The information set forth on the front of this Purchase Order and the terms and conditions as set forth below constituted the sole terms and conditions of an offer from AIR LIQUIDE CANADA INC. (hereinafter the «ALC») to buy from the supplier named on the front side hereof (hereinafter the «SELLER») the Item(s) described on the front of this Purchase Order with all materials and parts incorporated into such Item(s) (hereinafter the «Item(s)»).
Any response by SELLER to ALC which in any way varies any of the Item(s) and conditions set forth herein and/or any SELLER’s terms and conditions shall not be binding on ALC unless specifically agreed to and accepted in writing by an authorized representative of ALC. In accepting the order described on the front hereof, SELLER covenants and agrees with ALC that unless otherwise agreed in writing by representatives authorized by each of ALC and SELLER:
1. ACCEPTANCE OF AGREEMENT
SELLER’s shipment of the all Item(s) described on the front hereof, or the receipt by ALC of SELLER’s invoice or any other acknowledgment of this Purchase Order shall constitute an acceptance of this Purchase order in its entirety by SELLER, as well as the giving of a warranty by SELLER in accordance with the provisions of Section 3 hereof. This Purchase Order shall constitute the entire agreement between ALC and SELLER and shall supersede all previous correspondence, bids, offers and acceptance between ALC and SELLER with respect to the purchase contemplated hereby, except with respect to specifications for the Item(s) purchase hereby.
Unless otherwise indicated on the reverse side hereof, all Item(s) will be delivered FCA supplier’s site (as per Incoterms 2010) to ALC’s delivery location(s) set out on the front side hereof. Subject to the acceptance of the delivered Item(s) by ALC, risk of loss for and title to the Item(s) shall pass to ALC at the time the Item(s) is delivered to the carrier. All costs to ALC of the Item(s) ordered hereunder for packaging, labeling and boxing shall be paid by SELLER. SELLER shall securely and safely pack the Item(s) into containers affording sufficient protection to the Item(s) contained therein against the elements and other risks of damage, loss or theft normally incidental to the shipment of Item(s) of the type or kind being shipped. SELLER agrees at its own expense to number and label each package with the order number of this Purchase Order. If any Item(s) ordered hereby is not delivered within the time specified herein, ALC may, by verbal notice to SELLER followed by written confirmation, (a) require that such Item(s) be then shipped to ALC by the most rapid means of transportation with any additional costs of shipment to be at SELLER’s sole expense, or (b) cancel any portion of the Item(s) ordered to this Purchase Order not delivered in the time specified or not in conformity with stated specifications, or both, and purchase all or part of the undelivered Item(s) elsewhere.
SELLER expressly warrants that all Item(s) furnished to ALC hereunder will be:
(a) fit and safe for the purpose for which manufactured and for any particular purpose recommended to ALC by SELLER;
(b) free from defects in material and workmanship;
(c) conforming to applicable laws, regulations, codes, standards, specifications, drawings, samples and descriptions;
(d) and, if of SELLER’s design, will be free of design defects.
In addition, SELLER warrants that all Item(s) and materials and parts incorporated into the Item(s) shall not infringe any patent, trade-mark, copyright or industrial design belonging to any other person Item(s).
These warranties are in addition to any other express or implied warranties of SELLER with respect to the Item(s) s ordered hereby, and shall survive acceptance by ALC of such Item(s) and any payment by ALC with respect to such Item(s). Neither SELLER’s shipment of any Item(s) ordered hereby nor payments by ALC of any invoice from SELLER to ALC thereof shall constitute ALC’s acceptance of the Item(s) ordered hereby or waiver of SELLER’s warranties hereunder.
If in ALC’s reasonable opinion any Item(s) delivered by SELLER hereunder is not meeting those warranty requirements SELLER shall at SELLER’s cost, including without limitation any and all packing shipment and delivery costs, promptly repair, modify or replace said Item(s) or any components thereof to the requirement of ALC’s initial specifications under this purchase order.
SELLER, its heirs, successors, assigns and legal representative shall forever protect, indemnify and save harmless ALC, its subsidiaries and affiliated companies, their successors and assigns against all damages, claims, suits at law or in equity, and demands, losses and costs, including reasonable fees of any kind, arising out of or in connection with the Item(s) and/or SELLER’s performance, lack of performance or conduct, whether active or passive, under this agreement.
5. REJECTION OF ITEM(S) SHIPPED IN EXCESS
Item(s) shipped in excess of quantities designated on this Purchase Order or Item(s) rejected or replaced for any reason in accordance with the terms and conditions of this Purchase Order shall constitute the property of the SELLER and may be returned to SELLER at SELLER’s expense.
ALC may, by designated agents and upon reasonable notice to SELLER, inspect the Item(s) ordered pursuant to this Purchase Order during the process of manufacture or at any time prior to ALC’s receipt of such Item(s). The place of inspection shall include, but not be limited to, SELLER’s place of business or any and all manufacturing facilities. ALC’s failure to inspect shall not constitute a waiver of its right to inspect or an acceptance of such Item(s) upon inspection shall not constitute a waiver of any warranty of SELLER or excuse any defect or nonconformance of such Item(s).
7. NO LIMITATION ON ALC'S DAMAGES
Nothing in this Purchase Order shall be deemed (a) to limit the measure of damages recoverable by ALC under applicable law, (b) to make any remedy of ALC exclusive of all other remedies permitted by law, (c) to limit or exclude ALC’s consequential damages, or (d) to limit ALC’s remedies to the return of Item(s) ordered and repayment to ALC of the price thereof, or to the repair and replacement of nonconforming Item(s) or parts. The rights and remedies of ALC as set forth herein are in addition to all other rights and remedies of ALC provided by law.
Unless otherwise indicated on the reverse side hereof, prices shown of this Purchase Order do not include taxes of any kind. Such prices do not violate any relevant pricing regulations, and SELLER’s acceptance of this order constitutes SELLER’s warranty of compliance with all such relevant regulations.
9. PATENTS, ETC.
If any claim, action, suit or other proceeding is brought against ALC based upon copyright, trademark, patent or proprietary rights of a third party under the laws of any governmental authority, ALC will give timely written notice of such claim, action, suit or other proceeding to SELLER by registered mail at SELLER’s address set forth herein. SELLER will defend any such claim, action, suit or other proceeding on behalf of and without expense to ALC or ALC may conduct its own defense which shall be at SELLER’s expense and SELLER will indemnify and save ALC harmless from all losses, costs or damages, including without limitation reasonable fees of attorneys, suffered by ALC as a result of any such claim, action, suit or other proceeding. SELLER will, at SELLER’s expense (a) use SELLER’s best efforts to procure for ALC or ALC’s customers the right to continue selling or using any Items(s) or parts thereof that may be affected by such claim of infringement, or (b) replace the allegedly infringing Item(s) or parts thereof with non-infringing or modify such Item(s) or parts so that they become non-infringing; provided, however, that such modification shall not materially alter the dimensions, or affect or increase the cost of use, operation or maintenance of such Ite(s).
10. SILENCE NOT WAIVER
Silence on the part of ALC or the refraining by ALC from performing any act shall not signify acceptance by ALC of any term relative to this Purchase Order proposed by the SELLER, nor act as a waiver or alteration by ALC with respect to SELLER’s obligations to ALC under this Purchase Order.
11. FORCE MAJEURE
In the event of labor disputes or strikes beyond SELLER’s reasonable control or fire, flood, wars, riots, civil commotions, delays of carriers, accidents, restrictions imposed by any government authority, embargoes, act of God, shortages of any materials, power or labor or any other cause which is beyond the reasonable control of SELLER which delays or prevents delivery of Item(s) ordered pursuant to this Purchase Order to ALC or which in ALC’s reasonable opinion increases ALC’s risk or renders goods ordered hereunder wholly or partially unusable for ALC’s purposes, ALC shall have the right to cancel all or part of any then unfulfilled portion of this Purchase Order by notice in writing to SELLER, and upon the giving of such notice ALC’s obligation under this Purchase Order shall be limited to payment to SELLER at the price specified herein for the Item(s) ordered hereunder and delivered to and accepted by ALC at the time of the receipt by SELLER of such notice.
SELLER may not assign, subcontract nor transfer any portion of this Purchase Order.
13. SAFETY INFORMATION
SELLER shall, upon request from ALC, provide ALC with such safety procedures, instructions and regulations as may be in its possession and applicable to the Item(s). SELLER shall provide ALC with appropriate Material Safety Data Sheet(s) in both the French and English language.
“Confidential Information” means any information which is confidential in nature or that is treated as being confidential by a Party and that is furnished or transferred by or on behalf of such Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), whether such information is or has been conveyed verbally or in written or other tangible form, and whether such information is acquired directly or indirectly such as in the course of discussions or other investigations by the Receiving Party, including, but not limited to, trade secrets and technical, financial or business information, data, ideas, concepts or know-how that is considered and treated as being confidential by the Disclosing Party. Receiving Party shall not use Disclosing Party’s Confidential Information for any purpose other than to exercise or perform its rights or obligations under this Purchase Order. Receiving Party shall not copy or otherwise reproduce Disclosing Party’s Confidential Information, or disclose, disseminate or otherwise communicate, in whole or in part, Disclosing Party’s Confidential Information to any third party, without the prior written consent of Disclosing Party. Receiving Party further agrees that it shall safeguard Disclosing Party’s Confidential Information from disclosure and, at minimum, use efforts commensurate with those Receiving Party employs for protecting the confidentiality of its own Confidential Information which it does not desire to disclose or disseminate, but in no event less than reasonable care. Immediately upon the demand of Disclosing Party, Receiving Party shall return Disclosing Party’s Confidential Information (and any and all permitted copies thereof) to Disclosing Party. Receiving Party agrees that Disclosing Party may suffer irreparable harm from a breach of this Agreement and that Disclosing Party may be entitled to seek any relief that may be available from any court to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof.
ALC may immediately terminate this Purchase Order if SELLER is subject to proceedings in bankruptcy or insolvency, voluntarily or involuntarily, if a receiver is appointed, if SELLER assigns its property to its creditors or performs any other act of bankruptcy or if SELLER becomes insolvent and cannot pay its debts when they are due. In addition to any other rights and remedies available to it, ALC may immediately terminate this Purchase Order in the event of breach by SELLER of its obligations hereunder. ALC may, at any time and without cause, terminate this Purchase Order for convenience, without penalty, charge or liability of any kind upon giving SELLER a reasonable prior notice provided that SELLER shall be entitled on termination to the payments of amounts accrued prior to the date of termination in connection with such Item(s) Product that was delivered prior to the date of termination and which is performing to the reasonable satisfaction of ALC.
16. GOVERNING LAW
Any dispute or controversy arising out of, under, in connection with or in relation to this Agreement shall be determined in accordance with the laws in force in the Province of Ontario (all legal proceedings resulting thereof shall be instituted and heard before the courts of said Province), unless the head office or principal place of business of SELLER is situated in the Province of Quebec, in which case laws of the Province of Quebec shall apply (all legal proceedings resulting thereof shall be instituted and heard before the courts of said Province (all legal proceedings resulting thereof shall be instituted and heard before the courts of said Province).
17. COMPLIANCE WITH ALC POLICIES
SELLER shall and shall ensure that its employees and its suppliers comply with ALC's policies, including but not limited to the "Air Liquide supplier code of conduct", which can be accessed at the cost and expense of the SELLER at the following address: https://www.airliquide.com/group/groups-principles-action. In the case of any difference between the requirements of ALC policies and the law, the stricter or higher standard shall apply.
The Parties hereto have requested that this Agreement and all correspondence and all documentation relating to this Agreement, be written in the English language. Les parties aux présentes ont exigé que la présente entente, de même que toute la correspondance et la documentation relative à cette entente soient rédigées en langue anglaise.