Goods affected by the Defect. Seller is liable for all of Buyer’s costs associated with the Defect.
17. General Indemnification. Seller shall defend, indemnify and hold harmless Buyer and Buyer’s parent company, their subsidiaries, affiliates, successors, or assigns and their respective directors, officers, shareholders, and employees and Buyer’s customers (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost, or expense, including reasonable legal and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) relating to, arising out of or occurring in connection with the products purchased from Seller or Seller’s negligence, wilful misconduct, or breach of the Terms. Seller shall not enter into any settlement without Buyer’s or Indemnitee’s prior written consent.
18. Intellectual Property Indemnification. Seller shall, at its expense, defend, indemnify, and hold harmless Buyer and any Indemnitee against any and all Losses arising out of or in connection with any claim that Buyer’s or Indemnitee’s use or possession of the Goods infringes or misappropriates the patent, copyright, trade secret, or other intellectual property right of any third party. In no event shall Seller enter into any settlement without Buyer’s or Indemnitee’s prior written consent.
19. Insurance. Seller shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than is commercially reasonable and adequate for Seller’s industry with financially sound and reputable insurers. Upon Buyer’s request, Seller shall provide Buyer with a certificate of insurance from Seller’s insurer evidencing the insurance coverage specified in this Order. The certificate of insurance shall name Buyer as an additional insured. Seller shall provide Buyer with thirty (30) days’ advance written notice in the event of a cancellation or material change in Seller’s insurance policy. Except where prohibited by law, Seller shall require its insurer to waive all rights of subrogation against Buyer’s insurers and Buyer or the Indemnitees.
20. Compliance with Law. Seller is in compliance with and shall continue to comply with all (a) applicable laws, regulations and ordinances including, without limitation, environmental, labour (including slavery laws) and anti-corruption laws; and (b) industry standards including, without limitation, sustainability practices. Seller has and shall maintain in effect all the licences, permissions, authorizations, consents, and permits that it needs to carry out its obligations under the Order. Seller shall comply with all export and import laws of all countries involved in the sale of Goods under this Order. Seller assumes all responsibility for shipments of Goods requiring any government import clearance. Buyer may terminate this Order if any government authority imposes antidumping duties, countervailing duties, or any retaliatory duties or any other penalties on the Goods.
21. Termination. Buyer may terminate this Order, in whole or in part, at any time with or without cause for undelivered Goods on fifteen (15) days’ prior written notice to Seller. In addition to any remedies that may be provided under these Terms, Buyer may terminate this Order with immediate effect upon written notice to the Seller, either before or after the acceptance of the Goods, if Seller has not performed or complied with any of these Terms, in whole or in part. 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, liquidation, reorganization, arrangement, or assignment for the benefit of creditors, then the Buyer may terminate this Order upon written notice to Seller. If Buyer terminates this Order for any reason, Seller’s sole and exclusive remedy is payment for the Goods received and accepted by Buyer prior to the termination.
22. Limitation of Liability. Nothing in this Order shall exclude or limit (a) Seller’s liability under Section 15, Section 17, Section 18 and Section 24 hereof, or (b) Seller’s liability for fraud, personal injury or death caused by its negligence or wilful misconduct.
23. Waiver. No waiver by Buyer of any of the provisions of this Order shall be effective unless explicitly set forth in writing and signed by Buyer. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Order shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
24. Confidential Information. All non-public, confidential, or proprietary information of Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic. or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with this Order is confidential, solely for the use of performing the Order and may not be disclosed or copied unless authorized by Buyer in writing. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section 24. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Seller at the time of disclosure; or (c) rightfully obtained by the Seller on a non-confidential basis from a third party.
25. Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such party’s (“Impacted Party”) failure or delay is caused by or results from the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, tsunami, fire, tornado, earthquake, explosion; (c) epidemics, pandemics; (d) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (e) government order, law, or actions; (f) embargoes or blockades in effect on or after the date of this Agreement; (g) national or regional emergency; (h) strikes, lockouts, labour stoppages or slowdowns, labour disputes, or other industrial disturbances; (i) shortage of adequate power or telecommunications or transportation facilities; (j) failure of any governmental or public authority to grant a necessary licence or consent; and (k) other events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within two (2) business days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of thirty (30) consecutive days following written notice given by it under this Section 25, the other party may thereafter terminate this Agreement upon fifteen (15) days’ written notice.
26. Amendments and Modifications. No change to this Order is binding upon Buyer unless it is in writing, specifically states that it amends this Order and is signed by an authorized representative of Buyer.
27. Assignment. Seller shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Order without the prior written consent of Buyer. Any purported assignment or delegation in violation of this Section 27 shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder. Buyer may at any time assign, transfer, or subcontract any or all of its rights or obligations under the Order without Seller’s prior written consent to any affiliate or to any person acquiring all or substantially all of Buyer’s assets.
28. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the Order shall 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.
29. No Third-Party Beneficiaries. This Order is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
30. Governing Law. All matters arising out of or relating to this Order shall be governed by and construed in accordance with the laws of the Province of Saskatchewan and the laws of Canada applicable therein, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the Province of Saskatchewan. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Order.
31. Choice of Forum. Any legal suit, action, litigation, or proceeding of any kind whatsoever in any way arising out of, from, or relating to this Order, including all exhibits, schedules, attachments, and appendices attached to this Order, and all contemplated transactions, shall be instituted, at Buyer’s sole election, (a) before an arbitrator under the Arbitration Act (Saskatchewan); or (b) in the courts of the Province of Saskatchewan, and each party irrevocably submits to the exclusive jurisdiction of such arbitrator or court, as applicable, in any such suit, action, litigation, or proceeding. Each party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
32. Cumulative Remedies. The rights and remedies under this 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.
33. Severability. If any term or provision of this Order is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
34. Survival. Provisions of this Order which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order including, but not limited to, the following provisions: Section 14 (Set-off), Section 15 (Conditions and Warranties, Section 17 (General Indemnification), Section 18 (Intellectual Property Indemnification), Section 19 (Compliance with Laws), Section 24 (Confidentiality), Section 30 (Governing Law), Section 31 (Choice of Forum) and this Section 34 (Survival).
