Terms and Conditions of Purchase
1. Applicability; Entire Agreement. The purchase order (the “Order”) is an offer by UCEL Inc. (“Buyer”) for the purchase of the goods and services (the “Products”) as stated on the face of the Order from the party to whom the Order is addressed (“Seller”) in accordance with and subject to these terms and conditions of purchase (the “Terms”). The Order, together with these Terms and any documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to Buyer’s 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 hereof. 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 the Order or the sale of the Products.
2. Acceptance of Order. Seller, by the acceptance of the Order in writing, the furnishing of any Products, or commencement of performance of the Order, agrees to all of the Terms. If Seller does not accept the Order in writing within ten (10) days of Seller’s receipt of the Order, the Order will be deemed accepted by Seller. Buyer may withdraw the Order at any time before acceptance. The failure of Buyer to reject in writing, any conflicting or contradictory terms contained in any document forwarded by Seller to Buyer subsequent to the Order shall not be deemed to be an assent to such terms.
3. Pricing. The price of the Products stated on the Order shall be the price of the Products and the full extent of Buyer’s liability for the Products. The price of the Products identified in the Order may not be adjusted in any manner without the advance written consent of the Buyer, which the Buyer shall have no obligation to provide. The Buyer shall not be liable or responsible for the payment of any price increases, adjustments, or surcharges whatsoever, unless expressly identified in the Order.
4. Taxes. Buyer shall be responsible for any applicable federal, provincial or state sales tax if clearly identifiable on the Order. All other taxes of any kind associated with the Products shall be Seller’s responsibility.
5. Payment. All invoices must reference a valid purchase order number and be sent via email to accounting@ucelinc.com. Payment terms are net 30 days from the date of receipt of a correct and undisputed invoice, unless otherwise stated in the purchase order.
6. Delivery; Shipment. All the Products purchased by Buyer will be suitably packaged for shipment to ensure that the Products are delivered in undamaged condition, appropriately marked for shipment to Buyer at the address specified in the Order (the “Delivery Location”) and delivered to the Buyer to the Delivery Location or as otherwise instructed or agreed to by Buyer. Seller shall give written notice of shipment to Buyer when the Products are delivered to a carrier. Seller shall provide Buyer all shipping documents, including the commercial invoice, packing list, air waybill/bill of lading and any other documents necessary to release the Products to Buyer promptly after Seller delivers the Products to the carrier. The Order number must appear on all shipping documents, shipping labels, air waybill/bill of lading, invoices, correspondence, and any other documents pertaining to the Order. Seller shall ensure that all the Products are marked and labeled in compliance with all applicable laws, standards and regulations of the destination Country. Seller will be responsible for and pay all applicable charges to be borne by the Seller, including, but not limited to, packaging, freight, shipment, duties and other such tariffs, and insurance charges associated with shipment of the Products to Buyer. Seller shall reimburse Buyer for all expenses incurred by Buyer as a result of improper packing, marketing or routing. Buyer reserves the right at any time to cancel and void the Order or any part thereof without notice or liability if delivery is not made within the time specified on the Order, or within the time mutually agreed upon by Buyer and Seller. Buyer’s acceptance of Seller’s late performance shall not be deemed a waiver of this provision or any other rights afforded to Buyer under these Terms.
7. Inspection. Buyer shall inspect the Products upon delivery by the carrier for any nonconformity, including but not limited to non-conformity for quantity, quality and/or defects. Classification, weighing, sampling and assaying or appraising as done by Buyer or its authorized agents or subcontractors according to standard practice after receipt of the Products shall be final but shall not (a) be considered evidence of quality control by the Seller; (b) absolve the Seller of the responsibility to provide acceptable Products; or (c) preclude subsequent rejection by the Buyer.
8. Insurance. Seller shall effect and maintain sufficient insurance for the Products covering the period until the Products are inspected and accepted by Buyer; and, if applicable, after cancellation of all or part of the Order.
9. Representations and Warranties. The Seller hereby represents and warrants to Buyer that all Products (a) will conform to the specifications or other descriptions furnished by Buyer in the Order or by Seller and approved by Buyer; (b) will be free from defects in material and be sufficient for the purposes for which the Products are being sold to Buyer; (c) the Products specified, and their sale or use, alone or in combination, according to Seller’s specifications or recommendations if any, will not infringe any third-party intellectual property rights; and (d) Seller’s performance hereunder will comply with all applicable federal, provincial, state and local laws and regulations. Seller acknowledges that Buyer shall have the right to all Buyer’s remedies and Seller’s warranties to the fullest extent provided herein, under any applicable laws relating to warranties or merchantability and fitness excerpt as may otherwise be provided in these Terms.
10. The above named Vendor agrees to comply with all applicable laws and regulations regarding modern slavery, including but not limited to the Fighting Against Forced Labour and Child Labour in Supply Chains Act of Canada, by implementing and maintaining policies and procedures to prevent and address modern slavery in its operations and supply chain. The Company reserves the right to conduct audits and inspections of the Vendor’s operations and
supply chain to verify compliance with this term.
11. Indemnification. Seller shall defend, indemnify and hold harmless Buyer and its officers, directors, employees, agents, affiliates, successors and permitted assigns (the “Indemnified Parties”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees, fees and the costs of enforcing any right to indemnification hereunder incurred by the Indemnified Parties relating to, arising out of or resulting from the Seller’s (or its officers, directors, employees, agents, or subcontractor’s) negligence, willful misconduct, or any breach of the Order or these Terms including, for certainty, a breach of the representations and warranties contained herein. Seller acknowledges that it shall not enter into any settlement without Buyer or the Indemnified Parties’ prior written consent.
12. Time of the Essence. Seller acknowledges and agrees that time is strictly of the essence with respect to each and every term, condition and provision hereof, and that the failure to perform any of its obligations in a timely manner shall constitute a breach of, and a default under, these Terms.
13. Termination for Convenience; Changes. Upon notice to Seller, Buyer shall, at any time, and for any reason, have the right, to cancel, suspend or modify, in whole or in part the undelivered portion of the Order. Upon receipt of such notice, Seller shall immediately comply with the notice and adjust operations in accordance with these Terms. All costs and expenses incurred by Seller subsequent to the receipt of such notice, which would not have been incurred if Seller had complied with such notice, shall be the sole responsibility of Seller. No cancellation, suspension or modification that has the effect of changing the price of the Products or cost to Buyer will be
binding unless same is first approved by Buyer in writing. In the event of any cancellation, suspension or modification of the Order, Seller shall not be entitled to, nor shall Buyer be responsible or liable for, anticipatory profits or consequential damages on the part of Seller, its affiliates, or subsidiaries.
14. Termination for Cause. Upon notice to Seller, Buyer reserves the right to cancel the Order immediately without liability to Buyer if Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. If Seller breaches any of these Terms, including but not limited to a failure to perform its obligations within the time period specified in the Order or otherwise in a timely manner or failing to meet the lower price in accordance with Section 4 herein, then Buyer reserves the right to, without any liability to Buyer, (a) immediately cancel the Order in whole or in part upon notice to Seller; or (b) after notifying Seller of such failure or breach and of Buyer’s intent to exercise such right, obtain the Products from another source with any excess costs resulting therefrom being reimbursed by Seller. Seller shall be liable for Buyer’s damages in connection with any such breach or failure to perform including consequential damages reasonably foreseeable by Seller or of which Seller was apprised
by Buyer.
15. Force Majeure. Neither Buyer nor Seller shall be responsible for delays or defaults in performance of their obligations under these Terms and with respect to the Order should such delays or defaults occur as a result of strikes, fires, floods, explosions, acts of terrorism, Acts of God, wars or riots, floods, commandeering or requisitioning or allotting to others in priority by the Government, requests or other requirements or regulations of Government and any other disabling causes or contingencies. In the event that any of the aforementioned occurrences cause delays or prevents Seller’s performance of its obligations, Buyer reserves the right to cancel the
Order immediately without notice or liability of any kind.
16. Confidential Information. All non-public, confidential or proprietary information of Buyer, disclosed 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 herewith 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. The foregoing obligations shall not apply to information that is: (a) in the public domain; (b) known to Seller at the time of disclosure; or (c) rightfully obtained by Seller on a non-confidential basis from a third party. All technical information disclosed heretofore or hereafter by Seller to Buyer in connection with Products supplied under or pursuant to this Order are disclosed or will be disclosed on a nonconfidential basis unless otherwise expressly agreed in writing. Seller agrees not to assert any claims with respect to any technical information which Seller shall have disclosed or may hereafter disclose to Buyer in connection with the Products covered by the Order.
17. Assignment. Seller shall not assign or transfer the Order or any interest therein or monies payable thereunder without the written consent of the Buyer, and any assignment or transfer made without such consent shall be null and void.
18. Remedies. The remedies provided Buyer herein shall be cumulative and in addition to any other remedies provided by law or equity. A waiver of a breach of any provision hereunder shall not constitute a waiver of any other breach.
19. 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.
20. Applicable Law; Venue. The Order shall be governed and construed according to the laws of the province of Ontario and the federal laws of Canada applicable therein without regard to conflict of laws principles. The Courts of Ontario shall have exclusive jurisdiction to resolve any disputes. The United Nations Convention on Contracts for the International Sale of Goods shall not be applicable to this Agreement or related transactions.
21. Survival. Any and all provisions set forth herein shall, with respect to the Order, survive any inspection or acceptance of the Products, or expiration, termination or modification of these Terms, including without limitation, the provisions respecting representations and warranties, indemnification, termination, confidential information, assignment, remedies, set-off and applicable law.
22. Severability. If any provision of these Terms is invalid or unenforceable, such provision will be ineffective only to the extent of such invalidity or unenforceability, without invalidating the remaining provisions of these Terms.
23. Amendment of these Terms. These Terms set out the final terms and conditions of the Order and supersede any previous understanding, agreements or representations whether made orally or in writing. [Upon notice to Seller, Buyer may from time to time to amend or modify these Terms in their sole and absolute discretion.] No waiver, termination, modification or amendment of any term by Seller will be effective unless agreed to in writing and signed by Buyer.