1. ENTIRE AGREEMENT:
These Terms and Conditions, and the Purchase Order (together with any or all appendices or exhibits attached thereto), collectively, the “PO” shall constitute the entire and only agreement between Norseman Inc. (“Norseman”) and the Purchaser, relating to the Goods to be provided or Services to be performed pursuant to the this PO.
The earlier of: (i) commencement of the performance of any Services; (ii) the supply of any Goods; or (iii) payment, shall constitute acceptance by the Purchaser of the terms and conditions of this PO. In the event of conflict, the following order of precedence shall apply such that the first mentioned document shall prevail: (i) the Purchase Order, (ii) these Terms and Conditions, and (iii) any or all appendices or exhibits attached thereto;
2. Defined Terms:
“Goods” includes any goods, materials, equipment or products provided hereunder; “Services” includes any labour or work performed hereunder; “Purchaser” refers to the party purchasing the Goods or paying for the Services or both;
3. Changes:
Norseman shall have the right at any time to make changes, which may include, without limitation changes to drawings, specifications, quantities, delivery schedule, method of shipment, or any other terms of the PO (the “Changes”).
If such Changes result in delay or increase/decrease in expense to Norseman, Norseman shall notify Purchaser immediately and negotiate an equitable adjustment. No Change shall be effective unless authorized in writing by Norseman.
Any changes to or cancellation of custom orders after the commencement of manufacturing or container direct orders after shipping are hereby rejected.
4. Taxes:
Purchaser is responsible for and will pay all applicable taxes, charges, duties, fees, levies, or other assessments imposed or collected by any governmental entity relating to the supply of Goods or provision of Services, including, without limitation, any value added tax. Sales tax will be shown separately on all invoices.
5. Payment:
Purchaser agrees to pay all amounts due within thirty (30) days of receipt of Norseman’s invoice. Norseman shall have the right to deduct or set-off any amount due hereunder, from any amount due to Purchaser under any contract Norseman has or may have with Purchaser or its affiliates.
Any unpaid amounts shall bear interest at: (1) 2% per annum above the prime rate for the first 60 days and (2) 4% per annum above the prime rate after the first 60 days. Such interest shall be compounded on a monthly basis.
The prime rate shall be the rate of interest quoted by the Toronto Dominion Bank of Canada for prime business loans as it may change from time to time.
Norseman reserves the right to invoice any additional freight costs after he Goods are unloaded or the Services performed, each at the specific place of destination.
6. Inspection:
Payment for Goods supplied or Services performed pursuant to this PO shall not constitute acceptance thereof. Failure to inspect or test the Goods or Services shall not be deemed acceptance of the Goods or Services;
7. Delivery and Risk of Loss:
Unless otherwise agreed in writing by Norseman, risk of loss and title shall transfer to the Purchaser when the Goods are unloaded or the Services performed, each at the specific place of destination.
Until the full price is paid, Norseman shall be deemed to have and the Purchaser hereby grants to Norseman a purchase money security interest in the Goods.
To the extent permitted by applicable law, the Purchaser waives the right to receive copies of any verification statements, financing statements, financing change statements or other similar documentation in relation to the purchase money security interest granted hereby.
The Goods shall remain personal property irrespective of the manner of their attachment to realty.
8. Insurance:
Purchaser shall obtain and maintain all applicable and appropriate insurance, (which may include, without limitation, business, auto, errors and omissions, professional, property and commercial general liability insurance, including bodily injury, death and property damage) in an amount consistent with Purchaser`s industry practice.
Each policy shall name Norseman as an additional insured, contain a waiver of subrogation in favor of Norseman and state that it cannot be cancelled without at least 30 days written notice to Norseman;
9. Warranties:
This PO is subject to the Limited Warranty which is accepted by the Purchaser on the terms stated therein in lieu of any and all warranties or conditions which might be implied as to quality, material, workmanship, merchantability, or fitness. The Purchaser acknowledges receipt and understanding of the Limited Warranty.
10. Confidentiality:
Each party shall maintain confidentiality with regard to secret, confidential, proprietary or restricted matters that are disclosed or developed in connection with this PO and shall require a similar agreement of all its employees, subcontractors and agents;
11. Compliance with Law:
Each party warrants that it fully complies and will continue to fully comply with all statutes, regulations, policies and guidelines (“Law”) which apply to that party, which may include, without limitation, workers` compensation, environmental laws, export and import control laws, and safety laws
12. Intellectual Property:
Norseman warrants that the Goods provided or Services performed do not infringe upon any property right of any third party including but not limited to any patents, copyrights, trademarks, designs or trade secret, whether registered or pending (“Intellectual Property”).
13. Indemnification:
Each party shall: (i) be liable to the other party and the other party’s directors, officers, employees, agents, affiliates, successors and assigns (the “Indemnitees”) and (ii) as a separate and independent covenant shall indemnify, defend and hold harmless the Indemnities from and against; any claim, losses, damages, liabilities, causes of action, charges, judgments, and expenses (including, without limitation, any and all fines and legal fees, on a solicitor-and-own-client basis) arising out of, resulting from, attributable to or in any way connected with the PO. UNDER NO CIRCUMSTANCE SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY KIND, INCLUDING, WITHOUT LIMITATION, LOSSES OF PROFITS, REVENUE, BUSINESS, REPUTATION, FINANCING OR OPPORTUNITY, EVEN IF ADVISED OF THE POSSIBILTY THEREOF. This Clause 15 survives termination of this PO;
14. Force Majeure:
Neither party shall be liable for any failure or delay which in whole or in part is due to an event beyond its reasonable control provided timely notice is provided to the other party.
15. Term and Termination:
The PO shall terminate twelve (12) months from the date hereof. All of the provisions of these Terms and Conditions which by their nature survive the termination or expiry of the contract, shall survive the termination or expiry of the contract. Norseman may, for any reason and at any time, at its convenience, terminate this PO upon five (5) days’ notice to Purchaser. On delivery of the termination notice by Norseman, Norseman shall be relieved of all obligations under this PO;
16. Default and Remedies:
The following events shall be considered an event of default: (i) the defaulting party has solvency issues; (ii) failure to pay any amount when due; and (iii) breach of any provision that has not been remedied within a reasonable time of notice thereof. In the event of default, the non-defaulting party may: (i) suspend performance; (ii) terminate the PO; or (iii) remedy such default at the sole cost and expense of the defaulting party.
17. No Assignment:
This PO may not be assigned or subcontracted, in whole or in part, without the prior written consent of the other party;
18. Law:
This PO shall be interpreted in accordance with the laws of the jurisdiction where the Goods are delivered or Services performed or both. The Purchaser and Norseman hereby irrevocably attorn to the exclusive authority of the court within this jurisdiction;
19. Miscellaneous:
All notices or other communications required to be made shall be in writing and will be deemed to have been received by the intended recipient if delivered to the municipal address, facsimile address, or e-mail address shown on the face of the Purchase Order; The invalidity or non-enforceability of any provision shall not affect the validity or enforceability of any other provisions of this PO.
No waiver shall be effective unless in writing; this PO may be executed in counterpart by way of electronic means, and each counterpart will be binding upon the parties as an originally signed counterpart.