Purchase Order — Terms and Conditions [North America]

Purchase Order — Terms and Conditions

    1. ACCEPTANCE/AGREEMENT. This purchase order is for the purchase of the goods and/or services described on the face of this purchase order (collectively, “Goods”) from Pinnacle Renewable Energy Inc., or its affiliate identified on the face of this purchase order (“Buyer”) to the party to whom this purchase order is addressed (“Supplier”). This purchase order is deemed accepted, and becomes a binding contract, governed by the terms herein, when Supplier commences work on the Goods, ships the Goods and/or provides the Goods. Any acceptance of this purchase order is limited to the express terms contained herein. Buyer may withdraw this purchase order at any time before it is accepted by Supplier. This purchase order constitutes the sole and entire agreement of the parties with respect to the subject matter, and supersedes all prior and contemporaneous understandings, agreements, negotiations, communications, representations and warranties, both written and oral. Buyer expressly rejects any additional or different terms contained in any of Supplier’s forms or documents, including but not limited to Supplier’s proposal, quotation, acceptance form, invoice, or other document. Buyer objects to all additions, exceptions, or changes to these terms, unless approved by Buyer in writing. The language, terms, and conditions of this purchase order shall prevail over any conflicting language, term or condition contained in any other document, unless the Buyer and Supplier enter into a definitive agreement, in which case the agreement’s terms and conditions shall prevail.
    2. PRICE. This purchase order shall not be filled at a higher price than shown on the purchase order. Prices shall be inclusive of all applicable costs, including, but not limited to, custom duties, tariffs, taxes (including sales, goods and services, value added, use, excise and property taxes), shipping, packaging, boxing, crafting, labeling, storage, insurance, and similar charges.
    3. PRICE WARRANTY. Supplier represents and warrants that the prices for the Goods sold to Buyer hereunder are as favorable as those currently offered to its customers for the same or similar Goods in similar quantities, in compliance with all laws and regulations. If Supplier charges another customer a lower price for such Goods during the term of this purchase order, Supplier agrees to reduce the price hereof correspondingly.
    4. CHANGES. Buyer may at any time, in writing, direct or authorize Supplier to make changes or modifications within the general scope of this purchase order. If such changes or modifications necessitate an increase or decrease in the amount due or in the time required for performance, such matters shall be agreed upon in writing prior to proceeding with the change. No payment shall be made for any change or modification not directed and authorized prior to the change.
    5. SUBSTITUTION. No substitution or modification of any kind may be made without Buyer’s prior written consent.
    6. INDEPENDENT CONTRACTOR. Supplier is an independent contractor to Buyer, and shall have complete control of its employees engaged in the performance of this purchase order. Supplier’s employees shall not be considered employees, servants, or agents of Buyer in any respect. Neither party shall have authority to contract for or bind the other party in any manner whatsoever.
    7. WORK PRODUCT. Any and all documents/materials created for Buyer as part of any Goods outlined in this purchase order shall become the property of Buyer, and Supplier assigns to Buyer all rights, title and interest in and to such documents/materials, including all intellectual property rights, copyrights, and/or patents contained therein.
    8. SCHEDULE.  Time is of the essence for this purchase order. Supplier shall deliver the Goods in the quantities and on the date(s) specified in this purchase order or as otherwise agreed in writing by the parties. If delivery of items or rendering of Goods is not completed in accordance with such schedule, Buyer reserves the right, in addition to its other rights and remedies, to immediately terminate this purchase order without liability.
    9. DELIVERY, TITLE, RISK. Supplier shall deliver the Goods Delivered Duty Paid (DDP) Incoterms® 2020 to the address specified in this purchase order (“Delivery Location”) during Buyer’s normal business hours, or as otherwise instructed by Buyer.  Title shall pass to Buyer upon (i) delivery to the Delivery Location and (ii) acceptance by Buyer in accordance with Paragraph 12. Risk of damage or loss following shipment, but prior to title transfer, shall be the responsibility of Supplier. Supplier shall provide Buyer with all transportation documents.
    10. FORCE MAJEURE. Either party may delay delivery or acceptance occasioned by causes beyond its control (but not changes to direct or indirect costs including tariffs), such as government action or failure of the government to act where such action is required, strike or other labor dispute, fire, act of God or unusually severe weather. If such party’s delay continues for 30 days, the other party may terminate this purchase order by providing the affected party with written notice.
    11. WARRANTY. Supplier expressly warrants that all Goods furnished shall be in accordance with applicable specifications and appropriate professional standards, free from defects in materials, workmanship, and design, and fit for the purposes intended by Buyer. Supplier warrants that it has clear title to the Goods and that such Goods shall be delivered free of liens or encumbrances. The warranties herein shall: (i) be in addition to any warranties of broader scope and service warranties and guarantees given by the supplier or manufacturer; (ii) survive inspection, test, acceptance, and payment; and (iii) extend to Buyer’s successors, assigns and customers, and to the users of the Goods. Supplier shall, at its own cost and expense, promptly and at Buyer’s election replace, correct defects in, or refund Buyer for nonconforming Goods. If Supplier fails to do so, Buyer may procure replacements for the nonconforming Goods from another supplier and/or terminate this purchase order, and Supplier agrees to reimburse Buyer for all related costs of the replacements.
    12. INSPECTION. All Goods purchased are subject to inspection, testing, and approval at the Delivery Location by Buyer, notwithstanding prior payments or inspections elsewhere. Buyer, without limiting its other rights, may reject any Goods that are not as ordered or otherwise do not conform with the terms of this purchase order, and Buyer may require Supplier to perform the remedies for non-conforming Goods in Section 11. Acceptance of any Goods shall not be deemed to alter or affect the obligations of Supplier or the rights of Buyer under any other term or condition of this purchase order.
    13. INVOICING. Supplier shall submit invoices on a monthly basis, as soon as practicable after the end of such month, to [email protected] or Pinnacle Renewable Energy Inc., 1100-543 Granville Street, Vancouver, BC V6C 1X8. Buyer shall pay properly invoiced amounts except for any disputed amounts, within sixty (60) days from Buyer’s receipt of invoice. Buyer reserves the right to set off at any time any amount owing to it by Supplier against any amount payable by Buyer to Supplier.
    14. COMPLIANCE WITH LAWS. Supplier warrants that all Goods supplied hereunder will have been produced in compliance with, and Supplier agrees to abide by, all applicable laws, legislation, rules, regulations, and governmental requirements of the United States and of any jurisdiction in or from which Supplier is providing the Goods, including but not limited to all import and export laws, anti-bribery and anti-corruption laws (including the Corruption of Foreign Public Officials Act (Canada), the Criminal Code (Canada), and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), as well as U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act), environmental laws, and health, safety, non-discrimination, employment, labor and other workplace laws and regulations. Contractor is required to comply with Buyer’s Supplier Code of Conduct (“Code”), which is located at Supplier Code of Conduct. To the extent the Code conflicts with this Agreement, this Agreement will control.
    15. COMPLIANCE WITH SAFETY PROCEDURES. Any personnel engaged in providing Goods shall be fully qualified, and shall be authorized, where required, under applicable laws, to perform the Supplier’s obligations under this purchase order,  Supplier shall have all necessary licenses, permits, registration certificates, or other approvals as may be required by applicable laws and regulations. Supplier shall fully comply with Buyer’s safety policies and procedures when at Buyer’s location(s).
    16. INSURANCE. Supplier shall maintain such general liability insurance, including product liability, contractual liability, completed operations, contractor’s liability and protective liability, automotive liability insurance (including non-owned automotive liability), worker’s compensation and employer’s liability insurance that is consistent with industry standards and will adequately protect Supplier against all damages, liabilities, claims, costs and expenses. Supplier agrees to submit certificates of insurance evidencing its insurance coverage when requested by Buyer. All insurance coverage provided hereunder shall be primary insurance with respect to Buyer’s obligations, and shall not be considered to be contributing insurance with any of Buyer’s policies of insurance.
    17. INDEMNITY. Supplier shall indemnify, defend, and hold Buyer, and its direct or indirect parent company, subsidiaries, affiliates, and their respective directors, officers, shareholders, employees, agents, representatives, successors and assigns, harmless from and against any and all claims, actions, suits, proceedings, losses, liabilities, penalties, damages, costs or expenses (including legal fees and disbursements) of any kind whatsoever resulting from: (i) injuries to or death of any and all individuals and damage to, loss, and/or destruction of property, including, without limitation, property of Buyer, arising out of or connected in any manner with the performance hereunder, the delivery or Supplier’s installation of the Goods or any defect in the Goods; (ii) third party claims of any kind, whether based upon negligence, strict liability or otherwise, arising out of or connected in any manner to Supplier’s acts or omissions in breach of this purchase order; or (iii) Supplier’s failure to comply with any terms of this purchase order.
    18. INTELLECTUAL PROPERTY. Supplier expressly warrants that there has been no violation, misappropriation, or infringement of any trade secret, patent, trademark, copyright, or other third party property right (including, without limitation, any violation of a third party license) in any way connected with or arising out of the activities contemplated in this purchase order. No license, right to use or other intellectual property rights contained in any information provided by Buyer to Supplier are or shall be deemed to be granted to Supplier.
    19. CONFIDENTIALITY. Supplier shall consider all information furnished pursuant to this purchase order, or developed or obtained by Supplier in the performance of this purchase order, to be confidential (“Confidential Information”). Supplier agrees that it shall not disclose Confidential Information to any other person or entity, or use Confidential Information for any purpose other than for providing the Goods under this purchase order, without the prior written consent of the Buyer. Supplier shall use no less than a reasonable standard of care to prevent unauthorized use, distribution or publication of Confidential Information.
    20. ASSIGNMENT. Supplier shall not assign, transfer, or subcontract any of its rights or obligations under this purchase order without the prior written consent of Buyer. In no event shall Buyer’s written consent be construed as discharging or releasing Supplier from the performance of its obligations hereunder. Supplier shall remain jointly and severally liable with any assignee of its rights and/or obligations.
    21. GOVERNING LAW. The formation, interpretation and performance of this purchase order shall be governed by the laws of the state, province, or territory of the Buyer. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply.
    22. CANCELLATION. Buyer may terminate all or any part of this purchase order upon the occurrence of any of the following: (1) Supplier becomes insolvent, fails to pay its bills as due, or makes an assignment for the benefit of creditors; and/or (2) Supplier fails to perform or violates any of the provisions of this purchase order. Buyer may suspend or terminate all or any part of this purchase order at any time for its sole convenience by written notice to Supplier. Termination shall be effective upon the earlier of actual receipt by Supplier of the notice or 48 hours after postmarked.
    23. TAXES. Supplier shall be responsible for the payment of any and all taxes that may be imposed upon it as a result of providing the Goods hereunder.
    24. AUDIT. Buyer reserves the right to audit and to examine any cost, payment, settlement or supporting documentation relating to any purchase order. Supplier agrees to cooperate with any such audit.
    25. VALIDITY. The invalidity, in whole or in part of any terms or conditions of this purchase order shall not affect the validity of any other terms or conditions.
    26. SURVIVAL. The obligations imposed on Supplier pursuant to this purchase order, including without limitation the following articles: Warranty, Indemnity, Confidentiality and this Survival provision, shall survive completion of the activities contemplated under this purchase order.
    27. REMEDIES. The remedies reserved in this purchase order are cumulative and in addition to any other remedies in law or equity which may be available to Buyer. The election of one or more remedies shall not bar the use of other remedies unless the circumstances make the remedies incompatible.
    28. WAIVER. Buyer’s failure to insist on performance of any of the terms and conditions herein, or to exercise any right or privilege, or Buyer’s waiver of any breach hereunder, shall not thereafter waive any other terms, conditions or privileges, whether of the same or similar type.
    29. LIMITATIONS. BUYER’S TOTAL LIABILITY TO SUPPLIER IS LIMITED TO THE TOTAL PURCHASE ORDER AMOUNT AND SUPPLIER EXPRESSLY WAIVES ITS RIGHT TO RECOVER ANY SPECIAL, INCIDENTAL, DIRECT, CONSEQUENTIAL OR PENAL DAMAGES FROM BUYER IN CONNECTION WITH THE BREACH OF THIS PURCHASE ORDER. NOTHING IN THIS PURCHASE ORDER SHALL EXCLUDE OR LIMIT (A) SUPPLIER’S LIABILITY UNDER SECTIONS 11,17,18, OR 19, OR (B) SUPPLIER’S LIABILITY FOR FRAUD, PERSONAL INJURY, OR DEATH CAUSED BY ITS NEGLIGENCE OR WILFUL MISCONDUCT.