UNIQUE INDUSTRIES, INC., DOING BUSINESS IN CANADA AS
UNIQUE PARTY FAVORS
TERMS AND CONDITIONS OF PURCHASE
EFFECTIVE DATE: AUGUST 11, 2020
- PURCHASE OF GOODS & SERVICES. These Terms and Conditions of Purchase (the “Terms”) shall be read in conjunction with and are incorporated by reference into each and every Purchase Order (each specific Purchase Order being referred to as the “Order”, and collectively the “Orders”) placed by Unique Industries, Inc. (“Unique”) on or after the Effective Date set forth at the top of these Terms. The Terms shall also be read into the terms and conditions of any Seller Forms (defined below) issued by Seller and agreed to by Unique. The Terms and the Order shall govern all products, materials, equipment, machinery, and other goods (collectively the “Goods”) and all work and services (collectively the “Services”) that are the subject of the Order which are sold and/or provided to Unique by the supplier, manufacturer, distributor, service provider, vendor, and/or other authorized and approved agent thereof that is a recipient of the Order (each individually referred to hereinafter as “Seller”).
- TERMS OF PURCHASE. The Order is an offer or counteroffer to purchase Goods and/or Services under the exact terms and conditions set forth in the Terms and in the Order only. The Order expressly limits acceptance to the terms and conditions set forth in the Terms and in the Order, and is expressly conditioned on Seller’s assent to all terms and conditions set forth in the Terms and in the Order that are additional to or different from those stated in Seller’s quotation, terms and conditions, invoice, confirmation, acknowledgement or other similar offering or acceptance documents (including but not limited to proposals, quotations, contracts or other documents (“Seller Forms”). Unique hereby rejects any and all additional or inconsistent terms and conditions offered by Seller at any time, irrespective of whether: (A) such terms or conditions seek to materially alter this Order; (B) Unique accepts or pays for the Goods and/or Services; or (C) such additional or inconsistent terms or conditions are shrink-wrapped with the Goods and/or preprinted on any Seller Forms which are delivered to Unique. This Order expressly incorporates all warranties under the Sale of Goods Act, R.S.O. 1990, c. S.1 et seq. (the “R.S.O.”) including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, quiet possession, and freedom of incumbrances, as well as all of Unique’s remedies under law including, without limitation, all incidental and consequential damages.
- PLACEMENT OF ORDER. An Order shall not be effective until: (a) for verbal orders, it is confirmed in writing via an Order issued by an authorized employee of Unique; (b) for electronic data interchange (“EDI”), Seller transmits a functional acknowledgement within three (3) days of receipt of an Order; (c) for EDI, Unique transmits a functional acknowledgement and fails to object within three (3) days to a Seller-initiated-EDI order under a Seller-managed inventory system; or (d) for orders by document (paper, Word, PDF or otherwise), upon successful delivery by mail, courier, e-mail attachment, or transmission by facsimile (and if by facsimile, as evidenced by a “machine accepted” or other electronic verification of receipt generated by the sending party’s fax machine) of the Order. Goods and/or Services “put in work,” provided, or shipped prior to fulfillment of the above conditions in this paragraph are completely and fully at Seller’s risk.
- SHIPMENT TIMING, DELIVERY, TITLE, AND RISK OF LOSS. TIME SHALL BE OF THE ESSENCE CONCERNING ALL SHIPPING, DELIVERY, REQUIRED DATES, AND COMPLETION DATES SET FORTH IN THE ORDER. Unless otherwise specified on the Order, the “Required Date,” “Completion Date,” or other reference to indicate the delivery date or completion date shall mean the date that the Goods must be delivered to the applicable Unique facility and/or the Services must be completed. Partial shipments shall not be made unless and until prior written approval is granted by Unique. Unless otherwise expressly set forth in the Order, title for Goods shall not transfer to Unique until delivery to the “Ship To” address set forth in the Order, and until Unique has received, conducted an incoming inspection of, and accepted the Goods at Unique’s receiving facility. Costs and risk of loss shall be apportioned as follows: (a) for domestic shipments, in accordance with the Incoterms 2010 F.O.B. Named Place of Destination (with the Named Place of Destination being the applicable Unique facility to which the Goods are delivered); (b) for international shipments, in accordance with the Incoterms 2010 Delivered Duty Paid (DDP), Named Place of Destination, Unloaded (with the Named Place of Destination being the applicable Unique facility to which the Goods are to be delivered). Seller shall be responsible for determining export control classification, licensing requirements, and obtaining any required licenses under Canadian laws, regulations or orders that regulate or control exports. Additionally, any credits or benefits resulting or arising from the transaction covered by the Order, including but not limited to trade credits, export credits, or the refund of duties, taxes or fees, will belong to Unique.
- WARRANTIES. The warranties contained in these Terms and reserved for the Order for the Goods and Services shall be cumulative and in addition to any other warranties provided by law, including but not limited to those provided in the R.S.O. All warranties shall survive Unique’s inspection, acceptance, and payment, and shall run to Unique and its successors, assigns, recipients, customers and users of the Goods and Services. Seller agrees that Seller expressly warrants the following with respect to the Goods and Services: (i) the Goods and Services shall conform strictly to specifications, samples and other descriptions upon which the Order is based, (ii) the Goods and Services shall be new and of good quality, (iii) the Goods shall be packed, inspected and shipped in accordance with Canadian Customs security requirements, (iv) the Goods and Services shall be of good workmanship and free from any defects, contamination, impurity or adulteration, (v) the Goods and Services will be merchantable, safe, fit and sufficient for the purpose intended, (vi) the handling, consumption or other use of the Goods and Services will not cause harm to any person or damage to any property, (vii) the Goods and Services shall be free from all liens and encumbrances, shall confirm to the conditions and provisions of applicable federal, provincial, and local laws, (viii) the Goods and Services shall not violate or infringe upon any patent, copyright, trademark, trade name, or, without limitation, any other rights belonging to others, (ix) in the case of software or conde making up any part of the Goods or Services, be free from viruses, disabling code, and open source software; (x) the Services shall be performed in a good and workmanlike manner, (xi) the Services shall be performed with a level of care exercised by leading professionals in Seller’s industry, and (xii) the Services meet or exceed all standards, guidelines, rules and regulations governing Seller’s industry. The warranty term set forth in this paragraph of the Terms shall be the longer of (a) the time period set forth in the Seller’s documents, or (b) seven (7) years. The warranty shall run from the date of Unique’s formal acceptance; but if no formal acceptance, on the date that Unique makes the final payment due under the Order.
- INSPECTION AND REJECTION. All Goods and Services are subject to inspection and to rejection by Unique, and are specifically subject to the warranties set forth in these Terms. Receipt of Goods and performance of Services shall not be deemed acceptance. Unique specifically reserves all rights and remedies available to Unique under the R.S.O., including but not limited the right to: (1) have rejected Goods replaced by the Seller at no additional cost to Unique, or (2) return the rejected Goods for full refund at the price charged plus all associated transportation, warehousing, and other related charges. Unique reserves the right to accept a part of any shipment, reject the balance, and consider the contract breached to the extent of the rejected Goods. If Unique takes delivery of any non-conforming Goods, Unique may exercise all remedies available to Unique under the R.S.O.. Unique’s rights with respect to the rejection of Goods or Services are not waived by failure of Unique to notify the Seller promptly upon receipt of delivery or performance. Under no circumstances shall Unique have the obligation to accept or pay for any unordered, excess, or substitute goods or services that do not otherwise conform to, or comply with, all terms and conditions of the Order, including dates of shipment, delivery, and/or performance.
- CANCELLATION. Unique reserves the right to cancel any purchase order, including the Order, without penalty, by notice to Seller on or before the cancellation date specified in the Order. If no cancellation date is specified, the cancellation date shall be any time prior to the ship date (for the Goods) or the performance date (for the Services). Seller shall provide immediate notice to Unique of any possible or actual delay in delivery at variance with that specified on the face of the Order. Unique’s right of cancellation includes, without limitation, the right to cancel future installments in the event of failure or delay in delivery, or non-conformity, of any installment if deemed by Unique to substantially impair the value of the Order.
- PRICING AND PAYMENT TERMS; INTEREST. If price is not stated on the Order, the Goods shall be billed at the price last quoted or paid, or the prevailing market price, whichever is lower. Unless otherwise set forth in the Order, terms of payment are two percent thirty, net sixty days (2% 30, Net 60). Unless otherwise agreed to in writing by Unique, payment terms commence upon receipt and acceptance of the Goods or Services, or receipt of invoice, whichever is later. Unique shall have no obligation to make payment hereunder prior to: (a) receipt of all Goods and performance of all Services ordered, (b) receipt of invoice at Unique’s branch office located in Canada; and (c) if applicable, until a passing performance test or passing inspection occurs. Unique shall not be charged interest on any late payments, and shall not be required to pay any attorneys’ fees or other costs of collection incurred by Seller. Unique shall have the right of set-off and deduction; Unique shall be entitled to set off any amounts owing at any time to Unique by Seller against any amount payable by Unique to Seller. Unless otherwise stated, pricing is in Canadian Dollars.
- TAXES & OTHER CHARGES. Seller shall be responsible for and pay all federal, provincial, local and foreign sales, use, excise, value added and other taxes arising from or relating to the sale of Goods or performance of Services. Any sales or excise tax applicable to the Goods covered by the Order but not in effect upon the date hereof shall not be chargeable to Unique directly or indirectly, but if required to be paid by Unique, the Seller will reimburse Unique for such taxes. In addition, Seller shall be required to pay any charges for shipment, handling, storage, and insurance not specifically set forth in the Order.
- COMPLIANCE WITH LAWS. Seller shall comply with all applicable federal, provincial, local, and foreign laws, rules, regulations, orders and decrees of any governmental authority having jurisdiction pertaining to the Order, the Goods, and or the Services provided thereunder, including but not limited to those related to safety and compliance. Seller shall retain records and documents related to the transaction covered by the Order for at least seven (7) years. Supplier shall provide such records and documentation to Unique upon Unique’s request.
- CONFIDENTIALITY. In addition to any other confidentiality terms and conditions set forth in a confidentiality and/or non-disclosure agreement between the parties, which terms and conditions are incorporated into the Order by reference, Seller shall keep confidential, and not divulge to any third party, any and all business secrets or other confidential or proprietary information of Unique (or of one or more third parties that is in Unique’s possession), whether such information is presented or made available to Seller in written, oral, visual, electronic, or other form (hereinafter the “Confidential Information”). Confidential Information shall specifically include, but not limited to, information about or relating to Unique’s customers, employees, consultants, financials, sales information, accounts, products, product pricing and other costs, marketing plans, suppliers, vendors, manufacturers, raw materials, warehouse strategies, warehouse layout and procedures, existing machines and machine layout, intellectual property (including but not limited to information protected by copyright, trademark, or patent), software, programs, code, third party software, work, know-how, trade secrets and organizational methods. Any materials provided to Seller during Seller’s relationship with Unique (including but not limited to maps, drawings, schematics, plans, photographs, diagrams, lists, invoices, purchase orders, samples and promotional materials, whether in written, electronic, or other form), or created by Seller from Confidential Information obtained during the course of Seller’s relationship with Unique, belong to Unique, and all originals and copies shall be delivered to Unique or destroyed, within ten (10) days after performance. Seller shall report disclosures of Confidential Information in writing to Unique within ten (10) days of such disclosure. Unique’s furnishing of any materials to Seller, including materials with Confidential Information, shall not be construed as granting Seller any ownership interest therein. The obligations in this paragraph survive delivery and performance.
- NO ASSIGNMENT. Seller shall not be permitted to assign or sub-contract the obligations set forth in the Order without the express, prior written consent of Unique, said consent to set forth in a document signed by an officer or director of Unique. Otherwise, these Terms shall be binding on and inure to the benefit of the respective successors and permitted assigns of the parties.
- CHOICE OF LAW; JURISDICTION; VENUE. The Order, these Terms, any instrument related thereto, the Goods, the Services, and any claims directly or indirectly arising out of, under, or in connection with the Goods, the Services, the Order, the Terms, or any related instrument, shall be governed by, construed, and interpreted under the laws of the Province of Ontario, Canada, including but not limited to its statutes of limitations and the R.S.O., without regard to any conflicts of laws principles. The Order, these Terms, and any related instrument shall not be governed by, construed, or interpreted under the U.N. Convention of Contracts for the International Sale of Goods, which is specifically excluded. The rights and remedies set forth in the Order and the Terms are in addition to other rights and remedies available to Unique at law or in equity. The parties agree that any action arising from or in any way related to the Goods, the Services, the Order, the Terms, or any related instrument, shall be exclusively adjudicated in the courts located within the Province of Ontario, Canada (the “Courts”). The parties agree that these Courts shall have the exclusive jurisdiction over any such action, and each party hereby irrevocably waives any claim that such Courts lack jurisdiction over it, and agrees not to plead or claim, in any legal action or proceeding, that any such Courts lack jurisdiction over it, that the venue is improper, or that such Courts are located in an inconvenient forum (forum non conveniens).
- REMEDIES. If Seller breaches any of the warranties, covenants, or other terms or conditions of the Order or the Terms, then Unique shall have available to it all remedies set forth in the Terms, as well as those available to Unique at law and in equity. Seller will reimburse Unique for any damages caused by Seller’s breach or by nonconforming Goods or Services, including, without limitation: (a) costs incurred for replacement materials or replacement parts; (b) freight costs incurred to deliver replacement parts or replacement materials; (c) expenses incurred to diagnose and repair the Goods, or fix or remediate the Services, including but not limited to labor, travel/per diem, diagnostic time, and locally purchased goods and services; (d) costs of recalls; (e) costs of inspecting, storing, reworking, repairing or replacing the Goods or Services; costs from production interruptions; (f) costs of personal injury (including, without limitation, death) or property damage; (g) actual professional fees, settlements, and judgments incurred by Unique, and other costs associated with Unique’s administrative time, labor and materials. The listed remedies in this paragraph of the Terms are not to be read to limit Unique’s remedies available to Unique at law or in equity. Seller acknowledges and agrees that Unique would not have an adequate remedy at law and would be irreparably harmed if any of the provisions of the Terms or the Order were not performed in accordance with their specific terms or were otherwise breached. Accordingly, Seller agrees that the Unique shall be entitled to equitable relief, including injunction and specific performance, if Seller breaches or threatens to breach any of the provisions of the Terms or the Order without the necessity of providing a bond or other surety, or proving special damages or irreparable injury. Such remedies shall not be deemed to be the exclusive remedies for a breach or threatened breach of the Terms or the Order, but shall be in addition to all other remedies available at law or equity. All remedies shall be cumulative and not exclusive, and the limitations of such remedies shall be governed by the applicable governing law.
- INSURANCE. Seller further warrants that Seller has in effect as of the date the Goods subject to the Order are shipped to Unique and/or the Services are provided to Unique, and will continue in full force and effect for three (3) years thereafter at Seller’s own cost and expense, Commercial General Liability Insurance [including blanket contractual liability in an amount not less than Two Million Dollars ($2,000,000) per occurrence and Two Million Dollars ($2,000,000) in the aggregate, Two Million Dollars ($2,000,000) products & completed operations, and One Million Dollars ($1,000,000) personal and advertising injury limit], business or commercial automobile liability insurance in an amount not less than One Million Dollars ($1,000,000) combined single limit per accident, Five Million Dollars ($5,000,000) Excess Liability or Umbrella Liability Insurance, and Workers’ Compensation and Employers’ Liability Insurance (WSIB) in accordance with provincial, territory and federal laws with no exclusion for owners, proprietors, partners, executives, officers, directors, or members (whether or not required by provincial law) if any may come on site. Where applicable, each such policy shall be an occurrence policy and not a claims-made policy. “Unique Industries, Inc., its affiliates and related entities, its landlords, and all of their respective officers, directors, employees and agents” shall be named as additional insureds on a primary and non-contributory basis, and on an endorsement acceptable to Unique. The additional insured endorsement shall extend coverage to the contractual liability, products & completed operations, personal and advertising injury, commercial automobile, excess/umbrella coverage, and (if applicable) workers compensation/employers liability coverage. A copy of the endorsement must be delivered to Unique c/o General Counsel, 4750 League Island Boulevard, Philadelphia, Pennsylvania 19112-1222 upon the date of the Order and within ten (10) days of any future request. Insurance policies shall afford primary coverage and contain a provision that coverages afforded shall not be modified or canceled until at least thirty (30) days’ prior written notice has been given to Unique. All insurance policies shall be underwritten by an insurance carrier with an A.M. Best rating of “A-” or better. Failure to provide such proof of insurance shall result in payments being withheld by Unique until such time as proof is received.
- INDEMNITY. Seller hereby assumes the entire responsibility and liability for all tools, equipment, work, supervision, labor and materials provided under or pursuant to the Agreement by Seller. To the fullest extent permitted by law, Seller agrees to protect, defend, indemnify and hold harmless Unique, its subsidiaries and affiliates, its related entities, its landlords, and all of their officers, directors, shareholders, partners, employees, agents, servants, and all of their successors and assigns, from and against any and all claims, actions, demands, liabilities, losses, costs and expenses, including but not limited to reasonable attorneys’ fees, expert witness fees, and other costs of defense: (a) arising out of any actual or alleged injury to or death of any person, or damage to any property, or any other damage or loss, by whomsoever suffered (including the Seller’s employees and Unique’s employees), resulting or clamed to result directly or indirectly from the purchase, shipment, storage, delivery, sale, use, or other handling of the Goods sold and/or Services provided hereunder, without regard to whether such loss, damage, injury or liability is contributed to or caused by the negligence of Unique or its agents or employees, or (b) resulting from the actual or alleged breach of any of Seller’s warranties, covenants, or other obligations contained in the Terms or the Order, or (c) Seller’s handling, use, processing, alteration, distribution, sale or marketing of the Goods, or (d) resulting from any actual or alleged intellectual property infringement case, including but not limited to trademark, patent, copyright, or trade secret misappropriation related to the Goods sold or Services provided hereunder, or (e) resulting from viruses, disabling code, or open source software. Such indemnity obligation shall not be in derogation or limitation of any other obligation or liability of Seller. This indemnification shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for Seller under any workers’ compensation/employers’ liability acts, disability benefits acts or other employee benefits acts and includes any loss or injury suffered by an employee of Seller. This indemnification shall survive the delivery of the Goods and the completion of the Services. Seller’s assumption of liability is independent from, and not limited in any manner by, Seller’s insurance coverage obtained pursuant to the paragraphs set forth in this Terms, or otherwise. The terms and conditions set forth in this INDEMNITY paragraph are intended to be read to grant Unique the broadest and most comprehensive indemnity protection permissible under law. Seller shall keep Unique informed of all aspects of the litigation, and shall advise Unique of the terms of settlement before they are finalized. Unique shall not be obligated to indemnify, defend, or hold harmless Seller beyond that which is specifically required by applicable law.
- VENDOR COMPLIANCE DIRECTIVE. All of the sections of Unique’s Vendor Compliance Directive (the “Directive”) relating to Quality Assurance, Product Testing, UPC Bar Code Identification, Master and Inner Carton Markings, Identification & Packing Requirements, Vendor Packing Specifications, Charges for Violations, and C-TPAT Certification, are incorporated by reference as if set forth herein. If there is a conflict or inconsistency between the terms of the Directive and the Order/Terms, the Order/Terms shall control and govern.
- RISK ALLOCATION. Unique does not assume a risk of any event, foreseeable or unforeseeable, and beyond the reasonable control of either party, that has a material effect upon the agreed exchange as recorded in the contract that arises from the Order. Unique reserves the right to reject any shipment of any Order of Goods from Seller or provision of Services by Seller, and shall have no obligation to pay therefor in the event that such event occurs.
- INVOICING; STATUTE OF LIMITATIONS. Seller shall invoice Unique for the Goods and/or Services no later than six (6) months after the Goods have been received by Unique and/or the Services have been provided to Unique. If Seller fails to do so, Seller shall be deemed to have waived any right to receive Unique’s payment for the Goods. In addition, and notwithstanding anything to the contrary in the Order, these Terms, or otherwise, Seller shall be barred and prohibited from bringing a claim and/or legal action against Unique arising from or relating to the Order, the Terms, the Goods, and/or the Services unless such claim and/or legal action is commenced within one (1) year from the date of the Order.
- CAPTIONS; ‘ORDER’; ‘PARTIES’. Captions and headings of the paragraphs set forth in this Order are for convenience and reference only, and have no legal force or effect. Any reference to ‘Order’ alone, without additional modification or description, shall automatically include the Order AND these Terms. Any reference to ‘parties’ without additional modification or description shall refer to Unique and Seller, the parties to the contract memorialized by the Order.
- MERGER; MODIFICATION AND WAIVER; SEVERABILITY. The Order and the Seller Forms are the exclusive record of the parties’ agreement. The parties intend the terms and conditions of this record to constitute the final, complete, exclusive and completely integrated terms and conditions to which they intend to be bound with respect to the Order, and the parties do not intend to be bound by any other agreements, promises, conditions, or representations, written or oral, of whatsoever kind or nature including, without limitation, any trade usage or course of dealing, which the parties hereby intend to be negated. Any modification of the contract created by the Order, or any term or condition set forth herein, shall be unenforceable unless evidenced by a writing signed by the authorized representative of the party against whom such modification is asserted. The waiver or indulgence of any failure to meet the requirements of any term or condition of the contract created by the Order shall not operate as a waiver of any subsequent failure to meet the requirements of such term or condition or as a waiver of any other rights herein. In case any one or more of the provisions of these Terms or the Order shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions thereof, and they shall be construed and enforced as if such invalid, illegal or unenforceable provisions had never been contained herein, provided that such invalid, illegal or unenforceable provisions shall first be curtailed, reformed, limited or eliminated to the extent necessary to remove such invalidity, illegality or unenforceability with respect to the applicable law as it shall then be applied.
- SURVIVAL. The provisions of the Terms which by their nature and for any reason are intended to survive and extend beyond the termination or expiration shall remain in effect and be binding upon the parties beyond such time. Such terms shall include without limitation those that confer warranty rights and confidentiality obligations.
- OWNERSHIP OF WORK PRODUCT. All work product created by or on behalf of Seller which arises from or relates to the Order or the Terms, including but not limited to all photographs, engineering drawings, sketches, diagrams, calculations, and materials, whether or not subject to copyright (collectively the “Work Product”), whether in paper, electronic or other form, and whether created by Seller or a third party, is included in the price set forth in the Order, and shall be the sole and exclusive property of Unique. All right, title and interest in and to all Work Product shall automatically pass to Unique upon the completion thereof, and Seller shall transfer such work product to Unique within five (5) days of Unique’s demand therefore. If, for whatever reason, ownership is not capable of being passed to Unique, then Seller hereby assigned to Unique an exclusive, worldwide, unlimited, irrevocable, fully paid-up license to the Work Product. Additionally, for sake of clarity, any drawings or designs of any kind and in any form (including but not limited to electronic/CAD, paper, or otherwise) created by or on behalf of Seller related to the Order or the work or services covered by this Agreement shall be and become the exclusive property of Unique; and Seller shall obtain software licenses at Seller’s cost and expense for Unique to receive, save, print and file the Work Product.
- BONA FIDE OFFER; AUTHORITY. The Seller Forms produced by Seller constitute a bona fide offer from Seller. The individual issuing the Seller Forms from the Seller certify and affirm that they are authorized to act on behalf of and bind the Seller and to issue the Seller Forms.
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