These terms and conditions of purchase (the “Conditions”), including any special terms and conditions agreed to in writing in the purchase order (“PO”), shall apply to all purchases of goods and/or services by Weidmuller Ltd. (“Weidmuller” or “WM”) from supplier (“Seller”).
1. Acceptance, Contract
These Conditions are the only terms and conditions on which WM is prepared to purchase the goods and/or obtain the services from Seller and there are no understandings, inducements, commitments, terms or conditions of any kind, whether direct, indirect, collateral, express or implied, oral or written, other than as contained in these Conditions and the PO or as otherwise expressly agreed to by WM in writing signed by an authorized officer of WM. Acceptance of a PO by WM, and the resulting contract, is limited to the Conditions set forth herein. Any additional or different terms and conditions in Seller's response hereto or in any other documents submitted or sent by Seller to WM shall not be enforceable against and shall not bind WM unless WM expressly agrees to be bound to those terms in a separate writing signed by an authorized officer of WM. Seller shall be deemed to have agreed to all terms and conditions contained herein if any part of the described goods and/or service is conveyed to WM.
All invoices, packing lists, acknowledgments or any other documents affecting a WM PO shall contain a unique PO number. Seller shall also include WM's item number in the PO, if applicable. Packing lists shall be included with each shipment that indicate the contents therein. WM may return any invoice to Seller at WM’s sole discretion if the PO number and/or WM item number are not included with said invoice.
3. Shipping Instructions
All goods shall be shipped freight collect, FCA unless otherwise stated in these Conditions or the PO. The most recent INCOTERMS apply to all shipments.
4. Delivery, Inspection
4.1 Address: Unless otherwise specified by WM in writing, delivery must be made to Weidmuller Ltd. at 10 Spy Court, Markham, ON, L3R 5H6, Canada on or before the scheduled date on the PO. No change in scheduled delivery shall be permitted without prior written consent signed by an authorized representative of WM.
4.2 Marking: The goods shall be marked in accordance with the PO, WM's instructions, applicable regulations, requirements of the carrier, and in accordance with all applicable laws. The goods shall also be properly packed and secured so that they reach the delivery address in undamaged condition in the ordinary course. Seller shall bear the risk of loss for goods damaged during shipment.
4.3 Delivery Compliance: Seller shall comply with all applicable laws, regulations, directives, and legal requirements concerning constituents of materials, the manufacture, packaging, marking/identification, packing, delivery of the goods, and the performance of the services.
4.4 Inspection: All goods and/or services shall be properly inspected and tested by Seller prior to dispatch. Seller shall permit WM and/or its representatives to inspect and test the goods during the manufacture, processing, or storage of the goods prior to shipment to WM. WM's customers shall have the right to verify at source or upon receipt that Seller's product conforms to specified requirements.
4.5 Quantity: Shipments must equal amounts ordered unless otherwise agreed to by WM in writing.
4.6 Time is of the essence: TIME IS OF THE ESSENCE. If the goods are not delivered or the services are not performed on the date due, without prejudice to any other remedy, WM may elect the following remedies at its sole discretion: 1) WM may deduct 1% of the price stated in the PO for every week’s delay, up to a maximum of 10%; or 2) WM may claim as liquidated damages 1% of the price stated in the PO for every week’s delay, up to a maximum of 10%.
4.7 Non-Performance: If goods are not delivered or services not performed as stated in the PO, WM reserves the right to reject the delivery of goods or provision of services, purchase replacement goods elsewhere, and/or cancel all or part of the PO without liability to Seller.
4.8 Risk, Title: Seller shall bear the risk of loss, deterioration, or damage of the goods until the goods are delivered as specified in the PO unless otherwise agreed to by WM in writing. Title to the goods shall pass to WM upon delivery.
5.1 Stated Price: The price for the goods and/or services shall be the price stated in the PO and shall not be changed without the written consent of WM. The price as stated in the PO shall include packing acceptable to WM's requirements and/or all other cost elements according to agreed INCOTERMS other than sales tax.
5.2 No Extra Charges: No charges of any kind, including but not limited to cartage, boxes, handling, or insurance shall be chargeable to WM unless specifically agreed to in writing signed by an authorized representative of WM.
5.3 Absence of Price Statement: If price is not stated on the PO, Seller agrees that the goods or services shall be billed at the price last quoted to WM, or at the prevailing market price, whichever is lower.
5.4 Set Off: WM reserves the right at all times to set off any amount owing at any time to Seller or any affiliate of Seller.
6. Payment Terms
Payment terms shall be net 45 days unless otherwise agreed to.
7. Taxes Seller agrees to pay all excise, privilege, occupational, use, or other taxes applicable to purchase, sale, or use of materials. Seller agrees to indemnify, defend, hold harmless, and reimburse WM for any liability for any such taxes unless otherwise agreed to in a writing signed by an authorized representative of WM. WM shall pay applicable sales tax or provide a Tax Exemption Certificate to Seller.
8. Rejection and Defects
8.1 Acceptance: The goods and/or services subject to the PO are subject to acceptance by WM.
8.2 Rejected Goods: WM may reject any defective goods or goods that do not conform to the quality, quantity, standard, or description specified in any PO or contract. Rejected goods will be held at Seller's risk and expense (including but not limited to storage, inspection costs and any other costs incurred) and may be returned to Seller at Seller's risk and expense.
8.3 Hidden Defects: WM’s acceptance of goods delivered or services performed and/or received under the PO is contingent upon the goods’ and/or services’ conformity with the PO and specifications therein. WM’s acceptance of good and/or services shall not prejudice WM's rights to reject goods and/or services if WM discovers the existence of a hidden defect in the goods and/or services that (a) could be observed only after use, the passage of time, or close inspection that could not occur until after receipt of the goods and/or services; or (b) may not be apparent or discovered by inspection at delivery and/or performance, but that may be discovered at a later date. WM reserves the right to reject acceptance of any goods and/or services in the event any such hidden defects are discovered.
8.4 Non-Acceptance: WM's signature on any delivery note or other documentation presented for signature in connection with delivery of goods and/or services is not evidence that the correct quantity of goods has been delivered, that the goods delivered are in good condition or of the correct quality, or that the services have been performed according to the PO. Payment for goods will not constitute approval or acceptance of goods or services by WM. WM’s right of inspection shall survive payment.
9.1 General: Seller warrants that for a period of thirty-six (36) months from the date a good is delivered or a service is rendered to WM, such goods or services will be free from any defects in design, material, and workmanship, are in conformity with any applicable specifications from WM, and that title to goods shall be unencumbered, including, but not limited to, third-party intellectual property rights. If requested by WM, Seller shall, at WM’s option and within ten (10) days after notice by WM to Seller, refund the purchase price of defective or nonconforming goods, or correct or replace, at Seller's expense, the defective or nonconforming goods. All costs in connection with, or as a result of, such defective or nonconforming goods, including, without limitation, costs to transport the defective goods from WM to Seller and/or transport replacement goods to WM shall be borne by Seller. For defective or nonconforming services, Seller shall, at WM’s option within ten (10) days after notice by WM to Seller, refund the purchase price of the services, or correct or replace, at Seller’s expense, the services rendered.
9.2 Repair Warranty: In the event Seller replaces defective or non-conforming goods and/or services, the warranty referenced in Paragraph 9.1 above shall continue as to the corrected or replaced goods and/or services for thirty-six (36) months after the date of delivery of the corrected or replaced goods and/or repairs to WM. If Seller fails to repair and/or replace the goods and/or service within the time periods set forth herein, WM may at its discretion repair or replace the defective or nonconforming goods and/or services at Seller's expense. Rejected or nonconforming goods and/or services shall not be deemed delivered or performed within the time specified for performance in the PO.
10.1 General: Seller hereby agrees to indemnify and hold harmless WM, WM’s successors and assigns, WM’s customers, and WM’s customers’ successors and assigns against any and all suits, losses, damages, liabilities, costs and expenses (including reasonable attorneys' fees and other costs of defending any action) ("Losses") that such parties may sustain or incur (a) in connection with a breach of any representation, warranty, or undertaking made by Seller or WM’s, WM’s customers’, or their respective successors’ and assigns’ enforcement of these Conditions, or (b) in connection with the design, development, manufacture, distribution, sale, use, or repair of the goods and/or services, whether the claim be based upon a theory of breach of contract or warranty, negligence, strict liability, other tort, infringement or misappropriation of trade secrets or intellectual property, or any other legal theory, or (c) as a result of any suit, claim or demand under any environmental, health, safety, or other laws, rules, regulations, or requirements in connection with the manufacture, distribution, transportation, storage, use, or disposal of the goods or raw materials by Seller.
10.2 On-Site Performance: If Seller’s performance requires Seller, its employees, agents. or representatives to perform services or labor on the premises of WM, WM’s customers, and/or their agents, customers, or users, Seller agrees to indemnify and hold harmless WM, WM’s successors and assigns, WM’s customers, and WM’s customers’ successors and assigns against all suits, losses, claims, damages, liabilities, costs and expenses for injury or damage to person or property arising out of such performance. Seller agrees that it will, when requested and given reasonable notice of the pendency of any such suits, claims or demands, assume the defense of WM, WM’s successors and assigns, WM’s customers, and WM’s customers’ successors and assigns against any such suits, claims, or demands. Additionally, Seller expressly and specifically waives all immunity that may be afforded to Seller with respect to WM, WM’s successors and assigns, WM’s customers, and WM’s customers’ successors and assigns under the workers’ compensation laws of any state or jurisdiction.
11. Intellectual Property
11.1 IP Warranty: Seller warrants and represents that the goods and/or services and the sale and use of the goods and/or services will not infringe any patents, trademarks, trade dress, copyrights, trade secrets, or any other form of intellectual property held by a third party. Seller acknowledges that WM’s patents, trademarks, trade dress, copyrights, trade secrets, and/or any other form of intellectual property that WM provides to Seller are WM’s exclusive property and Seller disclaims all rights in same.
11.2 Resulting IP: Where payment is made for experimental, developmental, or research work to be performed in accordance with special designs or requirements of WM, Seller agrees to disclose and assign to WM all intellectual property rights in connection therewith, whether registered or unregistered in any jurisdiction, including, but not limited to, know-how, copyright, registered trademarks and applications therefor, registered designs and applications therefor, patents, and applications therefor. Seller expressly acknowledges that the goods and/or services and all resulting intellectual property provided in connection with experimental, developmental, or research work to be performed in accordance with special designs or requirements of WM are being provided on a made for hire basis.
11.3 Title to Drawings, etc., Confidentiality: All drawings, specifications, artwork, information, and/or data furnished by WM shall remain WM’s exclusive property, shall be used by Seller only for WM’s work, and shall be deemed WM’s proprietary information. Seller agrees to keep all such drawings, specifications, artwork, information, and/or data furnished by WM confidential and shall return such items to WM promptly at WM’s request. Seller shall not disclose such information to any person or entity other than the Seller's employee's and/or subcontractors necessary to provide the goods and/or services in connection with the PO. All such drawings, specifications, artwork, information, and/or data furnished by WM shall remain the property of WM and must be returned in original condition upon WM’s request.
12. Foreign Trade Regulations
Seller shall comply with all applicable export control, import, customs, and foreign trade regulations (“Foreign Trade Regulations”). Upon WM’s demand or in the event of any occurrence that could affect WM’s compliance with any Foreign Trade Regulation, Seller shall advise WM in writing within five (5) days of the demand or occurrence of any information and data required by WM to comply with all Foreign Trade Regulations, including, but not limited to: (a) all applicable export list numbers, including the Export Control Classification Number according to the U.S. Commerce Control List (“ECCN”); (b) the statistical commodity code according to the current commodity classification for foreign trade statistics and the HS (“Harmonized System”) coding; and (c) the country of origin (non-preferential origin); and - upon request of WM - Seller’s declaration of preferential origin (in case of European suppliers) or preferential certificates (in case of non-European suppliers). Seller shall be liable for any expenses and/or damage incurred by WM due to any of Seller’s breach of foregoing obligations.
13. Compliance Seller warrants that it shall comply with all laws applicable to the PO and resulting contract. Seller further acknowledges that it has received and reviewed the Weidmuller Code of Conduct which is available for download on Weidmuller’s respective website. Seller represents, covenants, and warrants that it shall follow the terms of Weidmuller’s Code of Conduct and that the terms of Weidmuller’s Code of Conduct are incorporated herein by reference.
Seller shall not assign the PO or any contract resulting from the PO without prior written consent by an authorized representative of WM.
15. Dispute Resolution, Governing Law, Jury Waiver
The validity, construction, performance of WM’s PO and any resulting contract shall be governed by and interpreted in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable in the Province of Ontario. Seller and WM expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods. Each of Seller and WM irrevocably submits to the exclusive jurisdiction of any Ontario courts sitting in Toronto in any action, application, reference or other proceeding arising out of or relating to the PO and any resulting contract and consents to all claims in respect of any such action, application, reference or other proceeding being heard and determined in such Ontario courts. Further, each of Seller and WM irrevocably waives, to the fullest extent it may effectively do so, the defence of an inconvenient forum to the maintenance of such action, application or proceeding and consents to any action, application, reference or other proceeding arising out of or relating to the PO and any resulting contract being tried in Toronto. Each of Seller and WM agrees that a final order in any such application, reference or other proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the order or in any other manner provided by applicable law. The parties expressly and knowingly waive any right to a trial by jury trial of any claim, demand, action, or cause arising from the PO or any resulting contract.
In the event any provision in these Terms shall be deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.