Standard Purchase Terms for Purchase Orders
Each Purchase Order placed by Buyer for Goods and/or Services is subject to these standard purchase terms and
the terms of the applicable Purchase Order, and is conditional upon Supplier’s agreement to such terms.
Supplier shall be deemed to have agreed to be bound by such terms by accepting the Purchase Order, delivering
the Goods, or performing the Services.
Definitions. In these Standard Purchase Terms, the following definitions apply:
Affiliate” means any corporation or other person or entity that directly, or indirectly
through one or more intermediaries, controls or is controlled by, or is under common control
with, the person specified.
Acceptance” shall have the meaning ascribed to it in Section a.
Agreement” means this agreement between Supplier and Buyer for the purchase and
sale of Goods and/or Services.
Buyer” means Swimways Corp. or any of its Affiliates listed on the Purchase Order.
Confidential Information” shall have the meaning ascribed to it in Section 12.
Deliverable” means any deliverable or other product or result from Services that
is referred to in a Purchase Order, and any related materials, data, documentation, and includes
any Intellectual Property Rights developed by Supplier pursuant to such Purchase Order.
Delivery Date” means the date of delivery for Goods and/or performance of Services
as specified in a Purchase Order.
Delivery Point” means the location identified by Buyer in the Purchase Order to
which the Supplier is to deliver Goods and/or perform the Services, or such other delivery area
or point which is specified in writing by Buyer.
Goods” means the goods that are required to be delivered by Supplier pursuant
to a Purchase Order, and include all materials, component parts, packaging and labelling of such
Intellectual Property Rights” means all intellectual and industrial property rights
and rights of a similar nature including all rights in and to, patents including all issued patents
and pending applications therefore and patents which may be issued therefrom (including divisions,
reissues, re-examinations, continuations and continuations-in-part); trademarks; copyrights;
industrial design rights; rights pertaining to trade secrets and confidential information; publicity
rights; personality rights; moral rights, and other intellectual property rights whether registered
or not and all applications, registrations, renewals and extensions pertaining to the foregoing.
Purchase Order” means the purchase order between Buyer and Supplier for the purchase
and sale of Goods and/or Services, to which these Standard Purchase Terms are attached or are
incorporated by reference.
Services” means any services to be provided by Supplier to Buyer pursuant to a
Specifications” means the requirements, attributes and specifications for the
Goods and/or Services that are set out in the applicable Purchase Order. Specifications also
include: (a) documentation published by Supplier relating to the Goods and/or Services; (b) operational
and technical features and functionality of the Goods and/or Services; (c) standards or levels
of service performance for Services; and (d) Buyer business requirements that are expressly set
out in a Purchase Order.
Supplier” means the party indicated on the face page of the Purchase Order that
is contracting with Buyer for the purchase and sale of Goods and/or Services.
Supplier Proposal” means any acknowledgement, estimate, quote, offer to sell,
invoice, or proposal of Supplier relating to the supply of Goods and/or Services to Buyer, including
any delivered in connection with a request for quotations, request for proposal or similar process
initiated by Buyer.
Warranty Period” means in respect of any Goods or Services, the longer of: (i)
the express written warranty period provided by Supplier for the Goods or Services; and (ii)
the period commencing on the date of Acceptance of such Goods and/or Services by Supplier and
ending on the date that is one (1) year from that date.
Agreement. The Agreement consists only of: (a) these Standard Purchase Terms; (b) the applicable
Purchase Order; and (c) any Specifications or other documents expressly referenced in the Purchase Order.
Any reference in the Purchase Order to any Supplier Proposal is solely for the purpose of incorporating
the descriptions and specifications of the Goods and/or Services contained in the Supplier Proposal,
and only to the extent that the terms of the Supplier Proposal do not conflict with the descriptions
and Specifications set out in the Purchase Order. Buyer’s Acceptance of, or payment for, Goods
and/or Services will not constitute Buyer’s acceptance of any additional or different terms in
any Supplier Proposal or other document, unless otherwise accepted in writing by Buyer. If there is any
conflict or inconsistency between the documents constituting the Agreement, then unless otherwise expressly
provided, the documents will rank in the order of precedence in accordance with the order in which they
are listed in this Section 2.
Delivery of Goods and Services.
- Supplier agrees to supply and deliver the Goods to Buyer and/or to perform the Services, as applicable,
on the terms set out in this Agreement.
- Supplier shall, at its own expense, pack, load, and deliver Goods to the Delivery Point and in accordance
with the invoicing, delivery terms, shipping, packing, and other instructions printed on the
face of the Purchase Order or otherwise provided to Supplier by Buyer in writing. No charges
will be allowed for freight, transportation, insurance, shipping, storage, handling, demurrage,
cartage, packaging or similar charges unless provided for in the applicable Purchase Order or
otherwise agreed to in writing by Buyer.
- A packing list shall accompany each shipment of Goods by Supplier, showing Buyer’s Purchase
Order number, item number and description, and such other information as may be requested from
time to time by Buyer. Buyer’s count and weight shall be final and conclusive on shipments
of Goods and accompanied by packing lists.
- The Goods shall be suitably packed to prevent damage in transit, to assure lowest transportation
costs, consistent with timely delivery, and to meet common carrier requirements. Time is of the
essence with respect to delivery of the Goods and performance of Services. Goods shall be delivered
and Services performed by the applicable Delivery Date. Supplier must immediately notify Buyer
if Supplier is likely to be unable to meet a Delivery Date. At any time prior to the Delivery
Date, Buyer may, upon notice to Supplier, cancel or change a Purchase Order, or any portion thereof,
for any reason, including, without limitation, for the convenience of Buyer or due to failure
of Supplier to comply with this Agreement, unless otherwise noted.
- Title and risk of loss or damage shall pass to Buyer upon receipt of Goods at the Delivery Point,
unless otherwise agreed to by the Buyer in writing. Buyer has no obligation to obtain insurance
while Goods are in transit from Supplier to the Delivery Point.
- Supplier shall follow all instructions of Buyer and cooperate with Buyer’s customs broker as
directed by Buyer (including by providing requested shipping documentation) with respect to all
Goods that originate from sources or suppliers based outside Canada. Supplier shall comply with
all the requirements of the Canada Border Services Agency (or any successor organization) with
respect to the importation of Goods from outside Canada.
Inspection; Acceptance and Rejection.
- All shipments of Goods and performance of Services shall be subject to Buyer’s right of inspection.
Buyer shall have
ninety (90) days(the “
Inspection Period“) following the delivery of the Goods at the Delivery Point
or performance of the Services to undertake such inspection, and upon such inspection Buyer shall
either accept the Goods or Services (“
Acceptance“) or reject them. Buyer shall have the right, at Buyer’s option
and Supplier’s expense, to cancel any Purchase Order and/or reject any Goods that are:
(i) delivered in excess of the quantity ordered, (ii) damaged or defective, (iii) substituted
or otherwise do not conform to sample or the Specifications; or (iv) not shipped by the Delivery
Date. In addition, Buyer shall have the right to reject any Goods or Services that are not in
conformance with the Specifications or any term of this Agreement. Transfer of title to Buyer
of Goods shall not constitute Buyer’s Acceptance of those Goods. Buyer shall provide Supplier
within the Inspection Period notice of any Goods or Services that are rejected, together with
the reasons for such rejection. If Buyer does not provide Supplier with any notice of rejection
within the Inspection Period, then Buyer will be deemed to have provided Acceptance of such Goods
or Services. Buyer’s inspection, testing, or Acceptance or use of the Goods or Services
hereunder shall not limit or otherwise affect Supplier’s warranty obligations hereunder
with respect to the Goods or Services, and such warranties shall survive inspection, test, Acceptance
and use of the Goods or Services.
- Buyer shall be entitled to return rejected Goods to Supplier at Supplier’s expense and risk
of loss for, at Buyer’s option, either: (i) full credit or refund of all amounts paid by
Buyer to Supplier for the rejected Goods; or (ii) replacement Goods to be received within the
time period specified by Buyer. Title to rejected Goods that are returned to Supplier shall transfer
to Supplier upon such delivery and such Goods shall not be replaced by Supplier except upon written
instructions from Buyer. Supplier shall not deliver Goods that were previously rejected on grounds
of non-compliance with this Agreement, unless delivery of such Goods is approved in advance by
Buyer, and is accompanied by a written disclosure of Buyer’s prior rejection(s).
Price/Payment Terms. Prices for the Goods and/or Services will be set out in the applicable
Order. Price increases or charges not expressly set out in the Purchase Order shall not be effective
unless agreed to in advance in writing by Buyer. Supplier will issue all invoices on a timely basis.
All invoices delivered by Supplier must meet Buyer’s requirements, and at a minimum shall reference
the applicable Purchase Order. Buyer will pay the undisputed portion of properly rendered invoices sixty
(60) days from the invoice date. Buyer shall have the right to withhold payment of any invoiced amounts
that are disputed in good faith until the parties reach an agreement with respect to such disputed amounts
and such withholding of disputed amounts shall not be deemed a breach of this Agreement nor shall any
interest be charged on such amounts. Notwithstanding the foregoing, Buyer agrees to pay the balance of
the undisputed amounts on any invoice that is the subject of any dispute within the time periods specified
Taxes. Unless otherwise stated in a Purchase Order, all prices or other payments stated in the
Purchase Order are exclusive of any taxes. Supplier shall separately itemize all applicable taxes on
each invoice and indicate on each invoice its applicable tax registration number(s). Buyer will pay all
applicable taxes to Supplier when the applicable invoice is due. Supplier will remit all applicable taxes
to the applicable government authority as required by applicable laws. Notwithstanding any other provision
of this Agreement, Buyer may withhold from all amounts payable to Supplier all applicable withholding
taxes and to remit those taxes to the applicable governmental authorities as required by applicable laws.
Hazardous Materials. Supplier agrees to provide, upon and as requested by Buyer, to satisfy
any applicable laws governing the use of any hazardous substances either of the following: (a) all reasonably
necessary documentation to verify the material composition, on a substance by substance basis, including
quantity used of each substance, of any Goods, and/or of any process used to make, assemble, use, maintain
or repair any Goods; or (b) all reasonably necessary documentation to verify that any Goods and/or any
process used to make, assemble, use, maintain or repair any Goods, do not contain, and the Services do
not require the use of, any particular hazardous substances specified by Buyer.
Legal Compliance; Workplace Safety. In carrying out its obligations under the Agreement, including
the performance of Services, Supplier shall at all times comply with all applicable federal, provincial,
and municipal laws, regulations, standards, and codes. Supplier shall be at all times registered with
the workplace safety and insurance board under the relevant local legislation and shall maintain
its workers’ compensation accounts in good standing, and provide Buyer with evidence of good standing
upon request. Supplier shall obtain all applicable permits, licences, exemptions, consents and approvals
required for the Supplier to manufacture and deliver the Goods and perform the Services.
Product Warranties. Supplier warrants to Buyer that during the Warranty Period all Goods
provided hereunder shall be: (i) of merchantable quality; (ii) fit, safe and sufficient for the
purposes intended; (iii) unless otherwise agreed to by Buyer, new; (iv) free from defects in
design, material and workmanship; (v) in strict compliance with the Specifications; (vi) free
and clear from any liens or encumbrances on title whatsoever, and at the time of delivery to
Buyer, Supplier shall have all rights necessary to transfer title to such Goods to Buyer; (vii)
in conformance with any samples provided to Buyer; and (viii) compliant with all applicable federal,
provincial, and municipal laws, regulations, standards, and codes.
Service Warranties. Supplier shall perform all Services: (i) exercising that degree
of professionalism, skill, diligence, care, prudence, judgment, and integrity which would reasonably
be expected from a skilled and experienced service provided providing services under the same
or similar circumstances as the Services under this Agreement; (ii) in accordance with all Specifications
and all Buyer policies, guidelines, by-laws and codes of conduct applicable to Supplier; and
(iii) using only personnel with the skills, training, expertise, and qualifications necessary
to carry out the Services. Buyer may object to any of the Supplier’s personnel engaged
in the performance of Services who, in the reasonable opinion of Buyer, are lacking in appropriate
skills or qualifications, engage in misconduct, constitute a safety risk or hazard or are incompetent
or negligent, and the Supplier shall promptly remove such personnel from the performance of any
Services upon receipt of such notice, and shall not re-employ the removed person in connection
with the Services without the prior written consent of Buyer.
Intellectual Property Warranty. Supplier further warrants to Buyer that at all times
all Goods and or Services (including any Deliverables) will not be in violation of or infringe
any Intellectual Property Rights of any person.
Manufacturer Warranties. Supplier shall assign to Buyer all manufacturer’s warranties
for Goods not manufactured by or for Supplier, and shall take all necessary steps as required
by such third party manufacturers to effect assignment of such warranties to Buyer.
- In the event of breach of any of the warranties in Section a or 9.b, and without prejudice to any
other right or remedy available to Buyer (including Buyer’s indemnification rights hereunder),
Supplier will, at Buyer’s option and Supplier’s expense, refund the purchase price
for, or correct or replace the affected Goods, or re-perform the affected Services, within 10
calendar days after notice by Buyer to Supplier of warranty breach. All associated costs, including
costs of re-performance, costs to inspect the Goods and/or Services, transport the Goods from
Buyer to Supplier, and return shipment to Buyer, and costs resulting from supply chain interruptions,
will be borne by Supplier. If Goods are corrected or replaced or Services are re-performed, the
warranties in Section 9.a will continue as to the corrected or replaced Goods for a further Warranty
Period commencing on the date of Acceptance of the corrected or replaced Goods by Buyer. If Supplier
fails to repair or replace the Product within the time period required above, Buyer may repair
or replace the Goods at Supplier’s expense.
- In the event that any Goods provided by Supplier to Buyer are subject to a claim or allegation of
infringement of Intellectual Property Rights of a third party, Supplier shall, at its own option
and expense, without prejudice to any other right or remedy of Buyer (including Buyer’s
indemnification rights hereunder): (i) promptly provide Buyer with a commercially reasonable
alternative, including the procurement for Buyer of the right to continue using the Goods in
question, (ii) replace such Goods with a non-infringing alternative satisfactory to Buyer, or
(iii) modify such Goods (without affecting functionality) to render them non-infringing.
Intellectual Property Rights. All Intellectual Property Rights in and to each Deliverable shall
vest in Buyer free and clear of all liens and encumbrances on receipt of payment by Supplier for each
Deliverable. To the extent that any Deliverables contain any intellectual property of Supplier, Supplier
hereby grants to Buyer a worldwide, royalty-free, non-exclusive, perpetual license to use, copy, modify
and distribute such intellectual property as part of the Deliverables. Supplier agrees to provide to
Buyer all assistance reasonably requested by Buyer to perfect the rights described herein, including
obtaining all assignments and waivers of moral rights necessary or appropriate to vest the entire right,
title and interest in such materials in Buyer and its successors and assigns.
Confidentiality. Unless excluded in writing by a party, the parties shall assume that any and
all information disclosed, that is of a nature that a reasonable person would understand is confidential,
is Confidential Information, whether in oral form, machine-readable form, written, digital, electronic
or other tangible form, and whether designated as confidential or unmarked. Without limiting the foregoing,
Confidential Information” includes patents, patent applications, inventions, discoveries,
trade secrets, techniques, models, data, programs, processes, designs, know-how, agreements with third
parties, current and potential client and customer lists and information, marketing plans, financial
information, products, business plans, sales positioning strategies, sales reports and communication
strategies. Except as expressly permitted by this Agreement, the parties shall not disclose the Confidential
Information to any third party without the other party’s consent. The recipient will maintain the
confidentiality of such Confidential Information by using reasonable care and at least the same degree
of care that it takes to hold in confidence its own proprietary information of a similar nature. The
recipient hereby agrees that any Confidential Information received by such party will be used solely
for the purposes of carrying out its obligations under this Agreement, and that such information will
be kept confidential; provided, however, that any of such information may be disclosed by a recipient
to its directors, officers, employees, shareholders, partners, agents or advisors, including, without
limitation, attorneys and consultants (collectively, the “Representatives”) who need to know
such information and who are bound by confidentiality obligations no less stringent than those of this
Agreement. Each recipient agrees to be responsible for any breaches of any of the provisions of this
Agreement by any of its Representatives. All Confidential Information shall remain the sole property
of the disclosing party. Upon the conclusion of the business relationship between the parties, or upon
written request of the disclosing party, each recipient shall promptly return to the disclosing party
or destroy all items and material in recipient’s possession or control which contain any Confidential
Information, including any copies of such items or material.
Insurance. Supplier represents and warrants to Buyer that it has in place with reputable insurers
such insurance policies in coverage amounts that would be maintained by a prudent supplier of goods and
services similar to the Goods and Services provided hereunder, including, as applicable, professional
errors and omissions liability insurance and comprehensive commercial general liability insurance (including
product liability coverage, all-risk contractors’ equipment insurance, and automobile liability
insurance). In addition, Supplier will take out and maintain, at its own cost, such insurance policies
and coverages as may be reasonably required by Buyer from time to time. Supplier will promptly deliver
to Buyer, as and when requested, written proof of such insurance. If requested, Buyer will be named as
an additional insured under any such policies. If requested by Buyer, such insurance will provide that
it cannot be cancelled, or materially changed so as to affect the coverage provided under this Agreement,
without the insurer providing at least 30 days prior written notice to Buyer.
Indemnities. Supplier shall indemnify, defend and hold harmless Buyer, its Affiliates, and their
respective officers, directors, employees, consultants, and agents (the “
Buyer Indemnified Parties“) from and against any claims, fines, losses, actions, damages,
expenses, legal fees and all other liabilities brought against or incurred by the Buyer Indemnified Parties
or any of them arising out of: (a) death, bodily injury, or loss or damage to real or tangible personal
property resulting from the use of or any actual or alleged defect in the Goods or Services, or from
the failure of the Goods or Services to comply with the warranties or Specifications hereunder; (b) any
claim that the Goods or Services infringe or violate the Intellectual Property Rights or other rights
of any person; (c) any intentional, wrongful or negligent act or omission of Supplier or any of its Affiliates
or subcontractors; (d) Supplier’s breach of any of its obligations under this Agreement; or (e)
any liens or encumbrances relating to any Goods or Services.
Limitation of Liability. EXCEPT FOR SUPPLIER’S OBLIGATIONS UNDER SECTION 14, AND EXCEPT
FOR DAMAGES THAT ARE THE RESULT OF THE GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF A PARTY, IN NO EVENT
WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL,
OR PUNITIVE DAMAGES, INCLUDING ANY LOST PROFITS, DATA, GOODWILL, OR BUSINESS OPPORTUNITY FOR ANY MATTER
RELATING TO THIS AGREEMENT.
Independent Contractors. Supplier will perform its obligations under the Agreement as an independent
contractor and in no way will Supplier or its employees be considered employees, agents, partners, fiduciaries,
or joint venturers of Buyer. Supplier and its employees will have no authority to represent Buyer or
its Affiliates or bind Buyer or its Affiliates in any way, and neither Supplier nor its employees will
hold themselves out as having authority to act for Buyer or its Affiliates.
Further Assurances. The parties shall sign such further and other documents, cause such meetings
to be held, resolutions passed and do and perform and cause to be done and performed such further and
other acts and things as may be necessary or desirable in order to give full effect to this Agreement
and every part thereof.
Severability. If any provision of this Agreement is determined, by a court of competent jurisdiction,
to be unenforceable or invalid for any reason whatsoever, in whole or in part, such invalidity or unenforceability
shall attach only to such provision or part thereof and the remaining part thereof and all other provisions
shall continue in full force and effect.
Waiver. No waiver or any modification of any provision of this Agreement shall be enforceable
against that party unless it is in writing and signed by that party.
Assignment. Supplier may not assign or subcontract this Agreement, in whole or in part, without
Buyer’s prior written consent. Supplier’s permitted assignment or subcontracting of this
Agreement or any part thereof will not release Supplier of its obligations under this Agreement, and
it will remain jointly and severally liable with the assignee or subcontractor for any obligations assigned
or subcontracted. The acts or omissions of any subcontractors of Supplier will be deemed to be the acts
and omissions of the Supplier. Buyer may assign this Agreement, in whole or in part, to any Affiliate
of Buyer, without the consent of Supplier. This Agreement shall enure to the benefit of and be binding
upon the parties and their respective successors and permitted assigns.
Cumulative Remedies. The rights and remedies of each party in this Agreement are cumulative
and in addition to any other rights and remedies at law or in equity.
Survival. Any provision of this Agreement which expressly or by implication from its nature
is intended to survive the termination or completion of the Agreement will continue in full force and
effect after any termination, expiry or completion of this Agreement.
Interpretation. The headings used in this Agreement and its division into articles, sections,
schedules, exhibits, appendices, and other subdivisions do not affect its interpretation. Unless the
context requires otherwise, words importing the singular number include the plural and vice versa; words
importing gender include all genders. References in this Agreement to articles, sections, schedules,
exhibits, appendices, and other subdivisions are to those parts of this Agreement. Where this Agreement
uses the word “including,” it means “including without limitation,” and where
it uses the word “includes,” it means “includes without limitation.
Governing Law. This Agreement shall be governed by the laws of the State of Virginia. The parties
consent to the exclusive jurisdiction of the state and federal courts of the State of Virginia in connection
with any lawsuit, action or proceeding arising out of or relating to this Agreement, with venue in Norfolk,