For Liftwerx Suppliers

1. APPLICABILITY: These terms and conditions (these "Terms") are the only terms which govern the purchase of the goods ("Goods") and/or services ("Services") by LiftWerx Solutions Inc. ("LiftWerx") from the supplier named in the Purchase Order (the "Supplier"). The accompanying purchase order (the "Purchase Order") and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties and supersede all prior understandings, agreements, negotiations, representations and warranties and communications, both written and oral. These Terms prevail over any of the Supplier's general terms and conditions of sale regardless of whether or when the Supplier has submitted its sales confirmation or such terms. This Agreement expressly limits the Supplier's acceptance to the terms of this Agreement. Fulfilment of this Purchase Order constitutes acceptance of these Terms.
2. DELIVERY OF GOODS AND PERFORMANCE OF SERVICES: The Supplier shall deliver the Goods in the quantities and on the date(s) specified in the Purchase Order or as otherwise agreed in writing by the parties (the "Delivery Date"). If no delivery date is specified, the Supplier shall deliver the Goods within 30 days of the Supplier's receipt of the Purchase Order. If the Supplier fails to deliver the Goods in full on the Delivery Date, LiftWerx may terminate this Agreement immediately by providing written notice to the Supplier and the Supplier shall indemnify LiftWerx against any losses, claims, damages and reasonable costs and expenses directly attributable to the Supplier's failure to deliver the Goods on the Delivery Date. LiftWerx has the right to return any Goods delivered prior to the Delivery Date at the Supplier's expense and the Supplier shall re-deliver such Goods on the Delivery Date. The Supplier shall deliver all Goods to the address specified in the Purchase Order (the "Delivery Location") during LiftWerx's normal business hours or as otherwise instructed by LiftWerx. The Supplier shall pack all Goods for shipment according to LiftWerx's instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. The Supplier must provide LiftWerx prior written notice if it requires LiftWerx to return any packaging material. Any return of such packaging material shall be made at the Supplier's risk of loss and expense. The Supplier shall provide the Services to LiftWerx as described and in accordance with the Purchase Order and in accordance with the terms and conditions set forth in these Terms. The Supplier acknowledges that time is of the essence with respect to the Supplier's obligations hereunder and the timely delivery of the Goods and Services, including all performance dates, timetables, project milestones and other requirements in this Agreement.
3. QUANTITY: If the Supplier delivers more or less than the quantity of Goods ordered, LiftWerx may reject all or any excess Goods. Any such rejected Goods shall be returned to the Supplier at the Supplier's sole risk and expense. If LiftWerx does not reject the Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the Price for the Goods shall be adjusted on a pro-rata basis.
4. SHIPPING TERMS: Delivery of the Goods shall be made in accordance with the terms of the Purchase Order. The Purchase Order number must appear on all shipping documents, shipping labels, bills of lading, air waybills, invoices, correspondence and any other documents pertaining to the Purchase Order.
5. TITLE AND RISK OF LOSS: Title and risk of loss passes to LiftWerx upon delivery of the Goods at the Delivery Location. The Supplier bears all risk of loss or damage to the Goods until delivery of the Goods to the Delivery Location.
6. INSPECTION AND REJECTION OF NON-CONFORMING GOODS: LiftWerx has the right to inspect the Goods on or after the Delivery Date. LiftWerx, at its sole option, may inspect all or a sample of the Goods and may reject all or any portion of the Goods if it determines the Goods are non-conforming or defective. If LiftWerx rejects any portion of the Goods, LiftWerx has the right, effective upon written notice to the Supplier, to: (a) rescind this Agreement in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If LiftWerx requires replacement of the Goods, the Supplier shall, at its expense, promptly replace the non-conforming or defective Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective Goods and the delivery of replacement Goods. If the Supplier fails to timely deliver replacement Goods, LiftWerx may replace them with goods from a third party and charge the Supplier the cost thereof and terminate this Agreement for cause pursuant to paragraph 17. Any inspection or other action by LiftWerx under this paragraph shall not reduce or otherwise affect the Supplier's obligations under the Agreement and LiftWerx shall have the right to conduct further inspections after the Supplier has carried out its remedial actions.
7. PRICE: The price of the Goods and Services is the price stated in the Purchase Order (the "Price"). If no price is included in the Purchase Order, the Price shall be the price set out in the Supplier's published price list in force as of the date of the Purchase Order. Unless otherwise specified in the Purchase Order, the Price includes all packaging, transportation costs to the Delivery Location, insurance, customs duties and fees and applicable taxes, including, but not limited to, all harmonized sales tax, goods and services tax, provincial sales tax, value added tax, use or excise taxes. No increase in the Price is effective, whether due to increased material, labour, or transportation costs or otherwise, without the prior written consent of LiftWerx.
8. PAYMENT TERMS: The Supplier shall issue an invoice to LiftWerx on or any time after the completion of delivery and only in accordance with these Terms. LiftWerx shall pay all properly invoiced amounts due to the Supplier within 60 days after LiftWerx's receipt of such invoice, except for any amounts disputed by LiftWerx in good faith. All payments hereunder must be in Canadian dollars. Without prejudice to any other right or remedy it may have, LiftWerx reserves the right to set-off at any time any amount owing to it by the Supplier against any amount payable by LiftWerx to the Supplier under this Agreement. In the event of a payment dispute, LiftWerx shall deliver a written statement to the Supplier listing all disputed items and providing a reasonably detailed description of each disputed item. Amounts not so disputed are deemed accepted and must be paid, notwithstanding disputes on other items, within the period set forth in this paragraph. The parties shall seek to resolve all such disputes expeditiously and in good faith. The Supplier shall continue performing its obligations under this Agreement notwithstanding any such dispute.
9. SELLER'S OBLIGATIONS REGARDING SERVICES: If the Purchase Order provides for the provision of Services by the Supplier, the Supplier shall: (i) before the date on which the Services are to start, obtain and at all times during the term of this Agreement, maintain, all necessary licences and consents and comply with all relevant laws applicable to the provision of the Services; (ii) comply with all rules, regulations and policies of LiftWerx; (iii) maintain complete and accurate records relating to the provision of the Services under this Agreement, including records of the time spent and materials used by the Supplier in providing the Services; (iv) obtain LiftWerx's written consent prior to entering into agreements with or otherwise engaging any person or entity, other than the Supplier's employees, to provide any Services to LiftWerx, provided that such consent shall not relieve the Supplier of its obligations under the Agreement and the Supplier's responsibility for the performance of the Services in compliance with all of the terms and conditions of this Agreement as if they were the Supplier's own employees and provided further each such person or entity shall be bound in writing by the confidentiality provisions of this Agreement and, upon LiftWerx's written request, enter into a non-disclosure or intellectual property assignment or licence agreement in a form that is reasonably satisfactory to LiftWerx; (v) ensure that all persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of the Supplier, are properly licensed, certified, or accredited as required by applicable law and are suitably skilled, experienced and qualified to perform the Services; (vi) ensure that all of its equipment used in the provision of the Services is in good working order and suitable for the purposes for which it is used and conforms to all relevant legal standards and standards specified by the LiftWerx; and (vii) keep and maintain any LiftWerx equipment in its possession in good working order and shall not dispose of or use such equipment other than in accordance with the LiftWerx's written instructions or authorization.
10. CHANGE ORDERS: If the Purchase Order provides for the provision of Services by the Supplier, LiftWerx may at any time, by written instructions and/or drawings issued to the Supplier (each a "Change Order"), order changes to the Services. The Supplier shall within 2 business days of receipt of a Change Order submit to LiftWerx a firm cost proposal for the Change Order. If LiftWerx accepts such cost proposal, the Supplier shall proceed with the changed Services subject to the cost proposal and the terms and conditions of this Agreement. The Supplier acknowledges that a Change Order may or may not entitle the Supplier to an adjustment in the Supplier's compensation or the performance deadlines under this Agreement.
11. CONDITIONS AND WARRANTIES: The Supplier covenants and warrants to LiftWerx that, on the Delivery Date, all Goods will: (i) be free from any defects in workmanship, material and design; (ii) conform to applicable specifications, drawings, designs, samples and other requirements specified by LiftWerx; (iii) be fit for their intended purpose and operate as intended; (iv) be merchantable; (v) be free and clear of all liens, security interests, or other encumbrances; and (vi) not infringe or misappropriate any third party's patent or other intellectual property rights. The Supplier further covenants and warrants that no part of the Goods, material incorporated into the Goods, or Services were or will be produced, manufactured or provided, wholly or in part, by forced labour or child labour, as defined by international labour standards, Canada's Fighting Against Forced Labour and Child Labour in Supply Chains Act and applicable laws in the country of export, and that the Supplier maintains policies, procedures and due diligence standards that are reasonably designed to ensure compliance with applicable forced labour laws and human rights and employment standards and to provide reasonable assurances that the Goods and Services provided are not a result of any forced labour or child labour. These warranties survive any delivery, inspection, acceptance, or payment of or for the Goods by LiftWerx. The Supplier warrants to LiftWerx that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement. The warranties set forth in this paragraph are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of LiftWerx's discovery of the noncompliance of the Goods or Services with the foregoing conditions and warranties. If LiftWerx gives the Supplier notice of noncompliance pursuant to this paragraph, the Supplier shall, at its own cost and expense, promptly (a) replace or repair the defective or non-conforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or non-conforming Goods to the Supplier and the delivery of repaired or replacement Goods to LiftWerx and, if applicable, (b) re-perform the applicable Services.
12. GENERAL INDEMNIFICATION: The Supplier shall defend, indemnify and hold harmless LiftWerx, its subsidiaries, affiliates, successors, or assigns and its directors, officers, shareholders and employees (collectively, the "Indemnified Parties") against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost, or expense, including reasonable legal fees and professional fees and costs and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, "Losses") arising out of or occurring in connection with the Goods and Services purchased from the Supplier or the Supplier's negligence, wilful misconduct, or breach of the Terms. The Supplier shall not enter into any settlement relating to a claim subject to indemnification under this Agreement without LiftWerx's prior written consent.
13. INTELLECTUAL PROPERTY INDEMNIFICATION: The Supplier shall, at its expense, defend, indemnify and hold harmless LiftWerx and any Indemnified Party against any and all Losses arising out of or in connection with any claim that LiftWerx's or Indemnified Party's use or possession of the Goods or use of the Services infringes or misappropriates the patent, copyright, trademark, trade secret or other intellectual property right of any third party. In no event shall the Supplier enter into any settlement without LiftWerx's or Indemnified Party's prior written consent.
14. LIMITATION OF LIABILITY: Nothing in this Agreement shall exclude or limit the Supplier's liability for fraud, personal injury, or death caused by its negligence or wilful misconduct.
15. INSURANCE: During the term of this Agreement, the Supplier shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $5,000,000 dollars with financially sound and reputable insurers. Upon LiftWerx's request, the Supplier shall provide LiftWerx with a certificate of insurance from the Supplier's insurer evidencing the insurance coverage specified in these Terms. The certificate of insurance shall name LiftWerx as an additional insured. The Supplier shall provide LiftWerx with 30 days' advance written notice in the event of a cancellation or material change in the Supplier's insurance policy. Except where prohibited by law, the Supplier shall require its insurer to waive all rights of subrogation against the Supplier's insurers and the Supplier.
16. COMPLIANCE WITH LAW: The Supplier is in compliance with and shall comply with all applicable laws, regulations and ordinances. The Supplier shall maintain in effect all the licences, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. The Supplier shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by the Supplier. The Supplier assumes all responsibility for shipments of Goods requiring any government import clearance. LiftWerx may terminate this Agreement if any governmental authority imposes antidumping or countervailing or any retaliatory duties or any other penalties on Goods.
17. TERMINATION: In addition to any remedies that may be provided under these Terms, LiftWerx may terminate this Agreement with immediate effect upon written notice to the Supplier, either before or after the acceptance of the Goods or the seller's delivery of the Services, if the Supplier has not performed or complied with any of these Terms, in whole or in part. If the Supplier becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, liquidation, reorganization, or assignment for the benefit of creditors, then the LiftWerx may terminate this Agreement upon written notice to the Supplier. If LiftWerx terminates the Agreement for any reason, the Supplier's sole and exclusive remedy is payment for the Goods received and accepted and Services accepted by LiftWerx prior to the termination.
18. WAIVER: No waiver by LiftWerx of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by LiftWerx. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
19. CONFIDENTIAL INFORMATION: All non-public, confidential, or proprietary information of LiftWerx, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by LiftWerx to the Supplier, 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 with this Agreement is confidential, solely for the purpose of performing this Agreement and may not be disclosed or copied unless authorized in advance by LiftWerx in writing. Upon LiftWerx's request, the Supplier shall promptly return all documents and other materials received from LiftWerx. LiftWerx shall be entitled to injunctive relief for any violation of this paragraph. This paragraph does not apply to information that is: (a) in the public domain; (b) known to the Supplier at the time of disclosure; or (c) rightfully obtained by LiftWerx on a non-confidential basis from a third party.
20. FORCE MAJEURE: No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such party's ("Impacted Party") failure or delay is caused by or results from the following force majeure events (the "Force Majeure Events"): acts of God, flood, tsunami, fire, earthquake, explosion, epidemics, pandemics, war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, government order, law or actions, embargoes or blockades in effect on or after the date of this Agreement. The Impacted Party shall promptly give notice of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of 60 days following written notice given by it under this paragraph, the other party may thereafter terminate this Agreement upon 10 days' written notice.
21. ASSIGNMENT: The Supplier shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of LiftWerx. No assignment or delegation shall relieve the Supplier of any of its obligations hereunder. LiftWerx may at any time assign or transfer any or all of its rights or obligations under this Agreement without the Supplier's prior written consent to any affiliate or to any person acquiring all or substantially all of LiftWerx's assets.
22. RELATIONSHIP OF THE PARTIES: The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Agreement.
23. NO THIRD-PARTY BENEFICIARIES: This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
24. GOVERNING LAW: All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein without giving effect to any choice or conflict of law provision or rule (whether of the Province of Ontario or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Province of Ontario. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
25. CHOICE OF FORUM: Any legal suit, action, litigation or proceeding of any kind whatsoever in any way arising out of, from or relating to this Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement and all contemplated transactions, shall be instituted in the courts of the Province of Ontario and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation or proceeding. Service of process, summons, notice, or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action, litigation, or other proceeding brought in any such court. Each party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The parties irrevocably and unconditionally waive any objection to the venue of any action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
26. NOTICES: Each party shall deliver all notices, requests, consents, claims, demands, waivers and other communications under this Agreement (other than routine communications having no legal effect) (each, a "Notice") in writing and addressed to the parties at the addresses set forth on the face of the Purchase Order (or to such other address that may be designated by the receiving party from time to time in accordance with this paragraph). Notices sent in accordance with this paragraph will be conclusively deemed validly and effectively given: (a) on the date of receipt, if delivered by personal delivery, or by courier (with all fees prepaid); or (b) upon the sender's receipt of an acknowledgment from the intended recipient (such as by the "read receipt" function, as available, return email or other form of written acknowledgment), if delivered by email.
27. SEVERABILITY: If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
28. SURVIVAL: Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, paragraphs 15, 16, 19, 24, 25 and this paragraph 28.
29. AMENDMENTS AND MODIFICATIONS: These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.