Purchase Order Terms & Conditions
Except where prohibited by law, the acceptance of this Purchase Order (“PO”) shall be limited to the terms and conditions contained herein which constitute the entire agreement between Ennova Facades Inc. (“EFI”), and the Supplier. This PO shall be deemed accepted upon the earlier of Supplier’s written acceptance of the PO or the commencement of performance by Supplier in response to such PO. EFI hereby rejects any additional or inconsistent terms and conditions and shall not be bound by any such additional or inconsistent terms and conditions. No action or failure to act by EFI shall constitute a waiver of these terms and conditions. Supplier is acknowledging that Supplier has read, understood, and agrees to be legally bound by these Terms. Further, Supplier represents and warrants that the person executing the quote on Suppliers’ behalf is duly authorized to do so. Supplier may not assign its rights or delegate its duties or obligations under these Terms without the prior written consent of EFI. Any attempt to make such an assignment or delegation without written consent will be void.
EFI reserves the right to make changes to this PO including changes to drawings and specifications for specially manufactured goods, method of shipment or packing, place or time of inspection, and delivery or acceptance of goods or services by giving reasonable notice to Supplier. If such changes affect the cost of or the time required for performance of this PO, an equitable adjustment in the price and/or date of delivery will be made. No change by Supplier is valid without the written approval of EFI. Any claim of Supplier for an adjustment under this Article must be made in writing to EFI within ten (10) business days from the date of receipt by Supplier of notification of such change or else such claim for an adjustment is waived. Nothing in this Article excuses Supplier from delivering the goods and/or services described in the PO. EFI may, at its sole discretion, change, update, amend, or modify these terms (The “Modifications”) at any time and without notice to the Supplier. Such changes, updates, amendments, or modifications shall be in each purchase order submission, and the non-acknowledgement of the purchase order within seventy-two (72) hours following the delivery of such order submission by EFI constitutes the Suppliers acceptance of such modifications as set forth in such order submission. It is the Suppliers obligation to review the terms stated in each order submission for any such modifications.
Except as expressly noted in the PO to the contrary, prices reflected on this PO are inclusive of any and all applicable energy surcharges, freight, packing, shipment, insurance, and other transportation expenses. Prices are not subject to adjustment unless authorized by EFI in writing. All payments are made in Canadian funds or as otherwise stipulated in the PO. Insurance will be based on freight terms in accordance to the order submitted. If applicable, the costs of returnable packaging, will be at the burden of the vendor.
Terms of Delivery
Except as expressly noted in the PO, Supplier shall deliver the goods and/or services to EFI at the location specified in the PO. Supplier will ensure goods are packaged and labelled in accordance with PO instructions such that they are protected against damage, deterioration, and contamination. The deliverables will be suitably packed by mutually agreed means of shipping, packings and tagging for optimal efficiency. The deliverables will remain at the risk of the Supplier until the deliverables are received and accepted by the EFI. Deliveries are to be scheduled with a minimum notice of fourty-eight (48) hours, accompanied by the Bill of Lading (“BOL”) and a detailed packing list which shall be provided to EFI in advance of the delivery. The contents of each crate, skid, package, or etc. shall be identified. If a delivery is made without the proper documentation, at EFI’s sole discretion, an hourly rate of fourty dollars ($40.00) per hour will be charged for labour associated with identifying such contents.
Risk of Loss
Title and risk of loss shall remain with the Supplier until goods purchased under this PO have been delivered and accepted by EFI at the location specified in the PO. Any additional claims may apply due to damage that may have been concealed during initial inspection.
Payment terms shall be expressly noted in the PO. Payment by EFI shall not constitute an acceptance of goods and/or services, and such goods and/or services will be subject to inspection, testing, acceptance, or rejection. EFI shall have the right to set-off against any sums due Supplier and any or all sums or credits owed to EFI from Supplier.
Inspection and Rejection of Goods
Goods and/or services shall be furnished in accordance with the PO free from all defects in design, workmanship and materials and are subject to inspection and testing by EFI at a time and place deemed reasonable. In the event goods and/or services furnished are non-conforming or defective, EFI reserves the right to reject such goods and/or services for a full refund or require Supplier to repair or replace such goods and/or re-perform such services without charge and in a timely manner or require a reduction in price which is equitable under the circumstances. If Supplier is unable or refuses to correct or replace such goods within a time deemed reasonable by EFI, EFI may terminate this PO in whole or in part. Supplier bears all risks as to rejected goods and/or services. EFI, at its sole discretion, may return nonconforming and defective goods to Supplier at Suppliers expense. It shall be the Supplier’s responsibility to maintain tolerances or industry standards unless noted otherwise. Any and all deviations from specifications must be formally approved by EFI.
Delay or Non-Delivery
Time of delivery is of the essence. If at any time Supplier becomes aware of the possibility of delay in manufacturing and/or shipping the goods or providing services in accordance with the time specified in this PO, notice thereof must be given within three (3) days to EFI by email, together with advice as to the best delivery or completion date possible. In the event of a failure to complete the work or a specific stage of work, if applicable, on or before the date specified in this PO and Supplier fails to remedy such failure with a time period specified by EFI, or if Supplier gives notice pursuant to this clause that there is a possibility of a delay or if EFI has reason to believe that the Supplier will not deliver the goods or services in accordance with the delivery schedule specified in the PO and EFI cannot agree on a reasonable recovery plan or acceptable delivery schedule within a time period specified by EFI, EFI may give written notice to Supplier immediately terminating this PO in accordance with the Termination clause. The time period specified by EFI under this clause shall be the lesser of fifteen (15) calendar days or the amount of time which would permit EFI to meet its delivery obligation to its customer. If the goods are to be produced by the Supplier in stages under the terms of the PO, then failure by the Supplier to complete a stage of production and to notify EFI of such completion in a timely manner having regard to the delivery date and the Work schedule, if any, shall entitle EFI to terminate this PO in accordance with the Termination Clause. EFI reserves the right to pursue compensation costs associated with the delays or failure to deliver as per the agreed upon delivery schedule. Supplier will be held liable for any loss or damage arising from any delay and/or non delivery including, but not limited to, actual, consequential and/or liquidated damages incurred by EFI.
EFI reserves the right to cancel this PO at any time for convenience, in whole or in part, by written notice to Supplier. Upon receipt of such termination notice, Supplier shall immediately discontinue all work or part thereof as applicable on the PO and discontinue placing any further orders for materials, facilities and supplies in connection with the terminated portion of this PO and shall make every reasonable effort to procure cancellations of all existing orders or contracts which the Supplier shall have made, upon terms satisfactory to EFI, and shall thereafter do only such work as may be necessary to preserve and protect work already in progress.
In addition, EFI reserves the right to terminate this PO immediately for Supplier’s failure to remedy a breach within fifteen (15) days following receipt of notice by EFI of such breach, or upon Supplier being adjudged bankrupt or insolvent by a court of competent jurisdiction, or otherwise becoming insolvent, as evidenced by its inability to pay its debts generally as and when they become due or if a receiver is appointed for Supplier.
In the event of termination of this PO, EFI shall only pay for the goods and/or services accepted, and EFI may have another Supplier provide the goods and/or services to mitigate any potential damages. Supplier will be liable for actual and reasonable costs and damages EFI incurs.
Supplier warrants to EFI that goods and/or services supplied under this PO are free from defects in material, workmanship, and design, suitable for the purposes intended, implied, in compliance with all applicable specifications and free from liens or encumbrance on title. All services are performed in accordance with current, sound, and generally accepted industry practices by qualified personnel trained and experienced in the appropriate fields. Warranty to commence at the time of substantial project completion or as otherwise stated by EFI. No hold harmless agreements will be accepted by EFI. In the event EFI is required to investigate a defective product and or warranty claim, the Supplier shall indemnify EFI for all costs incurred for such investigation including, but not limited to, costs to defend claims, reasonable attorneys’ fees, expert fees and any expenses incurred by EFI.
Should this PO stipulate that the goods and/or services are being procured for a LEED project, CGI will require LEED certificate documentation regarding Regional recycle.
To the fullest extent permitted by law, the Supplier shall defend, indemnify, and hold EFI harmless from any and all claims, demands, causes of actions, costs and expenses and liabilities of every kind and nature whatsoever arising out of or in connection with the Suppliers obligations under this PO and caused or alleged to be caused in whole or in part, by any act or omission of the Supplier or anyone employed directly or indirectly by the Supplier. This indemnification shall extend to claims occurring after this PO is terminated as well as while it is in force and shall apply regardless of any acts or omissions of EFI, but the Supplier shall not be obligated to indemnify any party for claims arising from the gross negligence or willful misconduct of EFI. To the extent that the law limits the defense or indemnification obligations of Supplier, the intent hereunder is that the Supplier agrees to provide the fullest defense and indemnity allowed under the law.
If, under the terms and agreements of this PO, Supplier is responsible to deliver the purchased product “FOB Customer Warehouse” or other similar terms of sale, Supplier shall provide at its sole cost and expense, Transportation insurance, insuring the purchased material for its full invoice value inclusive of all freight, duty and customs charges on a “warehouse to warehouse” basis up to and including unloading at the destination specified in this purchase agreement. Insurance shall be underwritten on an “All Risk” basis of coverage and be provided by insurance companies licensed to do business in the Province of Ontario and at EFI’s written request, name Ennova Facades Inc. as Loss payee.
PO and any matter relating hereto shall be governed by the laws of the Province of Ontario. Except as otherwise expressly provided to the contrary, the obligations under this Agreement shall survive the closing, or delivery of material, for only six (6) months unless a document signed at closing provides otherwise; provided, however, that actions for fraud shall survive for the applicable state statutes of limitations period.