1.1 Any purchase order placed by WEST SHEFFORD FOOD CO. INC. is subject to these ‘General Terms & Conditions of Purchase’, unless otherwise expressly agreed in writing between the Supplier and WEST SHEFFORD FOOD CO. INC..
1.2 The Supplier’s terms of sale and delivery, as specified in e.g. the Supplier’s general terms of sale and delivery, in the Supplier’s order confirmation, at the Supplier’s website, or the like, do not apply, unless expressly accepted in writing by WEST SHEFFORD FOOD CO. INC..
2. PURCHASE ORDER
2.1 Any purchase order submitted by phone, or in other way, by WEST SHEFFORD FOOD CO. INC., will be accompanied by a written purchase confirmation (all together referred to as “Purchase Order”).
2.2 The Supplier shall sign and return a copy of WEST SHEFFORD FOOD CO. INC.’s purchase order, within seven (7) working days upon receipt hereof. If the Supplier does not return a signed copy within seven (7) working days, WEST SHEFFORD FOOD CO. INC.’s order will nevertheless be considered accepted by the Supplier in full and on the terms stipulated therein, including delivery time, price and the present ‘General Terms & Conditions of Purchase’.
3.1 The agreed prices are set out in the Purchase Order. The prices include packaging costs (if applicable) and the costs and expenses that will be incurred by the Supplier as a result of the applicable term of delivery, cf. clause 4.1.
4. TERMS OF DELIVERY
4.1 All agreed delivery clauses are interpreted according to the latest version of INCOTERMS by the International Chamber of Commerce in Paris, France, and in force at the time of submission of the purchase order by WEST SHEFFORD FOOD CO. INC.. The delivery clause for any purchase of goods will be as set out in the Purchase Order.
4.2 In the event that the Parties have not agreed the terms of delivery, the goods shall be delivered Delivered Duty Paid (DDP) according to the latest version of INCOTERMS.
5. SHIPPING INSTRUCTIONS
5.1 All shipments shall be properly packed so that the goods are fit for transportation and human consumption. The labelling of the purchased goods shall comply with WEST SHEFFORD FOOD CO. INC.’s instructions, if any, and applicable laws and regulations in the jurisdiction which the products are destined for.
5.2 The Supplier is obligated to submit documentation to WEST SHEFFORD FOOD CO. INC., that the container is in a properly and good condition and in accordance with WEST SHEFFORD FOOD CO. INC. instructions.
6. DELIVERY NOTES
6.1 All deliveries shall be accompanied by a delivery note in a form and format requested by WEST SHEFFORD FOOD CO. INC. from time to time.
7.1 The date of delivery set out in the Purchase Order means the time, when the purchased goods shall be delivered at the delivery address set out in the Purchase Order. The delivery time is fixed and may not be deviated from, unless otherwise agreed between the Supplier and WEST SHEFFORD FOOD CO. INC..
7.2 The ordered quantity shall be strictly observed. Part delivery is subject to prior agreement; otherwise the delivery may be rejected as incomplete by WEST SHEFFORD FOOD CO. INC.. WEST SHEFFORD FOOD CO. INC. as well as the Supplier is entitled to have an independent survey company to perform a survey upon arrival for proof. The Party ordering the survey will bear the expense of the survey unless such survey shows that the quantity of the goods is not in accordance with the Purchase Order.
7.3 The ordered quality shall be strictly observed. Quality other than the one ordered, entitles WEST SHEFFORD FOOD CO. INC. to reject the delivery in whole or partly by own choice. WEST SHEFFORD FOOD CO. INC. as well as the Supplier is entitled to have an independent survey company to perform a survey upon arrival for proof. The Party ordering the survey will bear the expense of the survey unless such survey shows that the quality of the goods is not in accordance with the Purchase Order.
7.4 In case of early delivery, WEST SHEFFORD FOOD CO. INC. or WEST SHEFFORD FOOD CO. INC.’s customer, to whom WEST SHEFFORD FOOD CO. INC. has resold the goods, reserves the right to refuse acceptance of the purchased goods. If WEST SHEFFORD FOOD CO. INC. and/or WEST SHEFFORD FOOD CO. INC.’s customer chooses to accept the purchased goods, the payment terms shall follow the agreed time of delivery.
7.5 The Supplier shall in writing inform WEST SHEFFORD FOOD CO. INC. immediately of any delay. Delays of any kind entitles WEST SHEFFORD FOOD CO. INC. to cancel the Purchase Order. WEST SHEFFORD FOOD CO. INC. shall give written notice of cancellation within 5 working days after having received information of the delay. A cancellation shall exempt WEST SHEFFORD FOOD CO. INC. from any obligation to pay in whole or in part any consideration, compensation etc. for the cancelled order. WEST SHEFFORD FOOD CO. INC. reserves the right to claim damages for any direct or indirect loss suffered by WEST SHEFFORD FOOD CO. INC. and its end-customers due to late delivery, including any expenses for agreed penalties and replacement purchase paid by WEST SHEFFORD FOOD CO. INC.. (Full back-to-back)
8.1 The Supplier warrants that the purchased goods will:
(i) be of merchantable quality and fit for human consumption;
(ii) comply with all applicable laws, rules, regulations or other legal requirements in all relevant jurisdictions concerning the manufacturing, packaging, hygiene, labelling and delivery of the goods to the extent necessary to ensure its proper performance of this agreement;
(iii) comply strictly with WEST SHEFFORD FOOD CO. INC.’s requirements and specifications of the purchased goods, including minimum shelf life; and (iv) be free from any defects.
8.2 The Supplier further warrants that the Supplier holds, and during transportation continues to hold, any applicable authorizations required to import the goods at the end jurisdiction and that any certificates required to such effect are issued.
8.3 The Supplier shall obtain all necessary licenses, clearances and other consents for the supply of the goods and shall at its own costs provide all assistance and necessary documents including but not limited to documents required by the relevant governmental authorities for the purpose and the import, sale and distribution of the goods by the Supplier.
9.1 The Supplier acknowledge, that goods sold and delivered to WEST SHEFFORD FOOD CO. INC. primarily will be instantly resold by WEST SHEFFORD FOOD CO. INC. without processing or storage. In spite hereof, the Supplier acknowledge, that it will not always be practically possible for WEST SHEFFORD FOOD CO. INC. to inspect the goods at delivery or upon receipt of the goods. Consequently, the Supplier agrees and understands that any written notice of defects received by WEST SHEFFORD FOOD CO. INC. from its customer, shall be forwarded by WEST SHEFFORD FOOD CO. INC. to the Supplier and be deemed as a valid notice of defect to the Supplier, and equal to any claim raised by WEST SHEFFORD FOOD CO. INC..
9.2 WEST SHEFFORD FOOD CO. INC. may, apart from claiming remedies for breach of contract under the general rules of Canadian law, cancel the order in whole or in part and/or claim damages for any direct or indirect loss suffered by WEST SHEFFORD FOOD CO. INC. as a result of the fault or defect, notwithstanding the cause thereof. (Back-to-back)
9.3 If WEST SHEFFORD FOOD CO. INC. or the Supplier discovers or obtain any information which proves that the goods are defective and such defect will cause harm to the public, the Supplier shall at its own cost and expense recall the goods. WEST SHEFFORD FOOD CO. INC. will assist the Supplier in the recall process at the cost of the Supplier.
10.1 Without prejudice to WEST SHEFFORD FOOD CO. INC.’s rights or rejection, the Supplier shall on demand indemnify WEST SHEFFORD FOOD CO. INC. in full against all direct, indirect and consequential liability, claims, loss of profits, loss of business, depletion of goodwill and similar losses, damages, costs and expenses (including legal expenses) awarded against or incurred by WEST SHEFFORD FOOD CO. INC. for any:
a) breach by the Supplier of any warranties or other obligations set out in these ‘General Terms & Conditions of Purchase’;
b) patent, trademark, copyright, trade secret or other intellectual property infringement claim relating to the names, goods, materials, or packaging, supplied by the Supplier; or
c) act or omission of the Supplier or its employees or subcontractors in supply and delivering the goods and/or providing the services.
11. TERMS OF PAYMENT
11.1 Terms of payment shall be as set out in the Purchase Order. If the terms of payment is not set out in the Purchase Order, the terms of payment will be net 30 days.
11.2 WEST SHEFFORD FOOD CO. INC. shall be entitled to retain any payment or set off any payment against any alleged outstanding claim against the Supplier.
11.3 The Supplier is not entitled to suspend deliveries of the goods as a result of any payment being outstanding.
11.4 The Supplier is not entitled to demand interest nor charge a fee if payment is late.
12. FORCE MAJEURE
12.1 Neither WEST SHEFFORD FOOD CO. INC. nor the Supplier shall be liable to the other for default or delay in performing its obligations, if caused by an event beyond reasonable control, provided that the affected party gives prompt written notice of any such inability to perform to the other Party. Events beyond reasonable control includes, but is not limited to, plagues, epidemics, natural disasters, war, civil war, riots, terror, strikes, lockouts, and compliance with any governmental rules or regulations.
12.2 The Party, for whom the impossibility to fulfil its obligations under the terms of the Purchase Order, shall advise the other Party immediately of the occurrence mentioned above. Within fourteen (14) calendar days after the beginning of the incident, the Party shall forward evidence of the incidence provided by the country’s Competent Government Authorities where the incident occurs
12.3 Under such circumstances the Supplier, however, is still obligated to proceed collection of all certificates necessary to hasten the delivery of the goods.
12.4 If the circumstances proceeds for more than ten (10) weeks, each Party shall be entitled to cancel the order or part of the order, without this being considered a breach of contract. None of the Parties shall have the right to claim compensation of possible losses from the other Party.
13. PRODUCT LIABILITY
13.1 To the extent that a third party advances a claim for product liability against WEST SHEFFORD FOOD CO. INC., which is attributable to the goods delivered by the Supplier, WEST SHEFFORD FOOD CO. INC. shall have full right of recourse against the Supplier. (Back-to-back)
13.2 The Supplier shall accept to join as a party before the same forum which tries a claim for product liability against WEST SHEFFORD FOOD CO. INC.
14.1 The Supplier shall at its own costs maintain a general liability insurance (including products liability) and such other insurances as WEST SHEFFORD FOOD CO. INC. may specify to the Supplier and which includes WEST SHEFFORD FOOD CO. INC. as additional insured. The Supplier shall provide a certificate of insurance policies to WEST SHEFFORD FOOD CO. INC. upon request.
15.1 If any clause(s) of these terms is/are finally determined to be invalid or unenforceable, the balance of these conditions shall remain in effect. In this case the clause(s) must be replaced by such valid and enforceable clause(s) as will come as close to the purpose and legal position of the invalid or unenforceable clause(s) as possible.
16.1 Failure by WEST SHEFFORD FOOD CO. INC. to exercise or enforce any rights under these ‘General Terms & Conditions of Purchase’ shall not be deemed to be a waiver of any such right, nor to be a bar to the exercise or enforcement thereof at any time or times thereafter.
17. WEST SHEFFORD FOOD CO. INC. INTELLECTUAL PROPERTY RIGHTS
17.1 WEST SHEFFORD FOOD CO. INC.’s intellectual property rights, including – but not limited to – names, trademarks and logos, shall at all time be and remain the exclusive property of WEST SHEFFORD FOOD CO. INC..
17.2The Supplier is not allowed to use WEST SHEFFORD FOOD CO. INC.’s intellectual property rights without the prior written consent of WEST SHEFFORD FOOD CO. INC..
18.1 The Supplier agrees to keep secret and confidential any and all written and/or oral information of any kind related to the business relationship between the Supplier and WEST SHEFFORD FOOD CO. INC.. The Supplier agrees to use information obtained strictly for the purpose of delivery, and not to disclose such information to a third party.
19. JURISDICTION AND APPLICABLE LAW
19.1 Any dispute arising out of the Parties’ agreement on purchase, including the present ‘General Terms & Conditions of Purchase’ and questions of product liability shall be settled in accordance with Canadian law and be subject to the exclusive jurisdiction of Ontario, Canada.
19.2 Notwithstanding section 19.1, WEST SHEFFORD FOOD CO. INC. shall nevertheless always be entitled in lieu hereof to bring an action against the Supplier at the Supplier’s venue. Furthermore, WEST SHEFFORD FOOD CO. INC. shall be entitled to request that a dispute be settled by arbitration arranged by Canadian Arbitration in accordance with the rules of arbitration procedure adopted by Canadian Arbitration and in force at the time when such proceedings are commenced. The arbitration tribunal shall be domiciled in Ontario, Canada and the proceeding be conducted in English. This clause 19.2 shall not, however, prevent either party from seeking interlocutory remedies such as the requesting of an injunction, attachment, etc
19.3 The Supplier allows any dispute between the Supplier and WEST SHEFFORD FOOD CO. INC. and/or between the Supplier and WEST SHEFFORD FOOD CO. INC.’s customers to be settled before the same forum as disputes between WEST SHEFFORD FOOD CO. INC. and WEST SHEFFORD FOOD CO. INC.’s customers are settled.