Keycafe Standard Purchase Order Terms and Conditions

Last updated May 9, 2022.

These Standard Purchase Order Terms and Conditions ("Terms") govern the purchase and sale of all products sold to Keycafe Inc. or any of its subsidiaries or designates purchasing products on its behalf (collectively, "Purchaser") by the supplier ("Supplier") identified on the purchase order issued by Purchaser to Supplier (each a "PO"). These Terms may only be waived or modified as provided herein.

1. Acceptance and Terms and Conditions. The parties agree that the purchase of goods ("Goods") by Purchaser from Supplier under a PO is conditioned upon and subject to the terms and conditions set forth in these Terms. These Terms shall apply to and are incorporated into every PO issued by Purchaser to Supplier, regardless of whether they are expressly referenced in the PO, until superseded by later terms and conditions issued by Purchaser. Acceptance by Supplier shall be limited to the terms hereof and Purchaser expressly rejects any additional or different terms stated by Supplier in any prior or future offer, quotation or other expression in relation to the subject matter hereof. No other terms or conditions including, without limitation, Supplier's standard printed terms and conditions, or Supplier's proposal, PO acknowledgment, invoice or otherwise, will have any application to the PO or any transactions occurring pursuant hereto, unless specifically accepted in writing by Purchaser.
2. Pricing. No extra charges of any kind will be allowed unless specifically agreed to in writing by Purchaser. All applicable taxes arising out of transactions contemplated by the PO will be borne by Supplier except as otherwise agreed to by the parties in writing. If Supplier reduces its prices for such Goods during the term of the PO, Supplier shall correspondingly reduce the prices of Goods sold to Purchaser after the date of such price reduction thereunder. Supplier warrants that it is selling Goods to Purchaser at the lowest or most favorable prices that it offers to other buyers for Goods of the same quality to that herein. Purchaser will be entitled at all times to set off any amount owed at any time by Supplier or any of its affiliates to Purchaser or any of its affiliates against any amount payable at any time by Purchaser in connection with the PO.
3. Invoices, Payment Terms.
(a) Invoices. All invoices or receiving documentation must contain the following information: PO number, good or item number, description of each good or item, sizes, quantities, and unit prices and any other information as requested by Purchaser.
(b) Payment Terms. Unless otherwise agreed to in the PO, Supplier shall invoice Purchaser upon shipment of the Goods and payment shall be due thirty (30) days following Purchaser's receipt of the invoice.
4. Delivery Terms. Unless otherwise set forth on the PO, delivery, including transfer of title and risk of loss, is not complete until Goods have been actually received and accepted by Purchaser as set forth herein. Except for delays caused by Purchaser or Force Majeure (as defined in Section 19(g)), time is of the essence with respect to delivery under the PO. If, for any reason, Supplier anticipates difficulty in complying with a required delivery date or meeting any other requirements in the PO, Supplier shall immediately notify Purchaser in writing, providing details of the anticipated difficulty in complying. If Supplier does not comply with Purchaser's delivery requirements, in addition to such other rights and remedies it may have, Purchaser may, in its sole discretion, (a) require delivery by the fastest available method to meet the delivery dates in the PO at the sole expense of Supplier, (b) submit a revised PO or (c) terminate the PO without liability to Purchaser. Supplier shall be liable to Purchaser for all reasonable costs incurred by Purchaser arising from Supplier's failure to comply with Purchaser's delivery requirements.
5. Packaging. All Goods must be packaged in the manner specified by Purchaser and in conformance with all applicable laws (including the laws of the intended destination country), and shipped in the manner and by the route and carrier designated by Purchaser. If Purchaser does not specify the manner in which the Goods must be packaged, Supplier shall package the Goods so as to avoid any damage in transit. If Purchaser does not specify the manner of shipment, route or carrier, Supplier shall ship the Goods at the lowest possible transportation rates, consistent with Supplier's obligation to meet the delivery schedule set forth in the PO. Supplier will be responsible, and liable to Purchaser, for any damages arising due to Supplier's failure to comply with this Section 5.
6. Supporting Documents. Supplier shall include with each delivery of Goods the following: (a) a packing slip that references part numbers, as applicable, and Purchase Order number; and (b) any other documentation reasonably requested by Purchaser in respect of such Goods, including without limitation such documentation as required under applicable laws (such as certificates of origin, material compliance forms and testing certificates).
7. Inspection. All Goods will be subject to inspection and test by Purchaser at all times and places, including the period of manufacture and in any event prior to final acceptance. Final acceptance or rejection of the Goods will be made within thirty (30) days following Purchaser's receipt of such Goods (except as otherwise provided in the PO), but failure to inspect and accept or reject Goods, or failure to detect defects by inspection, will not relieve Supplier from responsibility for non-conforming Goods. Purchaser's payment for the Goods shall not constitute its acceptance of the Goods. Goods rejected and Goods supplied in excess of quantities ordered may be returned to Supplier at Supplier's expense. Payment, if any, made for any Goods rejected hereunder shall be promptly refunded by Supplier. Supplier will provide and maintain an inspection and process control system acceptable to Purchaser covering the Goods ordered. Records of all inspection work by Supplier will be kept complete and available to Purchaser during the term of the PO and for seven (7) years after Supplier's delivery of the applicable Goods. If any of the Goods are found at any time to be defective in material or workmanship, or otherwise not in conformance with the requirements of the PO, including any applicable drawings and specifications, then Purchaser, in addition to such other rights and remedies it may have under the PO or at law, may in its sole discretion reject and return such Goods at Supplier's expense, require Supplier to inspect the Goods and remove non-conforming Goods and/or require Supplier to replace non-conforming Goods with conforming Goods. If Supplier fails to make the necessary inspection, removal and/or replacement in a time and manner satisfactory to Purchaser, Supplier shall, in addition to such other rights and remedies Purchaser may have by under the PO or at law, promptly refund Purchaser all amounts Purchaser paid for the non-conforming Goods and reimburse Purchaser for all amounts incurred by Purchaser in returning or destroying the non-conforming goods.
8. Warranties. For a time period equal to no less than (a) 30 months from Purchaser's receipt of conforming Goods or (b) such greater period of time specified on the face of the PO, Supplier warrants that all Goods supplied to Purchaser under the PO shall be (i) free of any claim of any nature by any third party, including without limitation any claim of infringement of third party intellectual property rights, and that Supplier shall convey clear title to Goods to Purchaser, (ii) of merchantable quality free from all defects in design, workmanship and materials, and shall be fit for the particular purposes for which they are purchased, (iii) in compliance with all applicable laws, rules and regulations, and (iv) manufactured and provided in strict accordance with the specifications, designs, drawings or other requirements, including performance specifications, for such Goods. The warranties contained in this Section 8 are in addition to and are not be construed as restricting or limiting any warranties or remedies of Purchaser, express or implied, which are provided under the PO or at law. Any attempt by Supplier to limit, disclaim or restrict any such warranties or remedies of Purchaser, in any manner whatsoever, shall be null, void and ineffective. Inspection, test or acceptance of the Goods, or use of the Goods either on their own or in Purchaser's products or equipment, shall not affect Supplier's obligations under the warranties contained in this Section 8. Upon notice from Purchaser that Goods failed to conform to any warranty within the applicable warranty period, in addition to any rights or remedies Purchaser may have under the PO or law, Supplier shall reimburse Purchaser for all direct and indirect costs incurred by Purchaser as result of such failure, including without limitation all repair and replacement costs, and Supplier shall replace such defective Goods at no cost to Purchaser. Non-conforming Goods shall be returned to Supplier at Supplier's expense and at Purchaser's discretion.
9. Purchaser's Property. Tangible or intangible property of any nature, including without limitation equipment, tooling, samples, prototypes, materials, software, drawings, specifications, prototype articles, field notes and descriptions furnished to Supplier by Purchaser or specifically paid for in whole or in part by Purchaser, and any replacements or attachments, and any intellectual property rights therein and thereto, are the property of Purchaser and, unless otherwise agreed in writing by Purchaser, will be used by Supplier solely to provide Goods to Purchaser. Supplier will not substitute any property or take any action inconsistent with Purchaser's ownership of such property. While in Supplier's custody or control such property will be held at Supplier's risk, will be kept insured by Supplier at its expense for its replacement cost with loss payable to Purchaser, and will be subject to removal at Purchaser's written request, in which event Supplier will prepare such property for shipment and redelivery to Purchaser in the same condition as originally received by Supplier, reasonable wear and tear excepted, all at Supplier's expense.
10. Design and Manufacturing Rights. Supplier agrees that, where Supplier undertakes any research, development and/or design activities using information provided by Purchaser or in the course of preparing to fulfill or fulfilling any PO, Purchaser shall own all rights in any resulting work product, including without limitation all intellectual property rights therein and thereto, and Supplier shall take all necessary steps as directed by Purchaser to ensure that Purchaser obtains full legal title in and to said rights, including executing an assignment of rights document prepared by Purchaser.
11. Default. Should Supplier (a) become insolvent or file or has filed against it a petition in bankruptcy or (b) default in the performance of, or otherwise breach, any provision of the PO, Purchaser may terminate all or any part of the PO on written notice of default from Purchaser specifying such failure. Supplier will continue performance of the PO to the extent not terminated and will be liable to Purchaser for any excess costs for such similar Goods. As an alternate remedy, and in lieu of termination for default, Purchaser, at its sole discretion, may elect to waive deficiencies in Supplier's performance, in which case the parties will, acting in good faith, promptly negotiate an equitable reduction in the price of the Goods purchased under the PO. The rights and remedies of Purchaser provided in this Section 11 are not exclusive and are in addition to any other rights and remedies provided under the PO or at law.
12. Indemnification. Supplier shall indemnify and hold Purchaser and its affiliates and their officers, directors, employees, consultants, representatives and agents (each an "Indemnified Party") harmless and, on Purchaser's request, shall defend each Indemnified Party from and against any or all third party claims, demands, litigation and proceedings of whatever kind, whether based upon negligence, breach of express or implied warranty, strict liability, infringement of intellectual property rights, or any other theory, and from and against all direct, indirect, special, exemplary, incidental or consequential damages of every kind whatsoever, arising out of, by reason of, or in any way connected with the Goods, the design, manner of preparation, manufacture, construction, completion or delivery or non-delivery of any Goods by Supplier, any breach by Supplier of any of its obligations hereunder, or any other act, omission or negligence of Supplier or any of Supplier's employees, workers, servants, agents, subcontractors or suppliers. Supplier shall, on request, pay or reimburse Purchaser or any other party entitled to indemnification hereunder for all costs and expenses, including attorneys' fees, as incurred by Purchaser or such other party in connection with any such claim, demand, litigation, proceeding, loss or damage. In addition, for infringement claims, Supplier will, at its own expense and at Purchaser's option, either procure for Purchaser the right to continue using the allegedly infringing item, replace it with a non-infringing equivalent or remove it and refund the purchase price and the transportation and installation costs thereof.
13. Changes.
(a) Purchaser Changes. At all times Purchaser will have the right to make changes to the PO, including changes to drawings, designs, configurations, specifications, quantities, methods of shipment or packing and delivery schedules or location of delivery. If any such changes cause an increase or decrease in the cost of or the time required for the performance of any work under the PO, an equitable adjustment will be made in the contract price or delivery schedule, or both, and the PO will be modified in writing accordingly. Nothing in this Section 13(a), including any disagreement with Purchaser as to any claimed adjustment, will excuse Supplier from proceeding with the PO as changed. Any claim by Supplier for adjustment under this Section 13(a) must be in a detailed writing and delivered to Purchaser within five (5) days after the date Supplier receives notification of change. Any change will be authorized only by a duly executed amendment to the PO. Information, such as technical information or guidance provided to Supplier by representatives of Purchaser, will not be construed as a change within the meaning of this Section 13(a).
(b) Supplier Changes. Supplier shall not make any changes in the specifications, physical composition of or processes used to manufacture the Goods hereunder without Purchaser's prior written consent.
14. Compliance with Laws. Supplier shall ensure that the Goods comply with all applicable laws, rules and regulations, including without limitation all applicable Canadian and foreign federal, state, provincial and local laws, orders, rules, regulations, guidelines, standards, limitations, controls, prohibitions or other requirements which are contained in, issued under, or otherwise adopted pursuant to such laws. From time to time, at Purchaser's request, Supplier shall provide certificates to Purchaser relating to any applicable legal requirements, in each case in form and substance satisfactory to Purchaser.
15. Confidential or Proprietary Information. Notwithstanding any document marking to the contrary, any knowledge or information that Supplier has disclosed or may later disclose to Purchaser, and which in any way relates to the Goods covered by the PO will not, unless otherwise specifically agreed to in writing by Purchaser, be deemed to be confidential or proprietary information, and will be acquired by Purchaser, free from any restrictions. Supplier will not transmit to Purchaser any sensitive personal information, including, but not limited to, identified health information, financial information, social security numbers, biometrics or other personally identified or identifiable information of like sensitivity. Supplier will keep confidential any technical, process, business, economic or other information derived from drawings, specifications and other data furnished by Purchaser in connection with the PO (in whatever form or format) and will not divulge, export or use, directly or indirectly, such information for Supplier's benefit without obtaining Purchaser's prior written consent. Except as required for performance of Supplier's obligations under the PO, Supplier will not use such information or make copies or permit copies to be made of such drawings, specifications or other data without the prior written consent of Purchaser. If any reproduction is made with prior consent, all proprietary and confidential notices included on the original version must be included by Supplier on such reproduction. Upon completion or termination of the PO, Supplier will promptly return to Purchaser all materials incorporating any such information and any copies, except for one record copy. Supplier agrees that no acknowledgment or other information concerning the PO or the Goods provided will be made public by Supplier without the prior written consent of Purchaser. Supplier acknowledges that irreparable harm may result if it breaches its obligations under this Section 15, that such breach would not be properly compensable by an award of damages and that, in addition to any other available remedies under the PO or at law, Purchaser will be entitled to seek injunctive relief to prevent a threatened or actual breach by Supplier of this Section 15.
16. Insurance. During the term of the PO and for a period of not less than two (2) years thereafter, Supplier will maintain: (i) commercial general liability insurance with limits no less than US$5,000,000 for each occurrence and in the aggregate; (ii) product liability insurance with limits no less than US$5,000,000 for each occurrence and in the aggregate; and (iii) product recall insurance with limits no less than US$5,000,000 for each occurrence and in the aggregate. Each of Supplier's insurance policies will include the following provisions: (a) the policy will include Purchaser as an additional insured; (b) the policy will provide contractual liability insurance evidencing that coverage is provided as respecting the indemnification clause contained in Section 12; (c) Supplier and its insurer each will and hereby do waive any rights of subrogation they each may have against Purchaser; (d) the policy will be primary and not contributing with any insurance carried by Purchaser; (e) the policy will provide to Purchaser thirty (30) days' prior written notice of any material change in or cancellation of the above coverage; and (f) in the event of any loss, any deductible will be payable solely by Supplier.
17. Termination. Purchaser may terminate all or any part of the PO for convenience at any time by written notice to Supplier. Upon such termination, Purchaser's liability will be limited to reasonable termination charges mutually agreed to by Supplier and Purchaser, provided that Supplier must specify any proposed charges in writing within fifteen (15) days after termination. The following sections of these Terms will survive the expiration or earlier termination of the PO: Sections 4, 8 through 10, 12, 14 through 19 and any other sections that by their nature are intended to survive such expiration or earlier termination.
18. Exclusivity. In this Section 18, "Custom Goods" means any Goods supplied by Supplier to Purchaser under the PO that are based on samples, prototypes, drawings, specifications, prototype articles and/or field notes provided to Supplier by Purchaser. During the term of the PO and for a period of not less than 5 years thereafter, Supplier will not manufacture any Custom Goods purchased by Purchaser under the PO on behalf of any third party, or otherwise sell, supply or provide any such Goods to any third party. Supplier acknowledges that irreparable harm may result if it breaches its obligations under this Section 18, that such breach would not be properly compensable by an award of damages and that, in addition to any other available remedies under the PO or at law, Purchaser will be entitled to seek injunctive relief to prevent a threatened or actual breach by Supplier of this Section 18.
19. Miscellaneous.
(a) Assignment. Unless Purchaser has provided prior written consent, any partial or complete assignment by Supplier of rights or delegation of obligations shall be void. Notwithstanding any permitted assignment, such assignment shall not relieve Supplier of its obligations and liabilities hereunder.
(b) Use of Name; Advertising. Supplier shall not use Purchaser's name, logo, trademark or any other proprietary information for any purpose whatsoever, including but not limited to any advertising and press releases, without the express prior written approval of Purchaser.
(c) Supplier's Inventory. Purchaser will have no obligation to request quotations or place POs with Supplier, both of which will be in Purchaser's sole discretion. Purchaser, in its sole discretion, will determine the actual quantity of Goods to be purchased. The quantity of Goods specified in forecasts supplied by Purchaser from time to time, or otherwise, is an estimate only. Supplier bears sole responsibility for managing Supplier's raw material, work in process and inventory, and Purchaser will have no liability with respect thereto (whether upon termination of the PO or otherwise) other than in connection with termination as provided herein.
(d) Foreign Purchases. Supplier agrees that Purchaser will not be a party to the importation of the Goods, that the transaction(s) represented by the PO will be consummated subsequent to importation, and that Supplier will neither cause nor permit Purchaser's name to be shown as ''importer of record'' on any customs declaration and that Supplier will comply with all applicable laws, rules and regulations governing foreign purchases and importation. Supplier will comply with all export and import laws of all countries involved in the sale of the Goods or any resale of the Goods by Purchaser.
(e) Anti-Corruption. Supplier must comply with all anti-corruption laws that are applicable to any of Supplier, Purchaser or the PO, including without limitation the Canadian Corruption of Foreign Public Officials Act (Canada), the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), the Criminal Code (Canada), the Foreign Corrupt Practices Act (United States) and the Bribery Act (United Kingdom) (collectively, "Anti-Corruption Law"), and must not give or offer to give, receive or agree to accept any payment, gift or other advantage which violates any Anti-Corruption Law.
(f) Anti-Child Labour. Supplier shall comply with all applicable labour and employment laws regarding, and prohibit, any form of child labour or other exploitation of children in the manufacturing and delivery of the Goods and the performance of its other obligations under the PO, consistent with provisions of the International Labor Organization's (ILO) Minimum Age Convention (No. 138), 1973. In addition, in connection with any International Organization for Standardization (ISO) certification, Supplier must comply with a Social Accountability Guideline pursuant to which such Supplier shall not use any unacceptable manufacturing practices, such as child labour, forced labour or unsafe or unsanitary working conditions.
(g) Force Majeure. Delay or non-performance of any obligation herein shall be excused if the cause of the delay is beyond the control of the party seeking to be excused from performance, is not attributable to such party's negligence and could not have been avoided or overcome ("Force Majeure"). The non-performing party will notify the other party as soon as possible and will use its best efforts to remedy the non-performance. Supplier's ability to sell the Goods at a more advantageous price or an increase in Supplier's procurement or production costs shall not constitute an event of Force Majeure.
(h) Waiver. Any waiver or failure to enforce any provision of the PO on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing signed by an authorized representative of the party making such waiver.
(i) Governing Law. The PO and any purchase between Purchaser and Supplier shall be construed and enforced according to the laws of the Province of British Columbia and the federal laws of Canada applicable therein, without regard to conflicts of laws principles. The parties expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods or any other international convention, agreement or protocol governing sales of goods.
(j) Arbitration. All disputes arising out of or in connection with the PO, or in respect of any defined legal relationship associated therewith or derived therefrom, shall be referred to and finally resolved by arbitration administered by the Vancouver International Arbitration Centre (VanIAC) pursuant to its applicable Rules. The place of arbitration shall be Vancouver, British Columbia, Canada. The number of arbitrators shall be one (1).
(k) Neutral Interpretation. The form of the PO has been prepared initially by Purchaser. However, the parties acknowledge that this is a negotiated agreement and, in the event of any dispute over its meaning or application, the PO shall be interpreted fairly and reasonably and not more strongly for or against either party.
(l) Signatures in Counterpart. The PO may be executed in several counterparts, each of which when executed shall be deemed to be an original, but all together shall constitute but one and the same agreement. A facsimile or electronic copy thereof shall suffice as an original.
(m) Entire Agreement. The PO sets forth the entire and only agreement between the parties regarding the subject matter thereof and supersedes any and all prior or contemporaneous agreements, understandings and proposals whether written or oral, between the parties. The PO may not be amended or modified otherwise than by a written agreement signed by the parties.
(n) Notice. All notices or other communications under the PO shall be in writing addressed to the party for whom it is intended at the addresses set forth in the PO. Either party may change its address for notice by giving written notice to the other party of the change. Any notice or other communication shall be deemed given no later than the date actually received. Notices will be deemed to have been given upon receipt (or when delivery is refused) and may be (i) delivered personally, (ii) sent via certified mail (return receipt requested), (iii) sent via electronic mail (with confirmation of receipt), or (iv) sent by recognized air courier service (return receipt requested).
(o) Remedies. Each of the rights and remedies reserved to Purchaser in the PO shall be cumulative and additional to any other remedies provided at law. No delay or failure by Purchaser in the exercise of any right or remedy shall affect any such right or remedy and no action taken or omitted by Purchaser shall be deemed to be a waiver of any such right or remedy.
(p) Severability. If any provision of the PO shall be held or deemed to be or shall, in fact, be illegal, inoperative or unenforceable, this provision shall not affect any other provision or provisions contained in the PO.
(q) Currency. Unless otherwise indicated in the PO, all dollar amounts referred to in the PO are in the currency of Canada.