Purchase Order Terms and Conditions (Manufacturing)
Last Updated: February 1, 2024
Transaction agreements shall comprise these Purchase Order Terms and Conditions (Manufacturing) and the applicable Customer purchase order (“PO”) and/or mutually agreed statements of work (“SOW”) (SOWs and POs may be referred to individually as an “Order Form” herein).
As used herein, “Supplier” includes Supplier and its subsidiaries and affiliates as further described in the applicable purchase order; “Customer” means Miovision Technologies Incorporated and its subsidiaries and affiliates. Supplier and Customer hereby agree as follows:
1. SERVICES & DELIVERABLES. Supplier agrees to perform the services (“Services”) and/or to provide the goods or deliverables resulting from Services (collectively referred to as “Goods”), as described in and in accordance with any one or more Customer Order Form signed by Customer and these Terms and Conditions (“Agreement”). Upon acceptance of a Customer Order Form, shipment of Goods or commencement of a Service, Supplier shall be bound by the provisions of this Agreement including, without limitation, all provisions set forth on the face of any applicable Customer Order Forms, whether Supplier acknowledges or otherwise signs this Agreement or the Customer Order Form, unless Supplier objects to such terms in writing prior to shipping Goods or commencing the Services. SOWs are documents which provide detailed information about Goods and Services that Supplier will provide to Customer, and the terms and conditions pertaining thereto. The SOW template provided by Customer from time to time shall be used by Supplier. SOWs must be mutually agreed and signed by both Supplier and Customer.
Customer’s offer to purchase may be revoked by Customer at any time prior to acceptance of the Customer purchase order by Supplier. The Agreement may not be added to, modified, superseded or otherwise altered, except by a writing signed by an authorized Customer representative. Any terms or conditions contained in any acknowledgment, invoice, or other communication of Supplier are hereby rejected. To the extent that this Agreement might be treated as an acceptance of Supplier’s prior offer, such acceptance is expressly made on condition of assent by Supplier to the terms hereof. Customer hereby reserves the right to reschedule any delivery, or to revoke or cancel any purchase order, at any time prior to any complete or partial shipment of the Goods or prior to completion of any applicable Services and Customer shall not be subject to any charges or other fees as a result of such rescheduling, revocation, or cancellation.
2. DELIVERY. Time is of the essence. Delivery of Goods shall be made pursuant to the schedule, via the carrier and to the place specified on the face of the Customer Order Form. Delivery to Customer shall be FCA (Incoterms 2020), unless otherwise stated on a PO. Customer reserves at its sole option and discretion the right to return, shipping charges collect, all Goods received more than five (5) days in advance or arrears of the delivery schedule. If no delivery schedule is specified on the Customer Order Form, the order shall be fulfilled as promptly as commercially possible. If no method of shipment is specified on the face of the Customer Order Form, Supplier shall ensure that it meets the scheduled delivery time using a reputable carrier with shipment tracking enabled.
If Supplier fails to deliver the Goods or Services according to the schedule, Customer may, at its option and at Supplier’s expense, decline to accept the Goods or Services and terminate the Order Form, or part thereof, or may demand its fair share of Supplier’s available Goods and terminate the balance of the Order Form.
Supplier shall package all items in suitable containers to permit safe transportation and handling in accordance with the requirements documented by the Customer. Each delivered container must be labelled and marked on the outside of such container to identify contents of the container without needing to open the container and all boxes and packages must contain packing sheets listing contents.
Customer’s purchase order number must appear on all shipping containers, packing sheets, delivery tickets and bills of lading. No variation of the quantity or quality of any item called for by any Purchase Order will be accepted unless agreed to in advance by Customer. If Supplier (i) delivers more Goods than ordered by Customer or (ii) if the delivery schedule or quantities of Goods differs from the PO, Customer may either: (a) issue a Purchase Order and keep the additional Goods; or (b) reject the additional Goods and return them at Supplier’s risk and expense. If applicable, Supplier shall electronically deliver all software to Customer.
Supplier shall provide Customer with an advanced shipping notice, freight tracking number, part numbers, quantity and serial numbers (if applicable) for all deliveries by Supplier to Customer.
3. RISK OF LOSS & DESTRUCTION OF GOODS. If the Goods ordered are partly or completely lost, damaged, or destroyed at any point during delivery, Customer shall have the right to require delivery of the Goods not lost, damaged, or destroyed and require delivery of substitute Goods of equal quantity and quality to the lost, damaged, or destroyed Goods within a time period acceptable to Customer. Costs for any such right or demand of the Customer in accordance with this Section 3 shall be allocated in accordance with FCA (Incoterms 2020) and the transfer or risk of Goods.
4. PAYMENT. As full consideration for the performance of the Services or delivery of the Goods as provided herein, Customer shall pay Supplier the lower of: (i) the amount agreed upon and specified on the applicable Customer purchase order, or (ii) Supplier’s quoted price on the date of shipment (for Goods), or the date Services were started (for Services). Supplier shall ensure that Supplier’s invoice correctly reflects that amount. No increase in the price is effective unless agreed to in writing by both Parties regardless of the underlying cause.
The Supplier’s pricing shall be inclusive of all: (a) packaging and labelling costs; (b) importation, exportation, logistics and transportation costs through to the delivery location; (c) insurances; (d) customs, duties, tariffs, fees, and applicable taxes; and (e) applicable sales taxes. Customer shall only be liable to pay for shipping costs, duties, customs, tariffs and government-imposed surcharges through to point of risk transfer if they are imposed on Customer (and not Supplier) by way of an applicable mandatory law that cannot be superseded by this Agreement.
Payment shall not constitute acceptance of any Goods or Services. All personal property taxes assessable upon the Goods prior to Customer’s receipt thereof shall be borne by Supplier. Supplier shall invoice Customer for all Goods delivered and all Services actually performed pursuant to a Customer purchase order.
Payments by Customer may be made by wire transfer or ACH/EFT. Payments will be made in the currency as specified on the face of Customer’s purchase order.
Each invoice submitted by Supplier must be provided to Customer within ninety (90) days of delivery of the Goods or completion of the Services and must reference the applicable purchase order, and Customer reserves the right to return all incorrect invoices and to not pay such invoices. Customer is not obligated to pay any invoices other than valid and correct invoices issued in accordance with this Agreement.
Unless otherwise specified on the face of a Customer purchase order, Customer shall pay the invoice amount within sixty (60) days after Miovision receives a valid, accurate and complete invoice from the Supplier. Customer shall be entitled at all times to set off any amount owing from Supplier to Customer as a result of any transaction at any time, against any amount payable by Customer to Supplier including, without limitation, in connection with any Customer purchase order.
5. SUPPLIER RESPONSIBLE FOR TAXES AND RECORDS. Supplier shall be solely responsible for filing the appropriate federal, state and local tax forms and for paying all applicable taxes and other charges such as shipping costs, duties, customs, tariffs and government-imposed surcharges, and any other fees due with respect to Supplier’s receipt of payment under this Agreement. Supplier agrees to provide Customer with reasonable assistance in the event of a government audit.
Notwithstanding anything else contained herein, if any withholdings are applicable, Customer: (i) shall be entitled to withhold and deduct such withholdings from any payments owing to Supplier under the Agreement; (ii) will pay, or cause to be paid, to the relevant taxation authority the amount of such withholdings in accordance with applicable law; and (iii) will pay to Supplier the amounts determined by Customer to be owing to Supplier under the Agreement net of such withholdings.
6. WARRANTIES.
6.1. Services: Supplier represents and warrants that: (a) all Services shall be completed in a professional and competent manner, with the degree of skill and care that is required by current industry standards or practices; (b) the Services shall be completed in accordance with applicable Customer specifications and statement of work (if applicable); (c) the Services shall be correct and appropriate for the purposes contemplated in this Agreement; and (d) the performance of Services under this Agreement will not conflict with, or be prohibited in any way by, any other agreement to which Supplier is bound or by any applicable law.
6.2. Goods: For the longer of twenty-four (24) months from the date of delivery of the Goods to Customer and the period provided in Supplier’s standard warranty and guaranty covering the Goods, Supplier warrants that all Goods delivered shall be free from defects in design, production, manufacture, performance and materials and the Goods shall conform to all applicable Customer specifications and requirements. Supplier shall make support services and spare parts available to Customer for a period of five (5) years from the date of shipment, or another period mutually agreed in writing by Customer and Supplier in a variation to this Agreement, at Supplier’s then current price, less applicable discounts. Additionally, Goods purchased shall be subject to: (a) all written and oral express warranties made by Supplier’s service providers, suppliers, subcontractors and agents; and (b) all warranties provided for by applicable laws. All warranties shall be construed as conditions as well as warranties and shall not be exclusive. Supplier shall furnish to Customer the Supplier’s standard warranty and guaranty applicable to the Goods. Supplier has the absolute right to make the assignments of the right, title and interest in and to the Goods contemplated in the Agreement and to grant Customer rights of use to any third-party hardware, software, and intellectual property provided hereunder.
6.3. Software. Supplier represents and warrants that any software supplied under this Agreement does not, and will not, contain any: (i) security vulnerability, virus, trojan horse, worm, backdoor, shutdown mechanism, malicious code, sniffer, bot, drop dead mechanism, or spyware, or (ii) any other software, code, or program that is likely to or is intended to: (A) have an adverse impact on the performance of, (B) disable, corrupt, or cause damage to, or (C) cause or facilitate unauthorized access to or deny authorized access to (which includes, without limitation, the software remotely transmitting any information to the Supplier or any third party), or cause to be used for any unauthorized or inappropriate purposes, any software, hardware, services, systems, or data (collectively, “Malware”). If Supplier becomes aware of the existence of any Malware in or relating to the Software, Supplier shall promptly notify Customer.
The warranty period for software is the longer of twelve (12) months from the date of delivery of the software to Customer and the period provided in Supplier’s standard warranty and guaranty covering the software. Supplier warrants that all software delivered shall conform to all applicable Customer specifications and requirements. Supplier shall make support services available to Customer for a period of two (2) years from the date of delivery of the software to Customer, or another period agreed in writing by Customer and Supplier in a variation to this Agreement, at Supplier’s then current price, less applicable discounts.
6.4. Third Party IP/Software.
Except as otherwise accepted with Customer’s prior written consent, the goods and software provided by Supplier shall not contain, and shall not be derived in any manner (in whole or in part), from any software including, without limitation, open source software, that requires:
a) the disclosure or distribution of the source code of the software, or any portion thereof, by or on behalf of Customer, or
b) that any third party proprietary software contained within the software or any Customer or other third party software be: (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making modifications or derivative works; (iii) reproduced and/or redistributed at no or minimal charge; (iv) permitted to be reverse engineered; or (v) otherwise distributed on terms that impede the ability to distribute and license such third party software as the licensor of such third party software sees fit.
Except as otherwise accepted with Customer’s prior written consent, Supplier shall:
a) notify Customer of any software of Supplier or any third party that Supplier intends to disclose to Customer or provide to Customer as part of or together with the Goods and Services including any software owned by a third party which is licensed to Supplier and/or is required for the manufacture, assembly, demonstration, marketing, sale, distribution, use, operation, maintenance and/or support of the Goods or Services, or is otherwise incorporated therewith;
b) notify Customer of any updates or changes to any software and affords Customer a reasonable opportunity to test and accept the updates or changes to the software in accordance with Section 7 hereof;
c) comply at all times with all licenses, terms and conditions pertaining to any third party software including, without limitation, open source software; and
d) ensure that Customer: (i) has all necessary rights to any third-party software provided by Supplier in accordance with Section 13; and, (ii) is under no obligation to pay Supplier or any third-party any additional amount for the third-party software except for the fees agreed to by Customer for the Goods and Services ordered by Customer under this Agreement.
6.5. Procedures. All warranties and guaranties on Goods and Services shall run to both Customer and to its resellers and customers. If Customer or one of its resellers or customers identifies a warranty problem with the Goods during the warranty period, Customer will promptly notify Supplier of such problems and will return the Goods to Supplier, at Supplier’s expense. Within ten (10) business days of receipt of the returned Goods, or another period mutually agreed in writing by Customer and Supplier in a variation to this Agreement, Supplier shall, at Customer’s option, either repair or replace such Goods, or credit Customer’s account for the purchase price. Replacement and repaired Goods shall be warranted for the remainder of the warranty period or six (6) months, whichever is longer. Refurbished units will not be accepted by Customer as replacement for the defective units. All repaired and/or replacement units shall be subject to acceptance testing by Customer in accordance with Section 7 hereof. Supplier will be responsible for all costs of shipping, handling, customs, duties and taxes incurred with respect to the return of the Goods to Supplier and the re-shipping to Customer. Notwithstanding the foregoing, the warranty for Goods does not include any services to replace or repair damage to a Good that results from accident, disaster, abuse, negligence, any modification of the Good that has not been authorized by Supplier, or any other cause that does not arise from defects in material or workmanship.
6.6. Epidemic Failure. Supplier warrants that each individual Good, exclusive of consumable materials, will not exceed: (a) a failure rate due to defects of: (i) three percent (3%) for a single failure mode measured over any thirty (30) day period, or (ii) five percent (5%) for multiple failure modes measured over any twelve (12) month period; or (b) the rates as mutually agreed by the Parties in writing in a variation to this Agreement. If Customer determines that the Goods do not conform to this quality requirement, it will notify Supplier. Supplier will then evaluate the conformance to determine the root cause to the satisfaction of Customer and work with Customer to develop a mutually agreed corrective action plan and will implement that plan to correct the defect.
Supplier will provide Customer with regular progress reports of the corrective action plan until the defect is corrected. Customer may return all Goods that may be affected by the epidemic failure for replacement at Supplier’s risk and expense. Supplier will perform all necessary rework or replacement of the defective Goods at Supplier’s sole expense including, without limitation: (a) all transportation costs to receive the Goods from Customer and its resellers and customers, and to deliver the reworked or replacement Goods to Customer and/or its resellers and customers including re-deployment and field installation costs; and (b) any refunds or other compensation to Customer and its resellers and customers. Customer may cancel, without any liability, any unfulfilled orders for Goods affected by an epidemic failure.
7. INSPECTION & ACCEPTANCE. Customer shall have thirty (30) days after receipt of Goods or Service deliverables and before payment to inspect them for conformity hereto (“Acceptance Period“). Goods and Services shall not be deemed accepted until Customer has inspected them and run adequate tests to determine that the Goods and Services conform hereto. Use of a portion of the Goods for the purpose of testing shall not constitute an acceptance of the Goods in their entirety. If Goods or Services do not wholly conform to said standards then Customer shall have the right to reject such Goods or Services by way of a notice of non-conformance. Supplier shall refund any payments made for Goods or Services that are subject to a notice of non-conformance within thirty (30) days of such notice. Non-conforming Goods will be returned to Supplier at Supplier’s risk and expense. Goods and Services will be deemed accepted if no notice of non-conformance is received by Supplier during the Acceptance Period.
8. FACILITIES, TOOLS, ETC. Unless otherwise specified in a variation to this Agreement agreed to by Supplier and Customer, all services, facilities, materials, supplies, equipment, drawings or other items necessary for the performance of the Services and the delivery of the Goods are to be provided by Supplier at no additional cost to Customer. Any facilities, materials, equipment, drawings or other items which may be furnished or otherwise made available or paid for by Customer shall remain the property of Customer and shall be returned to Customer in as good condition as when furnished or otherwise made available, except for reasonable wear.
9. INDEPENDENT CONTRACTOR. The Parties are independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship. No Party shall have authority to bind the other Party in any way or represent that it has such authority.
10. INSURANCE. Without limiting the Supplier’s liability under this Agreement, Supplier shall, at its own expense, procure and maintain in good standing, for the term of this Agreement and for one (1) year thereafter, the following minimum insurance coverages with financially sound and reputable insurers to protect Customer from all claims from third parties arising out of the acts or omissions of Supplier, Supplier’s affiliates, or any of their respective employees, independent contractors, subcontractors, representatives or agents:
a) Workers’ Compensation insurance as required by all applicable laws and regulations, and Employers’ Liability Insurance for a minimum limit of two million United States of America dollars (USD 2,000,000) per occurrence or as may otherwise be required by the laws of the country, province/state or jurisdiction where the Supplier performs its obligations under this Agreement;
b) Commercial General Liability insurance with a minimum limit of two million United States of America dollars (USD 2,000,000) per occurrence and in the annual aggregate, including coverage for property damage, broad form property damage, bodily injury (including wrongful death), personal injury, independent contractors, non-owned or hired automobiles, products and completed operations hazards, contractual liability for this Agreement, which policy shall include Customer as an additional insured with respect to the operations of Supplier;
c) Where Company-owned vehicles are used in the performance of the services, motor vehicle/automobile insurance with combined single limit of two million United States of America dollars (USD 2,000,000) per occurrence for injuries, including accidental death and property damage; and
d) Professional Liability insurance with a minimum limit of two million United States of America dollars (USD 2,000,000). When such Professional Liability insurance is renewed or replaced, Supplier shall make commercially reasonable efforts to cause the policy retroactive date to coincide with, or precede, the commencement date of the Supplier’s performance of its obligations under this Agreement.
The limits required herein may be made up of any combination of Primary, Umbrella or Excess insurance layers. Upon request by Customer, Supplier shall promptly furnish Customer with a certificate (or certificates) of insurance confirming the requisite insurance is in place and all related premiums have been paid.
The certificate of insurance shall name Customer as an additional insured. Supplier shall provide Customer with thirty (30) days’ advance written notice in the event of a cancellation or material change in Supplier’s insurance policy. Except where prohibited by law, Supplier shall require its insurer to waive all rights of subrogation against Customer’s insurers and Customer.
11. INDEMNITY. Supplier shall indemnify, hold harmless and, at Customer’s request, defend Customer and the divisions, officers, directors, customers, agents and employees of Customer, and Customer’s resellers and customers, from and against all claims, liabilities, damages, losses, penalties, fines, expenses or other costs of any nature whatsoever (including, but not limited to, reasonable expenses, attorney’s fees, court costs, investigations, litigation and settlement of any such claims) arising out of or in any way connected with the Goods or Services provided under this Agreement including, without limitation, any claim based on:
a) death or bodily injury to any person;
b) loss, destruction or damage to any property;
c) contamination of the environment and any associated clean-up costs;
d) negligence, omissions or wilful misconduct of Supplier;
e) Supplier failing to satisfy the guidelines of any applicable tax authority;
f) an allegation that the Goods or Services, the results of such Services, or any other products or processes provided under this Agreement, or the access to or use of any third-party software provided by Supplier to Customer, infringes a patent, copyright, trademark, trade secret or other proprietary right of a third party, whether such are provided alone or in combination with other products, software or processes;
g) any amounts claimed by third party relating to the access or use of any third party software provided by Supplier to Customer;
h) any failure by Supplier to comply with all applicable laws and regulations, or
i) any failure by Supplier to comply with Sections 29-33.
Supplier shall not settle any such suit or claim without Customer’s prior written approval (not to be unreasonably delayed or withheld by Customer). Supplier agrees to pay or reimburse all costs that may be incurred by Customer in enforcing this indemnity (including, but not limited to, reasonable expenses, attorney’s fees, court costs, investigations, litigation and settlement of any such claims). Should Customer’s access to or use, or the use by its resellers, subcontractors, agents or customers, of any Goods or Services acquired from Supplier be enjoined, be threatened by injunction, or be the subject of any legal proceeding, Supplier shall, at is sole cost and expense, either: (a) provide to Customer substitute fully equivalent non-infringing Goods or Services that are acceptable to Customer; (b) modify the Goods or Services so that they no longer infringe but remain fully equivalent in functionality and are acceptable to Customer; (c) obtain for Customer, and its resellers, subcontractors, agents and customers, the right to continue to access and use the Goods or Services; or (d) if none of the foregoing is possible, refund all amounts paid for the infringing Goods or Services.
12. OWNERSHIP OF WORK PRODUCT.
12.1 Pre-Existing Rights. “Supplier Property” means the know-how, techniques, technologies, methods, concepts, inventions, software and programs owned by Supplier prior to commencing the Services, or developed or created outside of this Agreement by Supplier on its own and at its own expense, or duly licensed by Supplier from a third-party, and used or supplied by Supplier in the course of providing the Services or Goods, provided the foregoing do not contain any Customer Confidential Information and do not breach any confidential obligation under this Agreement. Except as explicitly set out in this Agreement, Customer will not have rights to Supplier Property. Supplier must, prior to accepting a Purchase Order or statement of work, identify to Customer in writing, all licenses or sub-licenses of third-party hardware, software, and intellectual property and all additional materials and information that Customer will require to effectively utilize the Goods and Services. Supplier will not do anything that might change these requirements without Customer’s prior written authorization. Supplier shall cooperate with Customer and perform such actions as reasonably requested by Customer for Customer to obtain any licenses or sub-licenses necessary from third-parties to fully and effectively utilize the Goods and Services.
12.2 License to Supplier Property. Supplier hereby grants, assigns and conveys to Customer a non-exclusive, world-wide, royalty-free, perpetual, irrevocable right and license to use, make, sell, import, install, reproduce or have reproduced, demonstrate, display, perform, import, export, transmit, distribute, modify, and make derivative works, of any Supplier’s Property (or any part thereof, and together with any intellectual property rights embodied therein) delivered as part of or together with the Services or Goods, or as otherwise provided under this Agreement, with rights to sublicense and have sublicensed the licenses granted to Customer hereunder to third parties, in connection with or for the purpose of: (i) exploiting Customer’s products or services and any Services and Goods provided hereunder including, without limitation, use, distribution, sale, repair, or refurbishment of Customer’s products or services, (ii) the operation of Customer’s business, (iii) Customer availing itself of the Services, Goods or the benefits provided under this Agreement, (iv) branding or re-branding of the Services and Goods; or (v) performing any obligations Customer may have in connection with this Agreement, Customer’s products or services, or in connection with the Services or Goods.
12.3 Work Product. For purposes of this Agreement, “Work Product” shall include, without limitation, all designs, discoveries, creations, works, devices, ideas, algorithms, formulae, processes, masks, models, work in progress, Service deliverables, inventions, products, computer programs, procedures, improvements, developments, drawings, notes, documents, information and materials made, conceived or developed by Supplier alone or with others which result from or relate to the Services performed hereunder (including without limitation, where applicable, all reports, scripts, models, specifications, source code, designs, creations, artwork, text, graphics, photographs, pictures, and music). Any item(s) of software delivered under this Agreement shall be deemed to include, in both source code and object code forms, the final version and all preliminary versions of the software and all routines and subroutines, as well as all program material, flowcharts, models, notes, outlines, work papers, descriptions and other documents created or developed in connection therewith, the resulting screen formats and other visual effects of the software.
12.4 Ownership of Work Product. All Work Product shall at all times be and remain the sole and exclusive property of Customer. Supplier on behalf of itself and Supplier’s Assistants hereby irrevocably assigns and transfers to Customer all of its worldwide right, title and interest in and to the Work Product including all associated intellectual property rights. Supplier represents and warrants that all Work Product is original and shall not infringe the intellectual property rights or other proprietary rights of any third-party.
Customer will have the sole right to determine the treatment of any Work Product including, without limitation, the right to keep it as trade secret, execute and file patent applications on it, to use and disclose it without prior patent application, to file registrations for copyright or trademark in its own name or to follow any other procedure that Customer deems appropriate. Supplier agrees to: (a) disclose promptly in writing to Customer all Work Product in its possession; (b) assist Customer in every reasonable way, at Customer’s expense, to secure, perfect, register, apply for, maintain, and defend for Customer’s benefit all copyrights, patent rights, mask work rights, trade secret rights, and all other proprietary rights or statutory protections in and to the Work Product in Customer’s name as it deems appropriate; and (c) otherwise treat all Work Product as Customer Confidential Information as described above.
Supplier irrevocably agrees that Supplier and Supplier’s employees, suppliers, agents or subcontractors (“Supplier’s Assistants”) shall not to assert against Customer or its direct or indirect resellers, customers, subcontractors, agents, assignees or licensees any claim of any intellectual property rights of Supplier or Supplier’s Assistants affecting the Work Product.
Except as expressly provided in this Section 12 (Ownership of Work Product), Supplier and Supplier’s Assistants hereby assign to Customer all intellectual property or intellectual property rights that Supplier and Supplier’s Assistants have in any Work Product (including all “moral rights”, and where such assignment of moral rights is prohibited by applicable law, Supplier hereby waives and covenants, and will ensure that all personnel waive and covenant, not to assert such rights it may have in the Work Product), such assignment shall be deemed to occur automatically whenever such automatic assignment is legally valid and binding and in all other cases Supplier shall ensure that such assignment occurs in a valid and legally binding manner at the earliest time possible.
13. CONFIDENTIALITY. Supplier may acquire knowledge of Customer Confidential Information (as defined below) in connection with its performance hereunder and agrees to keep such Customer Confidential Information in confidence during and following termination or expiration of this Agreement. “Customer Confidential Information” includes, but is not limited to:
a) the provisions of this Agreement;
b) information and data that is either specifically identified as confidential prior to or at the time of disclosure or can reasonably be considered confidential, whether written or oral, in any form;
c) information and data of a confidential, non-public and/or proprietary nature of a Party or its affiliates (in whatever medium and however recorded, preserved or disclosed);
d) information and data relating to research, development, evaluation, testing or commercial exploitation of products, services or technology;
e) pre-release versions of products or functionality that is embedded in, or related to, a product, technology or service;
f) methods of manufacture, business operations, methods of operating, processes and procedures, trade secrets, business plans, customer information and affairs;
g) information and data about resellers, subcontractors, agents, vendors, finances, personnel, personal data, Work Product;
h) other materials, information or data considered proprietary by Customer relating to the current or anticipated business or affairs of Customer which is disclosed directly or indirectly to Supplier;
i) any proprietary or confidential information or data of a third party disclosed to Supplier in the course of providing Services or Goods to Customer; and
j) financial, production, scientific and technical data and information, formulae, strategies, studies, reports and evaluations, any and all intellectual property.
Customer Confidential Information does not include any information: (i) which Supplier lawfully knew without restriction on disclosure before Customer disclosed it to Supplier, (ii) which is now or becomes publicly known through no wrongful act or failure to act of Supplier, (iii) which Supplier developed independently without use of the Customer Confidential Information, as evidenced by appropriate documentation, or (iv) which is hereafter lawfully furnished to Supplier by a third-party as a matter of right and without restriction on disclosure. In addition, Supplier may disclose Confidential Information which is required to be disclosed pursuant to a requirement of a government agency or law so long as Supplier provides prompt notice to Customer of such requirement prior to disclosure.
Supplier agrees that Supplier shall: (a) not copy, alter, or directly or indirectly disclose any Customer Confidential Information; (b) limit its internal distribution of Customer Confidential Information strictly to Supplier’s Assistants who have a genuine need to know it in order for Supplier to perform its obligations under this Agreement; (c) take steps to ensure that the dissemination is so limited; and (d) ensure that each of Supplier’s Assistants executes a nondisclosure agreement with provisions substantially similar to those set forth herein to protect the Customer Confidential Information. Supplier must use at least the degree of care and means that it uses to protect its own information of like kind, but in any event not less than reasonable care to prevent the unauthorized use of Customer’s Confidential Information.
Supplier further agrees that Supplier and Supplier’s Assistants shall use the Customer Confidential Information solely for the purpose of performing the Supplier’s obligations under this Agreement and that Supplier and Supplier’s Assistants shall not use such Customer Confidential Information for their own benefit or for the benefit of any third-party. The mingling of the Customer Confidential Information with information of Supplier or Supplier’s Assistants shall not affect the confidential nature or ownership of the same as stated in this Agreement. Supplier agrees not to design or manufacture any products or perform any services for third-parties which incorporate Customer Confidential Information. All Customer Confidential Information is and shall remain the property of Customer. Upon Customer’s written request or the termination of this Agreement, Supplier shall return, transfer or assign to Customer all Customer Confidential Information, including all Work Product and all copies thereof.
If Supplier and Customer have executed a written Customer-prepared non-disclosure agreement (“NDA”), then the terms of the NDA shall apply to this Agreement and are hereby incorporated by reference, except that: (i) notwithstanding the Disclosure Period set out in the NDA, such Disclosure Period shall be extended automatically to the extent necessary to make it coextensive with the term of the Agreement, provided that this extension applies solely in relation to Confidential Information (as defined in the NDA) disclosed under the Agreement; (ii) the Confidential Information disclosed under the Agreement may be used or reproduced solely to the extent necessary to further and fulfil the purposes of the Agreement (which will be deemed to be included in the definition of “Purpose” under the NDA); and (iii) the Representatives of the Supplier shall be deemed to include the Supplier’s Assistants. In the event of any conflict or discrepancy between the terms of the Agreement and the NDA, the terms of the Agreement shall prevail.
14. NO RIGHT TO PUBLICITY. Neither party may disclose, advertise or make any other public statements regarding this Agreement and its subject matter without the prior written consent of the other party.
15. NON-SOLICITATION OF EMPLOYEES. Except where such a restriction is prohibited by applicable law, during the term of this Agreement and for a period of two (2) years immediately after the termination or expiration of this Agreement, Supplier agrees that Supplier and Supplier’s Assistants shall not solicit or induce any employee or independent contractor to terminate or breach an employment, contractual or other relationship with Customer.
16. FALSE OR MISLEADING INFORMATION. During the term of this Agreement, and for a period of two (2) years immediately after, Supplier agrees that Supplier and Supplier’s Assistants shall not make any false, misleading or disparaging representations or statements regarding Customer or Customer’s resellers, customers, products or services including, without limitation, communicating any specifications, features, warranties, or disclaimers that are not consistent with Customer’s printed publicly available product and services documentation.
17. TERMINATION.
17.1 For Cause. Customer may terminate this Agreement upon written notice to Supplier if Supplier fails to perform or otherwise breaches this Agreement, files a petition in bankruptcy, becomes insolvent, or dissolves. In the event of such termination, Customer shall pay Supplier for the portion of the Services satisfactorily performed and those conforming Goods delivered to Customer up until the date of termination, less any offsets (including, without limitation, any additional costs incurred, or to be incurred, by Customer in completing the Services or obtaining substitute Goods).
17.2 Without Cause. Customer may terminate this Agreement, or any Services, for any other reason including, without limitation, for its convenience, upon thirty (30) days written notice to Supplier. Supplier shall cease to perform Services and/or provide Goods under this Agreement on the date of termination specified in such notice. In the event of such termination, Customer shall be liable to Supplier only for those Services satisfactorily performed and those conforming Goods delivered to Customer through the date of termination, less appropriate offsets.
17.3 By Supplier. Supplier may terminate this Agreement upon written notice to Customer if Customer fails to pay Supplier within sixty (60) days after Supplier notifies Customer in writing that payment is past due and Supplier has not received payment at the expiry of the sixty (60) day period.
17.4 Events Upon Termination. Upon the expiration or termination of this Agreement for any reason, each party will be released from all obligations to the other arising after the date of termination, except for those which by their terms survive such termination. Upon termination of this Agreement for any reason other than default by Customer the Supplier shall, at the sole election of the Customer, continue to supply any Services or Goods under any outstanding and binding Order Forms. For clarity, Termination or expiration of this Agreement shall not cause any Work Product, or Good or Service (including, without limitation, any Supplier or third-party software) provided by Supplier prior to such termination or expiration to cease operating or functioning and Supplier is prohibited from disabling or attempting to disable any Work Product, or Good or Service from operating or functioning.
18. REMEDIES. If Supplier breaches this Agreement, Customer shall have all remedies available under this Agreement, by law and at equity, such remedies being cumulative. Supplier’s breach of any of the promises contained in this Agreement will result in irreparable and continuing damage to Customer for which there will be no adequate remedy at law and, in the event of such breach, Customer will be entitled to seek injunctive relief, or a decree of specific performance. For the purchase of Goods, Supplier’s sole remedy in the event of breach of this Agreement by Customer shall be the right to recover damages in the amount equal to the difference between market price at the time of breach and the purchase price specified in the Agreement. No alternate method of measuring damages shall apply to transactions for the purchase of Goods.
19. LIMITATION OF LIABILITY. EXCEPT FOR CLAIMS ARISING FROM GROSS NEGLIGENCE, WILLFUL MISCONDUCT, BREACH OF CONFIDENTIALITY OBLIGATIONS, OR BREACH OF ANY PROVISIONS HEREOF RELATED TO INTELLECTUAL PROPERTY, THE PARTIES SHALL ONLY BE LIABLE TO EACH OTHER FOR DIRECT DAMAGES AND IN NO EVENT WILL THE TOTAL COLLECTIVE LIABILITY OF EITHER PARTY EXCEED THE LOWER OF: (A) VALUE OF THE GOODS OR SERVICES GIVING RISE TO THE CLAIM; OR (B) THE AMOUNT PAID BY CUSTOMER TO SUPPLIER IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FURTHER, REGARDLESS OF LEGAL THEORY, IN NO EVENT SHALL THE PARTIES BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
20. FORCE MAJEURE. Neither Party shall be deemed to be in default of this Agreement for any failure in performance (other than payment obligations) resulting from acts or events beyond its reasonable control including, without limitation, acts of God, civil or military authorities; fire; flood; earthquake; strikes, labour shortage, or other labor difficulties; health pandemic; epidemic, quarantine restrictions; governmental action; border closures; change in laws; terrorism; riot; insurgence; war; cellular carrier or network outage, downtime or delays; cloud service provider outage, downtime or delays; or delays in transportation (each a “Force Majeure Event”). Each Party will use its best efforts to anticipate such failures and to devise means to eliminate or minimize them; however, if such failure continues for more than sixty (90) days, either Party may terminate the Agreement for cause immediately upon notice and in accordance with Section 17 (Termination).
21. SEVERABILITY. The provisions of this Agreement shall be deemed severable. If any provision of this Agreement is held by any court of competent jurisdiction to be illegal or unenforceable, such provision shall either be modified to the extent necessary to render it enforceable or shall be severed from this Agreement and the remaining provisions of this Agreement shall remain in full force and effect.
22. ASSIGNMENT. Supplier may not assign or subcontract all or any substantial portion of this Agreement or any of its rights or obligations under this Agreement, without the prior written consent of Customer. Any assignment or transfer without such written consent shall be null and void. Customer may assign this Agreement and subcontract or delegate its obligations hereunder to any third party without the consent of, or notice to, the Supplier. This Agreement (including, without limitation, all warranties) shall inure for the benefit of, and be binding upon, the successors and assigns of Customer without restriction.
23. WAIVER. The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver of such party’s rights or deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement.
24. NOTICES. Any notice, request, demand, waiver, consent, approval or other communication required to be given pursuant to this Agreement (each, a “Notice”) shall be in writing and shall be deemed given: (1) upon delivery, if by hand or courier; (2) after three (3) business days, if sent by mail or courier domestically; (3) after ten (10) business days, if sent by mail or courier internationally; or (4) upon transmission, if sent by facsimile or other electronic transmission, except that if notice is received after 5:00 p.m. on a business day at the place of receipt, it shall be effective as of the following business day. Customer may issue Notices to Supplier at an address provided by Supplier which may include an address stated on a Supplier quotation or invoice, or an email address provided to Customer by Supplier. All Notices are to be given or made to Customer at the address appearing below, or to such other address as Customer may designate by a Notice given in accordance with these provisions:
To Customer, at:
Miovision Technologies Incorporated, 137 Glasgow St., Suite 110 Kitchener, Ontario N2G 4X8
Attention: Miovision Supply Chain
E-mail: supplychain@miovision.com
With a copy to:
Miovision Technologies Incorporated, 137 Glasgow St., Suite 110 Kitchener, Ontario N2G 4X8
Attention: Legal Team
E-mail: legal@miovision.com
25. NONEXCLUSIVE AGREEMENT. This is not an exclusive agreement. Customer is free to engage others to perform services or provide goods the same as or similar to those that Customer may order from the Supplier. Supplier is free to, and is encouraged to, advertise, offer and provide Supplier’s Services and/or Goods to others; provided however, that Supplier does not breach this Agreement or use any of Customer’s confidential information, Customer’s intellectual property or any other Customer property.
26. SURVIVAL OF OBLIGATIONS. Any obligations and duties which by their nature extend beyond the expiration or termination of this Agreement shall survive such expiration or termination including, without limitation, Supplier’s obligations, warranties and acknowledgements under Sections 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17.4, 18, 19, 21, 23, 24, 26, 27, and 29-33 inclusive. Notwithstanding anything to the contrary, any applicable statute of limitations shall run from the date of Customer’s discovery of a non-compliance with this Agreement.
27. GOVERNING LAW; DISPUTE RESOLUTION.
27.1 Governing Law & Venue. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, Canada, excluding the United Nations Convention on Contracts for the International Sale of Goods. Each Party irrevocably consents and submits to the exclusive jurisdiction of the courts of the Province of Ontario, Canada (and all courts competent to hear appeals therefrom) and waives any objections based on the grounds of venue, forum non-conveniens or any similar grounds, and irrevocably consents to service of process by mail or in any other manner permitted by applicable law. In addition, the parties waive any right to a trial by jury with respect to any lawsuit or judicial proceeding arising or relating to this Agreement.
27.2 Dispute Resolution. All disputes and questions whatsoever which arise either during the subsistence of this Agreement or afterwards between the Parties of this Agreement or the construction or application thereof or as to any other matter in any way relating to this Agreement, for which a Party does not consider has been satisfactorily resolved through the regularly or specially scheduled meetings of the Parties, shall be submitted first to the upper management level of the Parties. If the upper management of the Parties are unable to resolve the dispute or question within thirty (30) days, the Parties may agree to proceed to arbitration. Notwithstanding the foregoing, a Party shall retain the right to immediately seek injunctive or equitable relief. Arbitration shall take place in Toronto, Ontario, Canada and be conducted in the English language. The arbitration shall be held in accordance with the Rules of Arbitration of the International Chamber of Commerce (“Arbitration Centre”) then in force and shall be heard by one (1) arbitrator. The chairperson of the Arbitration Centre will select the arbitrator. Notwithstanding any other provision of this Agreement, in the event of claims or disputes regarding: (a) amounts owed a Party; or (b) breach or threatened breach of obligations relating to confidentiality, intellectual property, reverse engineering or regulatory matters, then without prejudice to the rights of the Parties to submit the matter to arbitration, a Party shall have the right to seek relief in any court with jurisdiction including, without limitation, for money damages or injunctive relief. Subject to the preceding sentence, each Party shall bear its own costs and one half of the costs associated with the arbitration proceedings, unless otherwise determined as part of the arbitral award. The substantive laws of Ontario, Canada will be applied. The decision of the arbitral tribunal shall be final and binding on the Parties with no right to appeal.
28. ENTIRE AGREEMENT; MODIFICATION. This Agreement is the complete, final and exclusive statement of the terms of the agreement between the parties and supersedes any and all other prior and contemporaneous negotiations and agreements, whether oral or written, between them relating to the subject matter hereof. The terms and conditions of this Agreement shall prevail notwithstanding any variance with the terms and conditions of any acknowledgment or other document submitted by Supplier. However, this Agreement will not supersede or take the place of any written agreement which is signed by both parties and covers the same subject matter as this Agreement or its related purchase orders. This Agreement may not be varied, modified, altered or amended except in writing, including a Customer purchase order or a change order issued by Customer, signed by the parties.
29. COMPLIANCE. Noncompliance of this Section 29 (Compliance) shall constitute a material breach of the Agreement and may result in penalties or liability on behalf of Supplier.
29.1 General. Supplier shall comply with all applicable laws, rules, regulations and standards related to the activities contemplated by this Agreement including, without limitation, those related to environmental protection, worker health and workplace safety, labor and employment, human rights, and any international treaties or agreements (collectively, the “Applicable Laws”).
29.2 Business Practices. Supplier shall not, directly or indirectly, make a bribe or other illegal gift or payment or offer, promise or authorize a bribe or other illegal gift or payment to any public or private person or entity, in connection with this Agreement. Supplier represents and warrants that they have not taken, or permitted any Supplier’s Assistants, to take any action which would constitute a breach of this provision and covenant to comply, and require Supplier’s Assistants, with this provision.
29.3 Sanctions. Supplier represents and warrants that none of Supplier or Supplier’s Assistants, or any of their respective subsidiaries, directors, officers, or employees, or to the best of their collective knowledge after due inquiry, any agents or other person acting on behalf of any of the foregoing: (i) is or is owned by a person listed on the “Specially Designated Nationals and Blocked Persons” list (SDN List) maintained by OFAC or similar list maintained by the United Nations, the European Union, or any other Canadian or US government entity; (ii) directly or indirectly has conducted or conducts or is involved with any business with or involving any government, or any person, entity or project, targeted by, or located in any country that is subject of, any of the sanctions administered by OFAC, the US Department of State, or equivalent sanctions or measures imposed by the United Nations, European Union, or any other Canadian or US government entity; or (iii) is or ever has been in violation of or subject to an investigation relating to such sanctions or measures.
29.4 Anti-Money Laundering. Supplier represents and warrants that the operations of Supplier and Supplier’s Assistants are and have been conducted at all time in compliance with anti-money laundering laws and all applicable financial record keeping and reporting requirements, rules, regulations, and guidelines applicable to Supplier and Supplier’s Assistants (“Money Laundering Laws”) and no action, suit or proceeding is before any court or governmental agency or body involving Supplier or any of and Supplier’s Assistants with respect to Money Laundering Laws.
29.5 Export Requirements. Supplier hereby certifies that all of the Goods supplied to Customer under this Agreement may be exported from the country of export to all countries of the world without restriction and without prior authorization of any regulatory agency, under the applicable export control laws and regulations of the country of export and the United States. If applicable, Supplier further certifies that the Export Classification Control Number(s) (ECCNs) and the Harmonized Tariff Schedule (HTS) number(s) for Supplier’s Goods that have been provided to Customer are true, correct and complete, to the best of Supplier’s knowledge and belief.
29.6 Origin and USMCA Eligibility. Upon Customer’s request, Supplier will promptly provide Customer with an accurate and complete certificate of origin for all Goods or a USMCA Certificate of Origin for all eligible goods manufactured in the United States, Canada, or Mexico. Supplier shall immediately notify Customer concerning any changes in origin or in USMCA eligibility. Supplier shall indemnify and hold harmless Customer for any breach of the foregoing.
29.7 RoHS Compliance. Unless Supplier is given confirmation in writing from Customer that specific components, parts, materials or products do not need to be compliant with RoHS Laws (as defined below), all components, parts, materials or products provided by Supplier to Customer (“RoHS Products”) shall comply with the European Directive 2002/95/EC, Restriction of the Use of certain Hazardous Substances in Electrical and Electronic Equipment (the “RoHS Directive”) and all legislation of any country or political subdivision thereof implementing the RoHS Directive (collectively, with the RoHS Directive, the “RoHS Laws”).
29.8 Privacy and Data Processing. Supplier shall abide by all applicable privacy and data protection laws and regulations. The Customer’s Privacy Policy published at www.miovision.com/legal/policies/privacy (as may be amended by Customer from time to time) applies to any personally identifiable information provided to Customer. Customer will not be held liable for any privacy or data protection violations of the Supplier, and Supplier shall indemnify and hold harmless Customer for any such violations.
29.9 Supplier Code of Conduct. Supplier will comply with the Customer’s Supplier Code of Conduct available at https://www.responsiblebusiness.org/media/docs/RBACodeofConduct7.0_English.pdf (together with the materials referenced and linked therein, the “Supplier Code”) and which is incorporated herein as part of this Agreement and Supplier will comply with all of the laws, principles and standards that are referenced under the Supplier Code. Customer may request reasonable financial information to determine the financial condition of Supplier or corporate parent guarantees to ensure Supplier’s performance of its obligations under this Agreement and with respect to the Supplier Code.
29.10 Audit. Customer shall have a general right to audit the Supplier’s compliance with this Section 29 (Compliance), and the Agreement.
29.11 Consents. Supplier shall ensure that Supplier has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that Supplier needs to carry out its obligations under this Agreement.
29.12 Policies. Supplier shall comply with Customer’s applicable policies and instructions including, but not limited to, relating to access to and use of Customer’s IT systems or facilities; health and safety; and data protection and information security.
30. DISCONTINUATIONS.
30.1 Discontinuation By Supplier. If the production by Supplier or the availability of any Goods covered by this Agreement is discontinued or materially suspended by Supplier at any time during the term of the Agreement, Supplier agrees to provide Customer with: (i) at least six (6) months prior written notice; and (ii) an opportunity for Customer to make one or more last-time-buy orders for the end-of-life Good, which may be for quantities of up to the greater of: (a) Customer’s forecasted demand for the Good for the two (2) years following the end of life; and (b) ten (10) times the amount of the Good previously ordered by or for Customer from Supplier.
30.2 Discontinuation of Components. If Supplier learns of or receives notice from a supplier that production or the availability of any component of a Good covered by this Agreement is to be discontinued or materially suspended at any time during the term of this Agreement, Supplier agrees to: (i) provide prompt written notice to Customer of such discontinuance or suspension; (ii) use best efforts to purchase an alternative, comparably priced component to replace the discontinued product; (iii) provide Customer with a change request as described further in Section 31 (Changes); (iv) continue to perform all obligations under the Agreement; and (v) use best efforts to continue to provide the Goods to Customer and accept orders from Customer for quantities of Goods that are consistent with past practices or Customer’s forecasts, and at the prices referenced this Agreement. Should a price adjustment to Goods be required due to component discontinuation then the new pricing will be consistent with past pricing practices and margins.
31. CHANGES.
31.1 Changes Requested by Customer or Supplier. Either Party may request necessary changes to the applicable specifications or the development schedule. Either Party may submit a change request in writing to the other Party for a change. Supplier must provide to Customer the details of changes requested, a detailed cost impact analysis and an estimate of any schedule changes resulting from the change request. Customer must approve in writing any change prior to implementing such change.
31.2 Changes in Specification, Manufacturing Process or Location. Supplier must not make any change to the applicable specifications, its manufacturing process, product authorization request process, or location without prior written approval from Customer. Supplier shall notify Customer a minimum of six (6) months in advance of any manufacturing process or location change to provide sufficient lead time for Customer to do qualification, including samples qualification on Goods.
- HAZARDOUS MATERIALS: If Goods include hazardous materials, Supplier represents and warrants that Supplier understands the nature of any hazards associated with the manufacture of Goods which include hazardous materials, the handling of such hazardous materials and the transportation of such hazardous materials (separate to, together with, or as part of, the Goods) and shall comply with all applicable laws relating to such manufacture, handling and transportation.
- SUPPLY CHAIN SECURITY REQUIREMENTS. Supplier agrees to take such reasonable measures to ensure the physical integrity and security of all shipments to Customer against the unauthorized introduction of harmful or dangerous materials, drugs, contraband, weapons or weapons of mass destruction or introduction of unauthorized personnel in transportation conveyances or containers. Supplier shall indemnify and hold harmless Customer for any breach of the foregoing. All full containers and trailers sent to Customer must be sealed with an ISO/PAS 17112 High Security Seal. Such measures may include, but are not limited to, physical security of manufacturing, packing and shipping areas; restrictions on access of unauthorized personnel to such areas; personnel screening to the maximum limits of law and regulation in Supplier’s or manufacturer’s country; and development, implementation and maintenance of procedures to protect the security and integrity of all shipments. Customer may from time to time review Supplier’s supply chain security procedures, including on-site reviews at Supplier’s facility.