Rev 2.1 (April 2020)
|These terms and conditions of purchase (these “Terms”) are the only terms which govern the purchase by Norbord Inc. (and/or one or more of its affiliates party to this Agreement, “Norbord”) of the goods (“Goods”) and/or services (“Services”) set out in the accompanying purchase order (the “Purchase Order”) from the vendor named in the Purchase Order (“Vendor”). The Purchase Order (including any specifications, drawings, special instructions or any other additional information contained or referenced therein or submitted therewith), together with these Terms (collectively, the “Agreement”), comprise the entire agreement between the parties and supersede all prior or contemporaneous understandings, agreements, negotiations and communications, both written and oral. These Terms prevail over any of Vendor’s general terms and conditions of sale regardless of whether or when Vendor has submitted such terms. Acknowledgment of the Purchase Order, and/or fulfillment of any portion of the Purchase Order, constitute acceptance of these Terms.|
Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods and Services covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
|2.||DELIVERY OF GOODS AND PERFORMANCE OF SERVICES|
|Vendor shall deliver the Goods in the quantities and on the date(s) specified in the Purchase Order or as otherwise agreed in writing by the parties (the “Delivery Date”). If no delivery date is specified, Vendor shall provide a delivery date in its acknowledgment of the Purchase Order and that delivery date, if and when accepted by Norbord in writing, shall become the Delivery Date. Vendor shall deliver all Goods to the “Ship To” address, or other specified delivery location, as specified in the Purchase Order (the “Delivery Point”) during Norbord’s normal business hours or as otherwise instructed by Norbord.|
All Goods shall be properly boxed, crated or otherwise suitably prepared for shipping to ensure that no damage will be caused during transportation, handling and storage. If there are risks related to the handling and storage of Goods, those risks must be clearly indicated on the boxes or crates or other packaging; any damaged Goods shall, at Vendor’s option, be returned or destroyed at Vendor’s cost and any amounts due and owing for such damaged Goods shall be deducted by Norbord from any amounts owing to Vendor hereunder.
Vendor shall provide the Services to Norbord in accordance with the schedule and other terms and conditions set forth in this Agreement.
Vendor acknowledges that time is of the essence with respect to Vendor’s obligations hereunder (including all performance dates, timetables, project milestones and other requirements in this Agreement).
|The price of Goods and Services is the price stated in the Purchase Order (the “Price”). If no price is included in the Purchase Order, the Price shall be the lower of (i) the price set out in Vendor’s published price list in force as of the date of the Purchase Order, or (ii) the price otherwise agreed to by the parties in writing. Unless otherwise specified in the Purchase Order, the Price: (i) includes all packaging; and (ii) excludes all applicable taxes. No increase in the Price is effective, whether due to increased material, labour or transportation costs or otherwise, without the prior written consent of Norbord.|
|Norbord shall deduct withholding taxes of any nature imposed by any governmental authority. If Norbord is required by law to make any such deduction or to withhold from any sum payable to Vendor by Norbord, Norbord shall remit the total of such deduction or withheld amount to the appropriate governmental authority and furnish Vendor with tax receipts, certificates or other documentation evidencing the payments of such amounts as required by the appropriate governmental authority, unless Vendor provides to Norbord the appropriate documentation required by applicable law or regulation (or customarily used) to qualify for, or provide Norbord with evidence of eligibility for, either a reduction in the rate of withholding, or an exemption from such deduction or withholding, as may be available under applicable law, any treaty or any convention. To the extent that amounts are so properly deducted or withheld by Norbord, such deducted or withheld amounts shall be treated for all purposes of the Agreement as having been paid by Norbord to the Vendor, provided that such withheld amounts are remitted by Norbord to the appropriate governmental authority.|
|Delivery shall be made DDP Norbord site (Incoterms latest revision), unless otherwise specified in the Purchase Order or otherwise agreed to by the parties in writing, provided that Vendor shall invoice Norbord for all shipping costs, insurance costs and customs duties and fees at cost. The Purchase Order number must appear on all shipping documents, shipping labels, bills of lading, air waybills, invoices, correspondence and any other documents pertaining to the Purchase Order.|
|5.||TITLE AND RISK OF LOSS|
|Title and risk of loss passes to Norbord upon delivery of the Goods at the Delivery Point. Vendor bears all risk of loss or damage to the Goods until delivery of the Goods to the Delivery Point.|
|6.||INSPECTION AND REJECTION OF NON-CONFORMING GOODS|
|Norbord may reject all or any portion of the Goods within seven (7) days of the completion of delivery if it determines, after inspection of all or a sample of the Goods, that the Goods are non-conforming or defective. If Norbord rejects any portion of the Goods then it has the right, effective upon written notice to Vendor, to:|
(a) accept the Goods at a reasonably reduced price agreed upon by the parties in writing;
(b) require replacement of the rejected Goods; or
(c) have any amounts due and owing for the rejected Goods deducted from any amounts owing from Norbord to Vendor hereunder. If Norbord requires replacement of the Goods, Vendor shall, at its expense, promptly replace the non-conforming or defective Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the non-conforming or defective Goods and the delivery of replacement Goods. If Vendor fails to timely deliver replacement Goods, Norbord may (i) replace them with goods from a third party and, as the case may be, deduct the cost thereof from any amounts owing to Vendor or add the cost thereof to any amounts owing by Vendor, and (ii) terminate this Agreement.
|Vendor shall issue an invoice to Norbord on or any time after the completion of delivery and only in accordance with these Terms. Norbord shall pay all properly invoiced amounts due to Vendor within the timelines provided for in this Agreement or as otherwise agreed to by the parties in writing, except for any amounts disputed by Norbord in good faith. In the event of a dispute, the parties shall seek to resolve it expeditiously and in good faith and Vendor shall continue performing its obligations under this Agreement notwithstanding any such dispute. All payments hereunder shall be in the currency specified in the Purchase Order. Without prejudice to any other right or remedy it may have, Norbord reserves the right to set-off at any time any amount owing to it by Vendor against any amount payable by Norbord to Vendor under this Agreement.|
|Vendor shall:(a) at all times during the term of this Agreement, maintain all necessary licenses and consents and comply with all relevant laws in the performance of its obligations hereunder(b) comply with all rules, regulations and policies of Norbord made available to Vendor and, without limiting the generality of the foregoing, ensure that all individuals for which Vendor is at law responsible comply, at all relevant times, with all applicable Norbord site rules (whether posted or otherwise made available to Vendor) when attending at a Norbord site in connection with this Agreement;(c) facilitate access by authorized representatives of Norbord to the facilities of Vendor and its subcontractors during manufacture for the purposes of inspecting any Goods (or parts or components of Goods) and obtaining information on the progress of any work being performed hereunder; and(d) during the term of this Agreement and for a period of three (3) years thereafter, maintain copies of all financial and related records pertaining to this Agreement, including, without limitation, accounting records, subcontract files, purchase orders, paid vouchers, invoices for reimbursement, work estimates and bank statements. At any time during the term of this Agreement and for three (3) years thereafter, Norbord or its authorized representatives shall have the right, upon not less than five (5) days prior notice and during Vendor’s normal business hours, to audit only those financial and related records necessary to ensure Vendor’s compliance with this Agreement and applicable laws.|
|Norbord may, at any time, by written instructions and/or drawings issued to Vendor (each a “Change Order”), order changes to the Goods or Services. Vendor shall, within two (2) business days of receipt of a Change Order, submit to Norbord a firm cost proposal for the Change Order. If Norbord accepts such cost proposal, Vendor shall proceed with the changed Goods or Services subject to the cost proposal and the terms and conditions of this Agreement.|
Under no circumstances shall Vendor, without the prior written authorization of Norbord, substitute any other goods (including components or materials making up the Goods) or services for those ordered under the Purchase Order.
|10.||CONDITIONS AND WARRANTIES|
|Vendor covenants and warrants to Norbord that, for the greater of (i) ninety (90) days from the date of completion of delivery, or (ii) such other time period set out in this Agreement, all Goods will:|
(a) conform to the drawings, the specifications or the samples (if applicable), or to any other description furnished or approved by Norbord;
(b) be in good condition and fit for their intended use, merchantable and free of material or manufacturing defects or defects in title;
(c) be made of new materials unless otherwise specified in this Agreement;
(d) be free and clear of all liens, security interests or other encumbrances; and
(e) not infringe or misappropriate any third party’s patent or other intellectual property rights.Vendor shall use all reasonable efforts to secure from any third party manufacturer all available warranties and, to the extent permissible and at no cost to Norbord, pass through or assign such warranties to Norbord.This warranty does not limit in any way any other warranties stipulated in these documents or implied by law. The vendor shall repair, replace or re-work at its sole cost and expense (including shipping costs), any Goods that have become defective under normal and proper conditions of use during the warranty period.
|All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trade-marks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to any custom Goods and work product that are delivered to Norbord under this Agreement (collectively, the “Deliverables”) shall be owned exclusively by Norbord. Vendor hereby irrevocably assigns, and shall cause its employees and permitted subcontractors (collectively, “Vendor Personnel”) to irrevocably assign to Norbord, in each case without additional consideration, all right, title and interest throughout the world in and to the Deliverables, including all Intellectual Property Rights therein. Vendor shall cause Vendor Personnel to irrevocably waive, to the extent permitted by applicable law, any and all claims such Vendor Personnel may now or hereafter have in any jurisdiction to so-called “moral rights” with respect to the Deliverables.|
|Vendor shall defend, indemnify and hold harmless Norbord, its affiliates and its and their respective directors, officers, shareholders and employees (collectively, “Norbord Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable legal fees and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Norbord Losses”), arising out of or occurring in connection with the Vendor’s performance of its obligations under this Agreement.Norbord shall defend, indemnify and hold harmless Vendor, its affiliates and its and their respective directors, officers, shareholders and employees against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable legal fees and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, arising out of or occurring in connection with Norbord’s negligence or wilful misconduct in the performance of its obligations under this Agreement.|
|13.||INTELLECTUAL PROPERTY INDEMNIFICATION|
|Vendor shall, at its expense, defend, indemnify and hold harmless Norbord and any Norbord Indemnitee against any and all Norbord Losses arising out of or in connection with any claim that the Goods, Services or Deliverables, or Norbord’s or any Norbord Indemnitee’s receipt, use or possession thereof, infringes or misappropriates the Intellectual Property Rights of any third party.|
|During the term of this Agreement, Vendor shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than CAD$5,000,000 with financially sound and reputable insurers.|
|Norbord may, at any time and for any reason, terminate this Agreement (or any order hereunder in full or in part), by notifying Vendor in writing. Upon receipt of this notice, Vendor shall, unless the notice states otherwise, immediately cease work, cancel orders for material, equipment and supplies, and undertake all reasonable efforts required to cancel any order or contract. Vendor shall, consequently, only finish that work necessary to preserve and protect the work that has already been undertaken. In the event of cancellation, it is agreed that Vendor’s sole compensation shall be for reasonable direct costs incurred up to the date of cancellation and that Norbord may retain or obtain (i) any Good (or component thereof) that is in the process of being completed for Norbord hereunder, or (ii) any partially completed deliverable of any Service provided hereunder. In the event that Norbord terminates this Agreement (or any order hereunder in full or in part) due to a material breach of this Agreement by Vendor, then Norbord may contract a third party to finish any partially completed Goods and/or Services and, as the case may be, deduct the cost thereof from any amounts owing to Vendor or add the cost thereof to any amounts owing by Vendor.|
|No waiver by Norbord of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Norbord. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.|
|All non-public information of Norbord, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, that is disclosed by Norbord to Vendor, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and that is marked, designated or otherwise identified as “confidential” (or is of such a nature that a reasonable person receiving such information would deem it to be confidential), in connection with this Agreement is confidential and may not be disclosed except in accordance with this Agreement. Upon Norbord’s request, Vendor shall promptly return all documents and other materials received from Norbord. Norbord shall be entitled to injunctive relief for any violation of this Section.|
|Neither party shall be liable to the other for any delay or failure in performing its obligations under this Agreement to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party’s fault or negligence, and which by its nature could not reasonably have been foreseen by such party or, if it could reasonably have been foreseen, was unavoidable (“Force Majeure Event”). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, hostilities, terrorist acts, riots, embargoes or industrial disturbances. Lock-outs, strikes, Vendor’s economic hardship or changes in market conditions are not considered Force Majeure Events. Vendor shall, at no additional cost to Norbord, use all diligent efforts to end the failure or delay of its performance, to ensure that the effects of any Force Majeure Event are minimized, and to resume performance under this Agreement.|
|Vendor shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of Norbord. No assignment or delegation shall relieve Vendor of any of its obligations hereunder. Norbord may at any time assign or transfer any or all of its rights or obligations under this Agreement to any of Norbord’s affiliates without Vendor’s consent.|
|20.||RELATIONSHIP OF THE PARTIES|
|The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Agreement.|
|21.||ANTI-BRIBERY AND CORRUPTION|
|Vendor warrants and undertakes to Norbord that:(a) it has not offered, promised, given or agreed to give and shall not during the term of this Agreement offer, promise, give or agree to give to any person any bribe on behalf of Norbord or otherwise with the object of obtaining a business advantage for Norbord or otherwise;|
(b) it will not engage in any activity or practice which would constitute an offence under any applicable Anti-bribery and corruption laws, and that it shall not cause Norbord to be in breach of any of said laws;
(c) it has and during the term of this Agreement will maintain in place its own policies and procedures to ensure compliance with any applicable Anti-bribery and corruption laws;
(d) it will ensure that any person who performs or has performed services for or on its behalf (“Associated Person”) in connection with this Agreement complies with this Section;
(e) it will not enter into any agreement with any Associated Person in connection with this Agreement, unless such agreement contains undertakings on the same terms as contained in this Section;
(f) it has and will maintain in place effective accounting procedures and internal controls necessary to record all expenditures in connection with this Agreement;
(g) from time to time during the term of this Agreement, at the reasonable request of Norbord, it will confirm in writing that it has complied with its undertakings under this Section;
(h) it will report to Norbord as soon as practicable any request or demand for any improper payments or other improper advantage of any kind received by the Vendor from Norbord or any other person in connection with the performance of this Agreement; and
(i) it will notify Norbord as soon as practicable of any breach of any of the undertakings contained in this Section of which it becomes aware.All payments to Vendor shall be made, subject to receipt by Norbord of appropriate invoices in reasonable detail, by electronic funds transfer or similar trackable payment method.Notwithstanding any other provisions of this Agreement, in the event that Norbord has at any time during the term of this Agreement reasonable cause to believe that Vendor is in breach of any of the provisions of this Section, Norbord may unilaterally suspend performance of or terminate this Agreement with immediate effect by the service of written notice on Vendor and immediately suspend or cancel any further payments.
|The Vendor covenants and warrants that neither it nor any of its subsidiaries, nor, to its knowledge, any of its affiliates and their respective directors, managers, officers, employees or agents (i) is, or will become, or is owned or controlled by, a person subject to a sanctions program administered by the United States of America, Canada, the United Nations, the Norwegian State, the European Union, the United Kingdom or any other agency or subdivision thereof (“Sanctions”); (ii) is located, organized or resident in a country or territory that is, or whose government is, the subject or target of any Sanctions, or (iii) engages or will engage in any dealings or transactions, or is or will be otherwise associated, with any such person subject to Sanctions that would result in any violation of any Sanctions or any other similar applicable law.|
|23.||GOVERNING LAW AND FORUM|
|All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein and will be subject to the exclusive jurisdiction of the courts of the Province of Ontario. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.|
|If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.|
|25.||AMENDMENT AND MODIFICATION|
|These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.|