Purchase Order Terms and Conditions for Canada

Unisys French Flag En français: Modalités du bon de commande pour le Canada

  1. Definitions. “Deliverables” means the goods, materials, products, software, technical data, intellectual property, drawings, personal property, personnel, services or items identified and/or listed in this purchase order for Buyer’s internal use and resale.
  2. Acceptance of Purchase Order. This purchase order constitutes Buyer’s offer to Seller and shall become a binding contract upon the terms and conditions stated in this purchase order upon acceptance by Seller by any expression of acceptance, or commencement of performance, whichever occurs first. Any terms and conditions proposed by Seller in acknowledging or accepting Buyer’s offer which are different from or in addition to the terms set forth in this purchase order shall not be binding upon Buyer and shall be void and of no effect, except to the extent expressly accepted in writing by Buyer’s authorized procurement representative(s).
  3. Data. Seller acknowledges that it has in its possession all applicable specifications, drawings and documents (including, without limitation, statements of work) necessary to perform its obligations under this purchase order at the price and schedule stated on this purchase order or its attachments. All such documentation shall be deemed to be a part of this purchase order.
  4. Packing and Shipping. Deliveries shall be made as specified on this purchase order without charge for packaging or storage unless otherwise agreed in writing by Buyer. Deliverables shall be suitably packed to secure the lowest transportation costs and in accordance with the requirements of the carriers of the releases or orders subject to this purchase order. Seller shall use the carrier (s) selected by Buyer if Buyer so requests. Buyer’s order numbers must be plainly marked on all packages, bills of lading and shipping orders. Buyer’s count or weight shall be conclusive. Seller shall not ship in advance of schedule or make partial shipment unless otherwise agreed in writing by Buyer. Delivery according to schedule is a major condition of this purchase order.
  5. Taxes and Duties. The prices stated in this purchase order include all applicable taxes and duties, except sales and use taxes, which may be passed on to Buyer. Such sales and use taxes shall be separately itemized in Seller’s invoice. This purchase order shall include all related customs duty and import drawback rights, if any, including rights developed by substitution and rights, which may be acquired from Seller’s suppliers, which Seller shall transfer to Buyer. Seller agrees to inform Buyer of the existence of all such rights, and to supply such documents as may be required to obtain such drawbacks, unless waived in writing by Buyer. Seller agrees to certify to Buyer the country of origin for Deliverables delivered under this purchase order.
  6. Payment and Prices. Unless different payment terms are expressly stated on this purchase order, payment terms shall be forty- five (45) days from Buyer’s receipt of Seller’s correctly presented invoice. A “correctly presented” invoice will contain this purchase order number sent to the billing address on this purchase order. Seller represents that prices quoted to or paid by Buyer shall not exceed current prices charged to any other customer of Seller for deliverables, which are the same, or substantially similar to, and in the same or substantially similar quantities as the Deliverables. Seller shall refund or Buyer may set off against subsequent invoices any amounts paid by Buyer in excess of such price(s).
  7. Set-off. Buyer shall be entitled at all times to set off any amount owing at any time from Seller to Buyer (or any of Buyer’s affiliates and subsidiaries) against any amount payable at any time by Buyer (or any of its affiliates and subsidiaries) to Seller.
  8. Warranty. Seller warrants that all Deliverables will conform to applicable specifications, drawings, descriptions, and samples, and will be of new manufacture, good workmanship and materials, and free from design defect, claim, encumbrance or lien, and be suitable for the purpose intended by Buyer. Seller warrants that it has full title, right, power and authority to enter into this purchase order and perform its obligations under the purchase order. Seller warrants that Deliverables that are services shall be performed in a professional and workmanlike manner. Seller warrants that electronic data processing hardware, software and firmware Deliverables are Year 2000 ready. If the Deliverables delivered under this purchase order do not meet the warranties specified in this purchase order or other applicable warranties, Buyer may, at its option, return at Seller’s expense, the defective or nonconforming Deliverables for credit, refund or set-off, or require Seller to correct or replace, at no cost to Buyer, any defective or nonconforming Deliverables, including, without limitation, re-perform any Deliverables that are services. Return shipping to Buyer of corrected or replacement Deliverables shall be at Seller’s expense. Deliverables required to be corrected or replaced (including, without limitation, the re-performance of any Deliverables that are services) shall be subject to this Section 8 and Section 9 (Inspection) in the same manner and to the same extent as Deliverables originally delivered under this purchase order. Seller’s warranties shall run to Buyer, its affiliates, subsidiaries, customers or users of the Deliverables and shall not be deemed to be exclusive of any other remedy at law or in equity available to Buyer, its affiliates, subsidiaries, customers or users of the Deliverables. Buyer’s inspection, approval, acceptance, use of, or payment for all or any part of the Deliverables shall in no way affect its warranty rights. Seller shall at its expense indemnify, defend and hold harmless, Buyer, its directors, officers, employees, affiliates, subsidiaries, agents, customers and end users, from any and all loss, damages or liability (including, without limitation, reasonable legal fees and costs) arising out of or resulting in any way from any defect in the Deliverables, or from any act or omission of Seller, its agents, employees or permitted subcontractors in connection with the Deliverables. This indemnification shall be in addition to Seller’s warranty obligations.
  9. Inspection. The Deliverables may be inspected and/or tested by Buyer at any time, place and stage of production or distribution, and if at Seller’s premises, Seller, without additional charge, shall provide all reasonable facilities and assistance required for safe and convenient inspection and testing. The foregoing shall not relieve Seller of its obligation to permit Buyer full and adequate inspection and testing away from Seller’s premises. Payment shall not constitute Buyer’s acceptance of the Deliverables nor impair Buyer’s right to inspect and/or test the Deliverables or exercise any of its remedies. Upon notice of rejection of defective Deliverables, risk of loss of such Deliverables shall be upon Seller until redelivery, if any, to Buyer. Rejected Deliverables may be returned to Seller or held by Buyer, both at Seller’s risk and expense, subject to Seller’s disposal instructions.
  10. Default. Buyer may, by written notice to Seller, cancel this purchase order or any release or order subject to this purchase order for default, (a) if Seller fails to deliver the Deliverables strictly within the time specified in this purchase order, or if no time is specified, within a reasonable time; (b) if the Deliverables delivered do not conform to this purchase order or if Seller fails to perform any of the other provisions of this purchase order, or so fails to make progress as to endanger performance of this purchase order in accordance with its terms; or (c) if Seller’s financial condition shall at any time become unsatisfactory to Buyer. Upon such cancellation, Buyer shall not be liable to Seller for any amount. Seller will deliver to Buyer any of the Deliverables for which Buyer shall make written request prior to or upon cancellation, for which Buyer will pay Seller the fair value of any such Deliverables so requested and delivered. Buyer may pursue any remedies available at law or in equity and Seller shall be liable to Buyer for any and all damages suffered by Buyer by reason of Seller’s default. Seller shall cooperate with any transition of the delivery of the Deliverables as reasonably requested by Buyer.
  11. Change Orders. Buyer shall have the right by written notice to change the terms of this purchase order, the drawings, specifications or other descriptions, the time, method or place of delivery or the method of shipment or packaging or to suspend delivery of the Deliverables. Upon receipt of such notice, Seller shall proceed promptly to make such changes. If any such change causes a change in the cost of the Deliverables or in the time required for performance, Seller shall provide prompt notice to Buyer of any such change and an equitable adjustment shall be negotiated promptly and this purchase order shall be modified in writing accordingly.
  12. Title and Risk of Loss or Damage. Title to Deliverables shall remain with Seller until payment for the same is made by Buyer, at which time title shall pass to Buyer. Risk of loss or damage to Deliverables shall remain with Seller until their delivery to Buyer’s designated location, at which time risk of loss of damage to Deliverables shall pass to Buyer.
  13. Intellectual Property and Proprietary Rights. Seller shall at its expense indemnify, defend and hold harmless, Buyer, its directors, officers, employees, affiliates, subsidiaries, agents, customers and end users, from any and all loss, damages or liability (including, without limitation, reasonable legal fees and costs) for or on account of, or resulting from, any claim of infringement of any existing or future copyrights, patents, or trademarks, misappropriation of any trade secrets, or violation of any other intellectual, proprietary or industrial rights, with respect to any of the Deliverables. The fact that Buyer furnishes specifications to Seller with respect to any of the Deliverables shall neither relieve the Seller from its obligations under this purchase order nor limit Seller’s liability in connection with the Deliverables, nor constitute an undertaking by Buyer to hold Seller harmless against any such claim which arises out of compliance with the specifications.
  14. Confidential Information. Seller shall not disclose to any third party or use any confidential information of Buyer’s concerning this purchase order or other material intended for use in connection with this purchase order without Buyer’s prior written consent. Any knowledge or information which Seller may disclose to Buyer in connection with the purchase of any of the Deliverables shall not, unless Buyer otherwise specifically agrees in writing, be deemed to be confidential information and shall be acquired free from any restriction as part of the consideration for this purchase order.
  15. Termination. At any time Buyer, at its option, may terminate this order for convenience in whole or in part by written notice. A stop work order or any other form of written notice requiring Seller to immediately cease performance under this purchase order shall obligate Seller to immediately stop work and take any actions necessary to mitigate the impact of such notice. If Buyer does not give Seller written notice to resume work within twenty (20) days after its initial stop work order, this purchase order shall then be deemed terminated for Buyer’s convenience as of the twenty-first (21st) day after the initial stop work order. Any claim of Seller shall not exceed reasonable demonstrated costs it has incurred in performance of this purchase order prior to notice of termination and shall in no event exceed the total amount of this purchase order. Buyer shall remit to Seller any payment due to Seller for documentable and reasonable costs incurred before receipt of Buyer’s notice of termination in performance of this purchase order.
  16. Compliance with Law. Each party shall comply with all applicable laws, including without limitation, government export control, privacy and data protection laws, and anti-bribery laws.
  17. Delays. Whenever an actual or potential labor dispute or other event beyond the reasonable control and without the fault or negligence of the Seller is delaying or threatens to delay the timely delivery of the Deliverables, Seller shall immediately give written notice of delay, including all relevant information regarding the delay, to Buyer. In addition, Seller shall take all reasonable steps to avoid or remove the cause of such delay and mitigate the harm of such delay to Buyer and will resume performance (if suspended) as soon as the cause of delay is removed. In the event the Seller’s performance is delayed or is expected to be delayed by more than five (5) business days, the Buyer upon written notice to Seller may terminate this purchase order for its convenience in accordance with Section 15 of this purchase order.
  18. Assignment and Subcontract. Neither this purchase order nor any duty or right under this purchase order shall be delegated, assigned or subcontracted without the prior written consent of Buyer. Any assignment not made in accordance with the terms and conditions of this Section is void and of no effect.
  19. Advertising. Seller shall not, without the prior written consent of Buyer, in any manner advertise or publish the fact that Seller has contracted to furnish Buyer the Deliverables under this purchase order.
  20. Personal Injury and Property Damage Indemnification. Seller agrees at its expense to indemnify, defend, and hold harmless Buyer, its directors, officers, employees, affiliates, subsidiaries, agents, customers and end users from any and all loss, claims and liability, including, without limitation, reasonable legal fees and costs, for death, injury or disability of any person or damage to or destruction of property (including, without limitation, the loss of use of any property or the presence of hazardous substances at any property) caused by or resulting from the acts or omissions of Seller, its agents, suppliers or employees in connection with the performance of this purchase order. During the performance of this purchase order, Seller shall maintain in full force and effect, at its sole cost and expense, the minimum insurance coverage stated below, written on an “occurrence basis” and not “claims-made” basis (unless otherwise stated), covering activities performed under this purchase order, including without limitation, coverage of all automobile exposure, all property liability exposure and all contractual liability exposure. All insurance shall be placed with reputable insurance companies acceptable to Buyer with a current rating in A.M. Bests Insurance Rating guide of at least A-X and licensed to do business in the province(s) where the purchase order is being performed. Seller shall maintain insurance with the following minimum policy limits:
    1. Worker's Compensation - as required by code, ordinance or government regulation of the state, nation, territory or province where activities are performed and with Employer's Liability of not less than $500,000 per occurrence;
    2. Business Automobile Liability covering all owned, non-owned, and hired vehicles used in connection with the performance of this purchase order with limits not less than $2.0 million per occurrence for bodily injury and property damage;
    3. Commercial General Liability written on a broad form basis, including but not limited to coverage for bodily injury, property damage, contractual liability, products and completed operations, subcontractors, personal injury and advertising injury with a combined single limit of not less than $2.0 million per occurrence for bodily injury and property damage; and
    4. If applicable, Professional Liability covering activities performed under this pur­chase order with limits of not less than $5.0 million per occurrence (written on a "claims-made" basis).
    Such policies, with the exception of the Professional Liability policy(ies), shall name Buyer, its directors, officers, employees and agents as additional insureds covering activities performed under this purchase order. All policies shall provide that coverage may not be materially changed, canceled or non-renewed without thirty (30) days prior written notice to Buyer. The insurance requirements set forth in this purchase order are not intended and shall not be construed to modify, limit or reduce the indemnifications made in this purchase order by Seller to Buyer or to limit Seller’s liability under this purchase order to the limits of the policies required to be maintained by Seller under this purchase order or in any other manner. Seller shall furnish Buyer with certificates of insurance for the coverages required under this purchase order prior to performance under this purchase order. Such insurance shall be primary to, not contributing with, and not in excess of, coverage which Buyer may carry. Seller’s insurance shall contain a severability of interest provision. The insurance afforded by these policies applies separately to each insured against whom claim is made or suit is brought, in the same manner as such insured would be covered if the policy insured only such party. The inclusion of such additional insureds shall not increase the policy limits.
  21. Hazardous Chemicals and Hazardous Materials. Prior to shipment or transfer of any hazardous chemical(s), Seller shall ensure that all regulatory requirements of the applicable jurisdiction(s) in regard to their shipment or transfer have been satisfied.
  22. Relationship of Parties. The Seller and Buyer are independent contractors. Nothing in this purchase order shall be deemed to create a partnership, joint venture, franchise, employment, or agency relationship between the parties. Neither party shall have the power or authority to bind or obligate the other party.
  23. Waiver. Any failure or delay by either party in exercising any right or remedy will not constitute a waiver.
  24. Entire Agreement. Unless another agreement expressly references and incorporates this purchase order into such agreement (or otherwise makes this purchase order supplementary to such agreement) and such agreement provides for an order of precedence, this purchase order, together with any data referenced in Section 3 of this purchase order, constitutes the entire agreement and exclusive statement of the terms between the parties with respect to the purchase and sale of the Deliverables under this purchase order and terminates and supersedes all previous negotiations, communications, representations, or agreements between the parties. No alteration, modification or amendment of any of the provisions in this purchase order shall be binding unless in writing and signed by Buyer’s authorized procurement representative(s). If any provision of this purchase order is held to be illegal, invalid or unenforceable by a court of competent jurisdiction, all other provisions shall remain in full force and effect.
  25. Governing Law. The laws of the province of Ontario and of Canada, as applicable, shall govern this purchase order.
  26. Dispute Resolution.
    1. The parties shall attempt in good faith to settle all disputes, issues and controversies arising out of this purchase order (“Dispute”). If they are unable to do so within thirty (30) days from when the Dispute first arose, either party may by written notice to the other party submit the Dispute to mediation. Immediately upon delivery of the notice, the parties will make a good faith effort to identify and retain a mutually acceptable mediator. If the parties cannot identify or retain a mediator within ten (10) business days, or having selected and met with the mediator cannot resolve the Dispute within five (5) business days thereafter, either party may by written notice to the other party direct the Dispute to arbitration pursuant to subsection b).
    2. The arbitration shall be undertaken before a panel of three (3) arbitrators. Each party shall select one (1) arbitrator within five (5) business days and the arbitrators so chosen will select the third arbitrator within a further period of ten (10) business days. The third arbitrator will chair the arbitration panel. Each party shall, forthwith, submit its argument in writing and make oral argument should the arbitration panel so require. The arbitration panel will make its decision and so advise the parties in writing within sixty (60) days of their appointment. The arbitration panel shall be restricted to construing the terms of this purchase order and cannot under any circumstances exceed the remedies available under this purchase order. Each party will bear its own costs of the mediation and/or arbitration and shall equally share the costs of the arbitration panel, unless the arbitration panel in its discretion and pursuant to representations by the parties awards some or all of the costs of the proceedings to one of the parties. The decision of the arbitration panel shall be by majority vote and final and binding on the parties. Any award by the arbitration panel may be filed in court and enforced as a judgment of the court. All documents submitted or created in the course of, or for the purposes of, the mediation and/or arbitration, including the arbitration award, shall be confidential and may not be disclosed by either party, except to their respective counsel and other advisors, without the written consent of the other party. The mediation or arbitration shall be undertaken in Toronto and except as otherwise stated above, shall be governed by the then current Arbitration Act of the province of Ontario.
    3. Notwithstanding subsections a) and b), neither party is precluded from seeking interim relief, including injunctive relief, from a court of competent jurisdiction where the subject-matter or other circumstances of the Dispute may require.
  27. Survival. Any provision in this purchase order which, by its nature, would reasonably be expected to be performed after the termination of this purchase order shall survive and be enforceable after such termination.
  28. Limitation of Liability. In no event shall Buyer be liable for any incidental, indirect, special, consequential or punitive damages, even if Buyer knew or should have known of the possibility of such damages.
  29. Ethical Conduct. Seller acknowledges that it has reviewed the Unisys Business Partner Code of Business Conduct and agrees to comply with such Code in connection with its performance under this purchase order. Unisys Business Partner Code of Business Conduct, which may change from time to time, is located at Unisys Business Partner Code of Business Conduct.​​​​​