Purchase Order - Standard Terms and Conditions
These Standard Terms and Conditions are incorporated into and form part of the Purchase Order. The Purchase Order is comprised of these Standard Terms and Conditions together with the front-end page(s) generated by ethosIQ (or any successor program from time to time adopted by ethosIQ), including any other documents or components referenced in the front-end page(s) as being part of the Purchase Order, and any change orders, addenda, revisions, amendments and supplementary agreements issued by ethosIQ from time to time pertaining thereto (as approved by the “Supplier” or “Vendor”, if such approval is required according to the Purchase Order). The terms “Supplier” and “Vendor” are used interchangeably in the Purchase Order - both refer to the entity identified as the “Supplier” or the “Vendor” on the front-end page(s).
1. The Work
As to work, including services, (the “Work”) to be performed or supplied by Supplier:
1.1 Supplier shall perform the Work set out in this Purchase Order in a proficient, diligent and timely manner and in accordance with any directives and requirements reasonably prescribed by ethosIQ from time to time in connection with this Purchase Order.
1.2 Supplier shall ensure that all persons it employs or retains to perform the Work are competent to perform it and are properly trained, instructed and supervised.
1.3 Supplier shall not change any persons it employs or retains to perform the Work without prior written approval from ethosIQ.
1.4 Supplier shall supply and pay for all labor, materials, supplies, equipment, facilities, approvals and licenses necessary or advisable to perform its obligations under this Purchase Order.
As to supplies, equipment, furniture, wares, merchandise, materials and other goods (the “Goods”) to be supplied by Supplier:
2.1 Supplier shall provide the Goods described in this Purchase Order, during the Term pursuant to the dates set out on the Purchase Order, regardless of the date of execution or delivery of this Purchase Order.
2.2 Unless the parties otherwise agree in writing, Supplier shall supply and pay for all labor, materials, supplies, equipment, facilities, approvals and licenses necessary or advisable to perform its obligations under this Purchase Order.
2.3 Supplier warrants that all Goods will: a. conform to any samples, specifications, drawings or other description furnished by ethosIQ; and b. be new, of merchantable quality, free from any defect in material or workmanship, and fit for any purpose expressly disclosed by ethosIQ to Supplier. 2.4 Supplier warrants that it has or will have at the time of delivery to ethosIQ good and marketable title to the Goods and that, on payment for the Goods, ethosIQ will obtain such title to the Goods free and clear of all liens, charges and encumbrances.
2.5 Supplier warrants that neither the supply of any Goods to ethosIQ nor the use of those Goods by ethosIQ will constitute an infringement of any patent, copyright, trade-mark, trade secret or other intellectual property right of any third party.
2.6 As to the delivery of Goods: a. Delivery slips will accompany all shipments of Goods and identify those Goods shipped, previously shipped or back ordered, as the case may be, and will show the Purchase Order number, the place from where the Goods were shipped, the name of the carrier and the bill of lading number. b. Unless otherwise specified in the Purchase Order, all deliveries of Goods will be made on terms "DDP" (delivered duty paid to a named place of destination), as that term is defined in the publication Incoterms 2010 published by the International Chamber of Commerce. As a result, Supplier will bear all risks and costs, including duties, taxes and other charges, of delivering the Goods, cleared for importation, to ethosIQ's named destination. c. Where a date required for delivery is stated on the Purchase Order, timely delivery is of the essence and Supplier will be responsible to ensure that such delivery is made, and will notify ethosIQ immediately in writing of any anticipated delays and the reasons therefor. d. Goods will not be deemed or construed to be delivered until actually received by ethosIQ at the place designated on the Purchase Order for shipment of the Goods. e. Supplier will notify ethosIQ immediately in writing if the Goods cannot be delivered in the quantities shown or at the times specified on the Purchase Order. f. All Goods will be properly classified, described, packaged, marked and labeled by Supplier for shipment, and will be in proper condition for shipping by the mode of transportation chosen and in accordance with any applicable provincial or federal laws or regulations. g. Where by reason of a delay in shipment, it is necessary to make expedited or express or air express shipments of the Goods in order to deliver the Goods on the date required in the Purchase Order, ethosIQ may direct that the Goods be so shipped, and the difference between the freight and the applicable expedited or express rates will be paid by Supplier and may be deducted by ethosIQ.
3.1 The performance of this Purchase Order will be subject to ethosIQ's scrutiny, inspection and rejection, at Supplier’s cost, and Supplier will:
permit any representative of ethosIQ to attend at the place(s) of performance by Supplier; and
provide all reasonable assistance to any representative of ethosIQ for the purpose of inspection.
3.2 Payment for the Work or Goods prior to inspection will not constitute an acceptance thereof.
4.1 The total compensation for the Work and Goods, as applicable, are set out in this Purchase Order.
4.2 The compensation as set out in this Purchase Order shall be inclusive of all expenses incurred by Supplier, and of all fees for any subcontractors or suppliers engaged by Supplier in relation to this Purchase Order. Supplier shall ensure timely payment of all such subcontractors and suppliers.
4.3 Upon satisfactory completion of the performance of this Purchase Order by Supplier, Supplier shall deliver to ethosIQ an invoice setting out the Purchase Order number, the outstanding balance owed, and the calculation of the entire compensation and applicable payments and credits.
4.4 Within 45 days of receipt of the invoice from Supplier, ethosIQ shall pay the amount of the balance properly due to Supplier, plus applicable Sales Tax as provided for in Section 6, as applicable.
4.5 ethosIQ may withhold or set off against any payment due to Supplier any charge, liability or indebtedness owed by Supplier to ethosIQ or which under this Purchase Order is to be paid by or charged to Supplier.
4.6 ethosIQ may, as a condition of making final payment due to Supplier, require Supplier to execute and deliver a full and final release and discharge in favor of ethosIQ, in such form as ethosIQ may prescribe.
4.7 Unless otherwise specified in this Purchase Order, all references to monetary amounts are in Canadian currency.
5.1 ethosIQ may make changes at any time and from time to time to any specifications or requirements relating to the Work or the Goods. The compensation set out in this Purchase Order shall be adjusted to account for such changes, provided Supplier notifies ethosIQ in writing of the proposed adjustment and ethosIQ agrees in writing to such adjustment prior to performance of the Work or shipment or delivery of the Goods. 5.2 No extras or other changes shall be undertaken or commenced without an authorized approval or change order issued by ethosIQ.
6.1 ethosIQ shall be liable for Sales Tax and unless otherwise expressly stipulated Sales Tax as may be applicable.
6.2 If Supplier is not registered for charging Sales Tax, then, where applicable, ethosIQ may self-assess and remit the Sales Tax to or as directed by Internal Revenue Service or applicable agencies.
6.3 In this Purchase Order: a. “Sales Tax” refers to the taxes on goods and services levied and administered by the United States Government, which is commonly referred to as the applicable Taxes, and, for so long as the tax in effect in the taxing district. b. “Sales Tax” refers to the harmonized sales tax (encompassing, for greater certainty, both the federal and provincial components), for so long as it is in effect in the effect in the taxing district; and
6.4 Unless otherwise specified in this Purchase Order, Supplier shall be responsible for and shall pay any other applicable taxes, rates, customs, charges, duties, imposts and levies.
6.5 If Supplier is not a resident of the United States, ethosIQ may be required by law to withhold income tax, for services provided in United States, from Supplier and to remit such tax to or as directed by USA Internal Revenue Service, on behalf of Supplier. If Supplier is not a resident of USA or in case of any uncertainty as to whether Supplier is a non-resident, ethosIQ is entitled to withhold and remit, and shall be credited under this Purchase Order for all remittances. If ethosIQ was required to withhold income tax but failed to withhold, then Supplier will on demand pay to ethosIQ the amount of the required withholding to reimburse ethosIQ for the amount required to be remitted.
6.6 Supplier shall apply for and, immediately on receipt, remit to ethosIQ any available refund, credit, rebate or remission of federal or provincial tax or duty that ethosIQ has paid Supplier or agreed to pay Supplier under this Purchase Order.
7. Liens and Builders Lien Act
7.1 Provided that payment is made by ethosIQ when due according to the terms of this Purchase Order, Supplier is responsible to ensure that no builders lien or claim of builders lien is filed or claimed by Supplier or any of its employees, personnel or subcontractors, and if any such lien or claim of lien is filed or claimed then Supplier shall, by payment into court or posting of a bond or otherwise, cause the same to be forthwith removed and discharged.
7.2 ethosIQ may hold back as required (as reasonably interpreted and applied by ethosIQ) under the applicable Law(s).
8. Suspension of Performance and Termination of the Purchase Order
8.1 ethosIQ may at any time temporarily suspend the performance under or terminate this Purchase Order by written notice to Supplier stating the effective date of the suspension or termination.
8.2 If ethosIQ terminates this Purchase Order, the extent of ethosIQ’s liability to Supplier is limited to payment, subject to Section 4.5, for all compliant Goods supplied and compliant Work performed in accordance with this Purchase Order up to and including the effective date of termination. This payment discharges ethosIQ from all liability or obligation to Supplier in connection with this Purchase Order or its termination.
9.1 Supplier shall at all times, at Supplier's expense, take out and maintain in good standing professional liability insurance (as applicable) and general (comprehensive commercial) liability insurance, including product liability coverage, all-risk contractors’ equipment insurance, and automobile liability insurance, with such insurers and providing for such amounts of coverage as may be reasonably required by ethosIQ from time to time, and will promptly deliver up to ethosIQ, as and when requested, written proof of such insurance. If requested, ethosIQ will be named as an additional insured under any such policy. If requested by ethosIQ, such insurance will provide that it cannot be cancelled, or materially changed so as to affect the coverage provided under this Purchase Order, without the insurer giving at least 30 days prior written notice to ethosIQ. The general (comprehensive commercial) liability insurance shall be for $2,000,000 unless otherwise from time to time reasonably required by ethosIQ.
9.2 Supplier may be required to take out such additional insurance as may be considered necessary and desirable by ethosIQ. All such additional insurance shall be at no expense to ethosIQ.
10.1 Supplier will fully indemnify and save harmless ethosIQ and its board of governors and every member thereof and the employees, students, servants, agents and representatives of ethosIQ from any loss, damage, demand, claim (including any lien), expense and liability (including in respect of physical injury or death) arising in connection with (i) any failure, breach or default under this Purchase Order or in the performance of this Purchase Order; (ii) any negligence or wrongful act of Supplier or its officers, directors, employees, servants, agents or subcontractors; and (iii) any physical harm to or destruction of personal or real property caused by Supplier. In addition, Supplier shall reimburse ethosIQ, on a full indemnity basis, in respect of all legal fees and disbursements incurred in respect of the foregoing. This indemnity shall survive any termination or expiry of this Purchase Order.
11. Freedom of Information and Protection of Privacy Act
11.1 ethosIQ may choose, in the interest of public accountability, to make public or disclose this Purchase Order and associated records and information, in whole or in part. Supplier agrees that ethosIQ shall be entitled to do so and consents thereto (except only for any specific information isolated and identified by Supplier as confidential, and for which, if required by ethosIQ, Supplier establishes that disclosure is excluded under Freedom of Information and Protection of Privacy Act).
11.2 If Supplier falls within the meaning of "service provider" as that term is defined under Freedom of Information and Protection of Privacy Act, then Supplier shall comply with applicable requirements of Freedom of Information and Protection of Privacy Act relative to personal information.
Supplier shall not, and shall ensure that its employees, personnel and subcontractors do not, use, copy, disclose or otherwise communicate, any information gained by them in the course of their duties related to this Purchase Order (and not generally available to the public) except as is necessary in the proper discharge of those duties. This obligation shall survive any termination or expiry of this Purchase Order.
13. Ownership of Proprietary Rights
13.1 ethosIQ will be the owner of all right, title and interest (collectively the "IP Rights") including all worldwide patent, copyright, trade-mark, trade secret, industrial design and other intellectual property rights of any kind in and to all inventions, ideas, concepts, designs, data, software, specifications, documents, compilations, works and the like (collectively the "IP Works") developed, made, invented, created, authored, generated, conceived or contributed to by Supplier or any subcontractor in connection with the subject matter or this Purchase Order or any Purchase Order. Supplier hereby waives all moral rights relative to the IP Works. ethosIQ shall at all times have the right to control and review all IP Works. Upon the request from time to time of ethosIQ Supplier will provide or cause to be provided written assignments and waivers of moral rights for all worldwide intellectual and other property rights in and to all such IP Works in order to evidence the ownership of such IP Works by ethosIQ, as may from time to time be reasonably required by ethosIQ, including copies of written assignment agreements and waivers of moral rights by employees and independent contractors.
13.2 The IP Works do not include those that were independently developed, made, invented, created, authored, generated, conceived or contributed to by Supplier or any subcontractor prior to Supplier entering into this Purchase Order with ethosIQ, provided Supplier or subcontractor as applicable can prove such independent development through written records. As to any such excluded items, Supplier hereby grants a perpetual, non-exclusive, royalty free, no-charge, worldwide, irrevocable license in favor of ethosIQ, for use by ethosIQ for ethosIQ’s proposed purposes and associated and ancillary purposes.
13.3 The IP Works are deemed to be confidential information and for this purpose, Supplier shall comply with Section 12 with respect to the IP Works.
13.4 Supplier represents and warrants that no third party has any right or claim to any intellectual property in the IP Works, or any part thereof, and the IP Works, and the use thereof by ethosIQ, will not infringe the intellectual property rights of any person.
13.5 For greater certainty, the indemnity in Section 10 shall apply in respect of the subject matter of this Section 13.
14. Independent Contractor
14.1 By mutual agreement, the terms of this Purchase Order will be carried out by Supplier as an independent contractor at arm’s length from ethosIQ, and not in any other capacity or relationship including agency, partnership or employee-employer.
15. Conflicts of Interest; Supplier Code of Conduct; Remedies
15.1 While performing under this Purchase Order, Supplier may offer and provide work, services or goods as an independent contractor to other parties (including others at ethosIQ) provided that such outside contracts or retainers do not interfere in any way with Supplier’s performance under this Purchase Order, or give rise to a conflict of interest between Supplier’s duties to such other parties and Supplier’s duties to ethosIQ under this Purchase Order
15.2 Supplier hereby declares that no potential, actual or perceived conflict of interest exists with respect to the subject of this Purchase Order. If Supplier becomes aware of any potential, actual or perceived conflict of interest, Supplier shall notify ethosIQ immediately.
15.3 Supplier shall comply with the ethosIQ Supplier Code of Conduct, which is available by calling 1-281-630-0112.
15.4 If ethosIQ becomes aware of any failure, breach or non-compliance in connection with the subject matter of this Section 15, including situations of a potential, actual or perceived conflict of interest that are undisclosed or were not disclosed in a timely manner, then, in addition to its other rights and remedies, ethosIQ may, upon review of the situation or circumstances, in its sole discretion, elect to terminate this Purchase Order without liability to Supplier (other than for Work or Goods supplied to date, subject to deduction for consequential loss or any costs that may be incurred by ethosIQ as a result of such termination), or ethosIQ may approve of the situation or circumstances and take such measures as ethosIQ considers are warranted (and for greater certainty Section 22 shall apply in this context).
16. Supplier Accountable
16.1 Supplier shall be responsible and accountable for its agents, contractors, suppliers, invitees, officers, directors and employees and any assignees, and their respective agents, contractors, suppliers, invitees, officers, directors and employees and any assignees.
17. Worker Safety
17.1 Supplier shall comply with, and shall ensure that any subcontractors comply with, all relevant WorkSafeBC (Workers' Compensation Board of BC) requirements and other workers’ safety requirements and regulations.
18. Foreign Workers
18.1 It is the responsibility of Supplier to ensure that it has obtained all necessary employment authorizations for any foreign workers and contractors.
19. Assignment and Subcontracting Restricted
19.1 Supplier shall not assign or otherwise transfer this Purchase Order in whole or in part, or subcontract any of its obligations under this Purchase Order, except with the prior written consent of ethosIQ.
20.1 No addition, deletion or other modification to the provisions of any other part of this Purchase Order will be binding on ethosIQ unless accepted in writing by ethosIQ.
21. Manufacturer Warranties
21.1 Supplier shall assign all manufacturer warranties to ethosIQ for products manufactured by third party manufacturers and provided to ethosIQ by Supplier pursuant to this Purchase Order, and shall take all necessary steps as required by such third party manufacturers to effect assignment of such warranties to ethosIQ. Payment by ethosIQ to Supplier under this Purchase Order may be deferred, as to all or part as ethosIQ may require, until the foregoing has been carried out to the satisfaction of ethosIQ.
22. Approval etc.
22.1 No provision in this Purchase Order requiring ethosIQ's consent or approval shall be deemed to have been fulfilled or waived unless the written consent or approval of ethosIQ relating to the particular matter or instance has first been obtained and, without limiting the generality of the foregoing, no prior consent or approval and no condoning, excusing or overlooking by ethosIQ on previous occasions when such a consent or approval was required shall be taken to operate as a waiver of the necessity of such consent or approval whenever required under this Purchase Order.
22.2 Where any provision of this Purchase Order requires the consent or approval of ethosIQ, then: a. such provision will not be construed, interpreted or applied to mean that ethosIQ’s consent or approval will not be unreasonably withheld, unless such provision expressly states that ethosIQ’s consent or approval will not be unreasonably withheld; and b. ethosIQ may stipulate reasonable requirements and terms, as a condition of giving such consent or approval, and ethosIQ may withhold its consent or approval until such requirements and terms have been satisfied and complied with, and Supplier hereby covenants with ethosIQ that, unless Supplier withdraws its request for ethosIQ’s consent or approval forthwith after Supplier is advised of the requirements and terms stipulated by ethosIQ, Supplier will satisfy and comply with any requirements and terms so stipulated by ethosIQ.
23. Entire Agreement and Conflicts
23.1 This Purchase Order (including any documents or components referenced as part of the Purchase Order, as described above) constitutes (together with any change orders, addenda, revisions, amendments and supplementary agreements in effect from time to time, as described above) the entire agreement between the parties with respect to the subject matter set out herein and supersedes and replaces all prior agreements between ethosIQ and Supplier with respect to the same. The provisions of this Purchase Order will take precedence over any conflicting provisions in any invoice or statement of account.
24. General Provisions
24.1 In all provisions of this Purchase Order containing a release or disclaimer or waiver or exculpatory language in favor of ethosIQ or an indemnity in favor of ethosIQ, references to ethosIQ include (whether or not expressly stated) the ethosIQ board of governors and every member thereof, and all directors, officers, agents, servants, students, employees and representatives of ethosIQ and its affiliated entities, it being understood and agreed that, for the purposes of this Section 24.1 and such provisions of this Purchase Order, ethosIQ is deemed to be acting as agent and trustee on behalf of them and for their benefit to the extent necessary for them to receive and be entitled to the benefits of this Section 24.1 and such provisions. Supplier will, upon the request from time to time of ethosIQ, execute and deliver, under seal as a deed if so requested by ethosIQ, an affirmation and covenant in favor of any one or more of the said persons, as may be nominated from time to time by ethosIQ, in form and content reasonably prescribed by ethosIQ, to give effect or further effect, if deemed necessary by ethosIQ in its sole determination, to the provisions of this Section 24.1.
24.2 Supplier shall comply with all applicable and relevant laws, regulatory standards and rules, including any rules, regulations, policies and procedures from time to time prescribed by ethosIQ, relative to the subject matter of this Purchase Order. Without limiting the generality of the foregoing, in the absence of other standards being stipulated:
24.3 This Purchase Order shall be governed by and construed in accordance with the laws of the State of Texas and the federal laws of United States applicable therein, without reference to State of Texas conflicts of law rules. Supplier hereby attorns to the jurisdiction of the Courts of the State of Texas in the event of any dispute or proceeding hereunder.
24.4 The provisions of these terms and conditions shall (whether or not expressly stated) survive the completion of the performance of this Purchase Order.
24.5 This Purchase Order will ensure to the benefit of ethosIQ and its successors and assigns and will be binding on Supplier and its successors. 24.6 A waiver by ethosIQ of any of its rights hereunder will not be deemed to be a waiver of any other right nor a continuing waiver of that particular right.
24.7 Supplier acknowledges that no exclusive right, pre-emptive right, right of first opportunity, or other similar right, express or implied, is given to or conferred upon Supplier under or by virtue of or related to this Purchase Order, unless expressly set out in this Purchase Order.
24.8 Any notice required to be given to Supplier under this Purchase Order will be in writing and may be given by delivery in person or by courier, by registered or certified mail, or by electronic facsimile transmission or other means of electronic communication capable of producing a printed copy to the mailing address, facsimile number or email address of Supplier stated in this Purchase Order, or such other address, facsimile number or email address as Supplier may specify by notice in writing given from time to time to ethosIQ. Any such notice given to Supplier will be deemed to have been given and received by Supplier, if by facsimile or other electronic communication, on successful transmission, or, if delivered, on delivery. For any notice required to be given to ethosIQ under this Purchase Order, notice in writing addressed and delivered by courier to:
Purchasing Operations Manager, ethosIQ 17121 West Rd. Suite 201 Houston, TX 77095
(or such other address as ethosIQ may from time to time specify by notice in writing given to Supplier) shall be required, and will be deemed to have been given and received on such delivery.
24.9 Time is of the essence of this Purchase Order. The Work is to be performed and Goods are to be supplied in accordance with the schedule provided by ethosIQ or, if no schedule is provided, in accordance with the dates indicated on this Purchase Order. ethosIQ reserves the right to make reasonable adjustments from time to time to the said schedule or dates.
24.10 Should any provision of this Purchase Order be or become illegal, invalid or not enforceable, it shall be considered separate and severable from this Purchase Order and the remaining provisions shall remain in force and binding.
24.11 The headings in this Purchase Order are for convenience of reference only and shall not affect the construction of this Purchase Order or any provision hereof.
24.12 ethosIQ may convert paper records of this Purchase Order and all other associated documentation (each, a “Paper Record”) into electronic images (each, an “Electronic Image”). Each such Electronic Image shall be considered as an authoritative copy of the Paper Record and shall be legally binding on the parties and admissible in any legal, administrative or other proceeding as conclusive evidence of the contents of such document in the same manner as the original Paper Record.
24.13 Whenever the singular or masculine or neuter is used in this Purchase Order, the same shall be construed to include the plural or feminine or body corporate where the context of this Purchase Order or the parties hereto may so require. The words “include” or “including” as used herein shall not be construed as words of limitation.
24.14 Supplier shall be deemed to have accepted these Standard Terms and Conditions, and the rest of this Purchase Order, upon the earlier of: (i) written notice given by Supplier to ethosIQ that it has accepted and agreed to these Standard Terms and Conditions and the rest of this Purchase Order; and (ii) commencement of the provision of the Work or the Goods by Supplier. End of Standard Terms and Conditions