PO Terms & Conditions
Standard Terms of Purchase
1. Acceptance
Each Purchase Order issued by Azure will be deemed accepted by the Supplier
unless the Supplier rejects the same in writing within five business days after the
date thereof or delivers the ordered items to Azure. Acceptance of a Purchase
Order is expressly limited to the terms thereof. If there is any inconsistency
between the terms of a Purchase Order and any purported acceptance, the
terms of the Purchase Order will prevail.
2. Price
The supplier agrees that
(a) if the price is omitted from this order or any part of this order, Supplier’s price
will not be higher than supplier’s lowest prevailing price for corresponding
items as of the date hereof, and
(b) Any reduction in price in any item covered by this order made subsequent to
its receipt by the supplier shall be applicable hereto.
3. Extra Charges
No extra charges of any kind, including charges for packing or cartage will be
allowed unless specifically agreed to by Azure in advance.
4. Overshipments, Installments
Azure will pay only for maximum quantities of products ordered. Overshipments
will be held at Seller’s risk and expense for a reasonable time awaiting shipping
instructions. Return shipping charges for excess quantities will be at Supplier’s
expense. Any provision in a Purchase Order for delivery of items by installment
will not be construed as rendering the obligations of the Supplier severable and
Azure will only be obliged to pay the price of the products included in such
installment after such installment is actually received by Azure.
5. Packing and Shipment
No charges will be allowed for boxing, crating, handling damage, carting,
drayage, storage or other packing requirements. Unless otherwise specified, all
supplies shall be packed, packaged, marked and otherwise prepared for
shipment in a manner which is:
(a) in accordance with good commercial practice;
(b) acceptable to common carriers for shipment at the lowest rate for the
particular supplies
(c) adequate to insure safe arrival of the supplies at the name destination.
Seller shall mark all containers with necessary lifting, handling and
shipping information, purchase order numbers, date of shipment and the
names of the consignee and consignor. An itemized packaging sheet
must accompany each shipment. No partial or complete delivery shall be
made hereunder prior to the date or dates shown unless Azure has given
prior written consent.
6. F.O.B. Point
Unless otherwise specifically provided on the face of this order, the supplies
called for hereunder shall be delivered on a F.O.B. origin basis.
7. Warranties
The Supplier warrants, represents, covenants and agrees as follows:
(a) the products supplied pursuant to each purchase order will (I) be in full
compliance with the specifications, blueprints, drawings and data as may be
amended from time to time, (ii) be of merchantable quality; (iii) fit for the use
intended by Azure; (iv) be in conformance with samples, if any, approved by
Azure; and (v) free from any actual or claimed patent, copyright, trade secret,
mask work right or trademark infringement and (vi) be so supplied, and Azure will
have title thereto, free and clear of all liens, charges, encumbrances and security
interests;
(b) the warranties contained in this §7 are the only warranties made by the
Supplier concerning the products and such warranties will survive the
acceptance of the products and the payment therefor by Azure. For greater
certainty, Azure acknowledges that the Supplier has given no warranties,
express or implied, other than those set forth in this §7.
(c) The warranty period is for one year after delivery unless otherwise stated in a
purchase order.
(d) If any product delivered hereunder does not meet the warranties specified
herein or otherwise applicable, Azure may, at its option: (i) require the Seller
to correct at no cost to Azure any defective or non-conforming supplies by
repair or replacement; or (ii) return such defective or non-conforming supplies
at the Supplier’s expense to the Supplier and recover from the Supplier the
order price thereof; or (iii) correct the defective or non-conforming supplies
itself and charge Seller with the cost of such correction. (iv) purchase the
product from other sources and recover the difference in price from the
Supplier. The foregoing remedies are in addition to all other remedies at law
or in equity or under this order, and shall not be deemed to be exclusive.
(e) Azure’s approval of the Supplier’s material or design shall not relieve the
Seller of the warranties set forth in this clause, nor will any waiver by Azure of
any drawing or specification requirement for one or more of the items ordered
constitute a waiver of such requirements for the remaining items to be
delivered hereunder unless so stated by Azure in writing.
8. Invoices
Each invoice issued as a result of a purchase order shall:
(a) be rendered separately for each delivery;
(b) not cover more than one Purchase Order;
(c) contain the Purchase Order number under which it is issued; and
(d) be rendered to the proper Accounts Payable Department of Azure as set
forth on the Purchase Order. Invoice payment terms will be calculated
from the date the invoice is received by the proper Accounts Payable
Department of Azure.
9. Inspection
Each and every item purchased hereunder is subject to Azure inspection and
approval at any place Azure may reasonably designate. Azure expressly
reserves the right, without liability hereunder or otherwise, to reject and refuse
acceptance of items that do not conform in all respects to:
(a) any instructions contained in the relevant purchase order;
(b) Azure’s specifications, drawings, blueprints and data; and
(c) The Supplier’s warranties and each of them whether such warranties be
expressed or implied. With respect to any items which do not so conform,
Azure may, in Azure’s sole discretion, hold such items for Supplier’s
inspection at the Supplier’s risk upon notification to Supplier or return such
items to the Supplier at the Supplier’s expense. Payment for any items
shall not be deemed an acceptance thereof.
10. Changes
Azure reserves the right at any time to change any one or more of the following:
(a) specifications, drawings, blueprints and data concerning the products;
(b) method of packaging, packing or shipment of the products; and
(c) place and/or time of delivery of such products.
The Supplier will not unreasonably deny any request by Azure for such changes.
If the Supplier agrees to make such changes, and such changes cause an
increase or decrease in the cost or the time required for the delivery of the
products ordered, an equitable adjustment will be made in the price or delivery
schedule, or both. Any claim for adjustment by the Supplier will be deemed
waived unless asserted in writing within 30 days after receipt by the Supplier of
the requested change. Nothing in this section §10 will relieve the Supplier from
proceeding without delay in the performance of its obligations under a purchase
order as changed. Any changes to the specifications, drawings, blue prints and
data concerning the Products that are requested by Azure will be deemed to be
the confidential information of Azure. The Supplier and Azure will, at Azure’s
option, enter into a development agreement to protect Azure’s
confidential information and provide for the exclusive supply to Azure for the
changed Product.
11. Indemnification:
The Supplier shall indemnify and hold Azure harmless from any claim, demand,
cause of action or damage for which Azure might become liable arising from or in
connection with the Supplier’s under a purchase order.
12. Patents
The Supplier agrees to defend at the Supplier’s own expense, all suits, actions or
proceedings in which Azure, any of the Azure’s distributees or dealers, or the
users, lessees or customers of any of Azure’s products, are made defendants for
actual or alleged infringement of any copyright, trademark, trade secret, mask
work right or Canadian, U.S. or other foreign patent resulting from the use or sale
of the items purchased hereunder. If any virtue of a patent infringement suit an
injunction shall issue against Azure, which prohibits or limits the use of any items
purchased hereunder, the Supplier at Azure’s request shall supply Azure with
non-infringing replacement items of a similar kind and quantity.
13. Compliance with Law
The Supplier warrants and represents that it has complied with, and will continue,
during the performance of it’s obligations hereunder, to comply with, all laws and
conform to all requirements of each applicable governmental authority with
respect to the supply of the Products, including those concerning the packaging,
storage and shipment thereof, and will ensure that no chemical substance
delivered to Azure is on the list of prohibited substances described in applicable
environmental laws. The Supplier will obtain all federal, provincial, state,
municipal and other government or regulatory licenses, permits or other
documents or permissions that are required by Azure or are incidental to the sale
or shipment of the products to Azure.
14. Non-Publicity
Without the prior written consent of Azure, the Supplier shall neither:
(a) issue any news release, public announcement, denial or confirmation of
any Purchase Order or its subject matter; or
(b) in any manner advertise or publish the fact that Azure has placed a
purchase order for any product with the Supplier.
15. Azure’s Property
All tooling, equipment and products of every description furnished to the Supplier
by Azure or specifically paid for by Azure and any replacement thereof, shall
remain the property of Azure. Such property, and whenever practical, each
individual item thereof, shall be plainly marked or otherwise adequately identified
as “Property of Azure Corp.” and shall be safely stored separately and apart from
the Supplier’s property. The Supplier shall not substitute any property for Azure’s
property and shall not use such property, except in filling Azure’s orders. Such
property while in the Supplier’s custody or control shall be held at the Supplier’s
expense, and will be insured by the Supplier in an amount equal to the
replacement cost with loss payable to Azure Corp. Such property shall be
prepared for shipment and delivered in good condition, normal wear and tear
excepted to Azure, F.O.B. the Supplier’s plant, immediately upon request by
Azure.
17. Confidential Relationship
The Supplier shall treat as confidential all specifications, drawings, blueprints and
data supplied by Azure. The Supplier shall not disclose any information relating
to this order to any third person that is not entitled to receive it.
18. Termination
Azure may require the Supplier to terminate work under a purchase order in
whole or in part at any time by notice to the Supplier in writing, whereupon the
Supplier will immediately stop work on such purchase order, or the terminated
portion thereof, and notify its subcontractors to do likewise.
Except for such termination as is caused by a default or delay of the Supplier, the
Supplier will be entitled to actual costs incurred by it as a result of such
termination as determined in accordance with generally accepted accounting
principles. The Supplier will be bound to mitigate its damages. In no event will
the amount claimed by the Supplier as a result of such termination exceed the
cancelled commitment value of the relevant purchase order.
19. Termination for Default
Azure and the Supplier covenant and agree as follows:
(a) Azure may, written notice, terminate a purchase order in whole or in
part if the Supplier fails (i) to make delivery of the Products or to
perform the services in the manner and within the time specified therefor or any extension thereof by written change order or
amendment, or (ii) to replace or correct defective products in
accordance with §7, or (iii) to perform any other provision of the
purchase order, or (iv) fails to make progress so as to endanger
performance of its obligations under a purchase order. Azure is the
sole judge of the circumstances described in this §19(a);
(b) If a purchase order or any part thereof is terminated by reason of the
Supplier’s default, Azure may procure from other sources, upon such
terms and in such manner as Azure may deem appropriate, products or
services the same as or substantially similar to those that were the
subject matter of the terminated portion of the purchase order, and the
Supplier will be will be liable to Azure for any additional costs incurred
by Azure thereby. The Supplier will continue to be responsible for its
obligations under the purchase order to the extent that the same have
not been terminated.
(c) If a purchase order is terminated by reason of the Supplier’s default,
the Supplier will transfer title to and deliver to Azure, promptly at
Azure’s request, in the manner and to the extent directed by Azure, (i)
any completed products, and (ii) such partially completed products as
the Supplier has produced or acquired for the performance of the
terminated part of the purchase order. The Supplier will protect and
preserve all such property that is in the possession of the Supplier. The
Supplier’s obligations hereunder as to delivery, protection and
preservation will not be contingent upon prior agreement as to the
pricing or cost of such products; and
(d) failure by Azure to enforce any of its rights under a purchase order will
not be deemed a waiver thereof. The rights and remedies of Azure
under a purchase order will not be exclusive and are in addition to any
other rights and remedies available to Azure.
20. Attorney’s Fees
If the Seller and Azure are unable to resolve any dispute arising under this order
and any suit or other judicial proceeding is instituted with reference thereto, the
successful party in any such suit or other judicial proceedings shall be paid
promptly by the other party an additional amount equal to the successful party’s
reasonable attorney’s fees and costs incurred.
21. General
(a) time will be of the essence thereof;
(b) in the event of any conflict between any term of a Supply Agreement and
the terms of a purchase orders, the terms of the Supply Agreement will
govern unless the terms of the purchase order specifically state otherwise;
(c) waiver by a party of any of its rights or default by the other under a
purchase order will not be deemed a waiver by such party of any other
right or default;
(d) the Supplier will not change a purchase order or ship non-conforming
products without first obtaining the written consent of Azure.
(e) The Supplier will, from time to time upon request by Azure, do, execute,
acknowledge, deliver, or cause to be done, executed, acknowledged and
delivered, all and every such further acts, bill of sale, bills of lading, deeds,
transfers and assurances as Azure may reasonably request to evidence or
protect Azure’s interest in the products ordered.
22. Assignments
The Supplier may not assign any rights or obligations under a purchase order
(including the right to receive monies due thereunder) without the prior written
consent of Azure, and any purported assignment without such consent will be
void. No assignment will relieve the assigning party from its obligations under a
purchase order.
23. Notice of Labour Disputes
Whenever an actual or potential labour dispute is delaying or threatens to delay
the timely performance of this order, The Supplier will immediately notify Azure of
such dispute and furnish all relevant details. Receipt by Azure of such notice
shall not constitute a waiver of the delivery schedule hereunder.
24. Applicable Law
This order shall be governed by, subject to and construed in accordance with the
laws of the Province of British Columbia