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 Vendor, 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 Vendor 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 to the Purchase Order;
2. Defined Terms:
“Goods” includes any goods, materials, equipment or products provided hereunder; “Services” includes any labour or work performed hereunder; “Vendor” refers to the party supplying the Goods or performing the Services or both ;
3. Changes:
Norseman shall have the right at any time to make changes to drawings, specifications, quantities, delivery schedule, method of shipment, or any other terms of the Purchase Order (the “Changes”).
If such Changes result in delay or increase/decrease in expense to Vendor, Vendor shall notify Norseman immediately and negotiate an equitable adjustment. Vendor must deliver the Goods and Services specified in this PO in strict accordance herewith. No Change shall be effective unless authorized in writing by Norseman;
4. Prices:
Vendor warrants that the price for each item covered by this PO shall be the lower of the price shown for each item on the face of the Purchase Order or the price of Vendor in effect on the date of delivery for like quantities of items of like grade and quality to consumers similar to Norseman;
5. Taxes:
Vendor is responsible for and will pay all applicable taxes, charges, fees, levies, or other assessments imposed or collected by any governmental entity relating to the Goods provided or Services performed, including, without limitation, any value added tax or any other duties or fees related to any payment by Norseman to Vendor for the Goods or Services provided pursuant to this PO.
Sales tax should be shown separately on all invoices. If Vendor is a non-resident within the meaning of the Income Tax Act (Canada), Norseman shall be entitled to withhold the required amounts;
6. Payment:
Norseman agrees to pay all undisputed amounts due within sixty (60) days of receipt of Vendor’s compliant invoice, less any deposits paid to Vendor (if any).
Norseman shall only be obligated to pay invoices that are issued to Norseman subsequent to delivery, receipt and acceptance of the Goods or Services.
Invoices not in compliance with: (i) the agreed deliverables (including but not limited to the Goods or Services, packing slips, time sheets, manuals, reports, etc.,); or (ii) payment terms as expressed in this PO; may be rejected by Norseman and returned to Vendor.
Invoices submitted must show Norseman`s Purchase Order number. Norseman shall have the right to deduct or set-off any amount due hereunder, from any amount due to Vendor under any contract Norseman has or may have with Vendor.
Vendor may be required to furnish Norseman with a statutory declaration that all subcontractors (including, without limitation, carriers, labourer and suppliers of materials) have been paid in full and proof that all rights to lien, legal hypothec and similar claims (“Liens”) have been waived prior to payment. Norseman may require Vendor to remove any Liens at Vendor’s sole cost, risk and expense.
Vendor shall maintain, and Norseman shall be entitled to audit, a complete set of records relating to this PO for a period of a least five (5) years from termination;
7. Marking/Packaging:
Each package must be labelled with Norseman’s Purchase Order number and specify contents and weight. Extra charges for crating, packing, packaging, storage, special handling or shipping and cartage shall not be made or allowed;
8. Inspection:
Payment for Goods supplied or Services performed pursuant to this PO shall not constitute acceptance thereof. Norseman may inspect and test such Goods or Services, and reject any or all items that are in Norseman`s sole judgement, non-conforming or incomplete.
Goods rejected or Goods supplied in excess of quantities ordered may be returned to Vendor at Vendor’s expense. Failure by Norseman to inspect or test the Goods or Services shall not be deemed acceptance of the Goods or Services;
9. Delivery and Risk of Loss:
It is Vendor’s obligation to meet the specified delivery date(s) and to notify Norseman promptly of any actual or anticipated delays in supplying the Goods or performing the Services. Unless otherwise agreed in writing by Norseman, risk of loss and title shall remain with Vendor until the Goods are unloaded or the Services performed, each at the specific place of destination. Vendor expressly understands that time is of the essence;
10. Insurance:
Vendor shall obtain and maintain all applicable and appropriate insurance, (including, 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 Vendor`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;
11. Warranties:
In addition to any implied warranties under the law, Vendor expressly warrants the Goods and Services to be in accordance with the Purchase Order, that Vendor has clear title to the Goods and that all items are new, free from defects or deficiencies, free from any liens, designs and Intellectual Property infringements, fit for merchantability, and fit for the purpose intended by Norseman. Payment for Goods or Services does not waive Vendor’s warranty.
Such warranty shall remain in effect until the later of Vendor’s stated warranty term or 12 (twelve) months from the date of delivery to Norseman. Vendor will repair; replace or correct any defect or deficiency in the Goods or Services at at Vendor’s sole cost and expense;
12. Confidentiality:
The Vendor 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;
13. Compliance with Law:
Vendor warrants that it fully complies and will continue to fully comply with all statutes, regulations, policies and guidelines (“Law”) which apply to the Goods to be provided or Services to be performed, including, without limitation, workers` compensation, environmental laws, export and import control laws, safety laws, as well as Norseman’s safety policies and guidelines.
14. Intellectual Property:
Vendor 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”). Vendor grants to Norseman a fully sub-licensable, worldwide, irrevocable, royalty-free, perpetual, non-exclusive right and license to any Intellectual Property in respect of the Goods provided or Services performed;
15. Indemnification:
Vendor shall: (i) be liable to Norseman, its directors, officers, employees, affiliates, successors and assigns (the “Norseman Indemnitees”) and (ii) as a separate and independent covenant indemnify, defend and hold harmless the Norseman Indemnities from and against; any claim, losses, damages, liabilities, causes of action, charges, judgements, 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 connected with: (1) the provision of the Goods and performance of the Services by Vendor or any individual or entity acting by, through or under Vendor; (2) any defect or deficiency in Vendor’s Goods or Services; (3) a default or breach by Vendor of the terms and conditions of this PO; (4) the negligent act or omission of Vendor or of any individual or entity acting by, through or under Vendor; (5) any infringement or alleged infringement of Intellectual Property and (6) any actual or alleged violation or breach by Vendor or any individual or entity acting by, through or under Vendor of any applicable Law. UNDER NO CIRCUMSTANCE SHALL NORSEMAN 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;
16. 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, in its sole discretion, terminate this PO. On delivery of the termination notice by Norseman, Norseman shall be relieved of all obligations under this PO, Vendor shall immediately cease all performance hereunder, and if Vendor is not in default, Norseman shall reimburse Vendor for the actual, direct cost to Vendor of only those Goods manufactured to Norseman’s specifications, which have, at the time of such cancelation, been wholly or partially manufactured.
Upon payment, title to all such Goods shall pass to Norseman. Unless Norseman shall have otherwise instructed, Vendor shall not manufacture Goods in reserve in an amount greater than the number of manufactured Goods that it has shipped to Norseman at any one time;
17. 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 if not remedied within a reasonable time of notice thereof; 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.
18. No Assignment:
This PO may not be assigned or subcontracted, in whole or in part, without the prior written consent of Norseman;
19. Law:
This PO shall be interpreted in accordance with the laws of the jurisdiction where the Goods were delivered or Services performed or both. The Vendor and Norseman hereby irrevocably attorn to the exclusive authority of the court within this jurisdiction;
20. 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.