These General Terms & Conditions (the “Terms”) apply to each agreement by purchase order (each such purchase order and the Terms being collectively the “Agreement”) between Vanrx Pharmasystems Inc. as buyer (“Vanrx”) and a supplier (“Seller”) for the supply of goods, equipment, materials or other deliverables described in the purchase order (collectively the “Goods”).
Upon Seller’s acceptance of the purchase order, Seller will deliver to Vanrx (by email, fax, courier, or mail) a copy of the purchase order signed by an authorized signatory of Seller. Delivery of a signed purchase order will constitute Seller’s agreement to a binding contract including the terms of the purchase order and all of these General Terms and Conditions for Purchase Orders. If Seller fails to deliver a signed copy of the purchase order to Vanrx but proceeds to supply any of the Goods to Vanrx, such supply will constitute Seller’s agreement to a binding contract and Seller’s acceptance of the purchase order and all of these General Terms and Conditions for Purchase Orders. An agreement formed under this section supersedes and cancels all previous agreements, offers or proposals between the parties relating to the Goods, either oral or written, including offers from Seller contained in a proposal from Seller or otherwise. Any terms or conditions contained in any acknowledgment, invoice or other communication of Seller (including any terms or conditions which are inconsistent with or supplementary to the purchase order or these General Terms and Conditions for Purchase Orders) are not included in the Agreement unless agreed to in writing by Vanrx.
In the event of a conflict or contradiction between these Terms and Conditions and a provision of another document that is part of the Agreement, these Terms will govern unless otherwise expressly stated otherwise in the other provision.
Changes and Quality Management System. All chemicals, equipment and materials proposed and/or used in the performance of this Agreement must conform to all applicable laws, regulations and standards in effect in Canada and the United States of America and with good laboratory practices or good manufacturing practices, as applicable. The Seller must furnish all Material Safety Data Sheets (MSDS) for any regulated chemicals, equipment or hazardous materials at the time of delivery to Vanrx. The Seller agrees to notify Vanrx of any proposed changes in the Goods (i.e. to the form, fit, function and/or deviations from the specifications). Such notification will be made in sufficient detail so that Vanrx can determine if the change has an impact on the quality or performance of a finished product/device. Any changes must be approved by Vanrx prior to shipment. If the purchase order specifies that the Goods must be compliant with any specific ISO or other standards, Seller will, and will cause each of its subcontractors to, implement and maintain a quality management system based on, and compliant with, such standard(s) and represents that the Goods delivered to Vanrx will meet or exceed such standard(s).
Vanrx or its nominees will own, and Seller hereby assigns to Vanrx, all right, title and interest in any discoveries, developments, enhancements, improvements, know-how, concepts, formulas, techniques, processes, ideas, writings, materials, data, documents, drawings, software, research, report, studies, industrial and other designs, patents, copyrights, trade-marks and other form of intellectual property, trade secrets or utility models, whether or not copyrighted or patented or registered or protected, or capable of such registration or protection, developed by or on behalf of Seller in the fulfilment of the Agreement. Seller will ensure that its employees and subcontractors waive any and all claims and assign to Vanrx any and all rights or any interests in the Goods and any intellectual property created by Seller or its employees or subcontractors in the performance of their activities under this Agreement.
Vanrx will not have rights to any works conceived or reduced to practice by Seller which were developed entirely on Seller’s own time without using equipment, supplies, facilities, trade secrets or Vanrx’s confidential information, unless (i) such works relate to Vanrx’s current or anticipated business or Vanrx’s actual or demonstrably anticipated research or development, or (ii) such works result from the Services or are otherwise the of Vanrx pursuant to the terms of the Agreement. The Seller grants to Vanrx a worldwide, non-exclusive, royalty-free, irrevocable license to repair and have repaired, to reconstruct and have reconstructed the Goods provided under this Agreement (where not developed specifically for and owned by Vanrx pursuant to this Agreement).
For the purposes of the Agreement, “Work Product” will include, without limitation, all designs, discoveries, creations, ideas, works, creations, devices, masks, models, work in progress, deliverables, inventions, products, computer programs, procedures, improvements, developments, algorithms, drawings, analysis, trade secrets, experiments, data, know-how, show-how, formulae, methods, processes techniques, jigs, dyes, molds, models, prototypes, products, equipment, tools, software and documentation therefor, reports, notes, documents, business processes, information and materials developed by Seller for Vanrx pursuant to the Agreement or provided by Seller under the Agreement. Notwithstanding the foregoing, Goods manufactured by Seller and sold to Vanrx without having been designed, customized or modified for Vanrx do not constitute Work Product. All Work Product will at all times be and remain the sole and exclusive property of Vanrx. Seller hereby agrees to irrevocably assign and transfer to Vanrx and does hereby assign and transfer to Vanrx all of its worldwide right, title and interest in and to the Work Product including all intellectual property rights associated with or derived from the Work Product (the “Intellectual Property”). Seller agrees: (a) to disclose promptly in writing to Vanrx all Work Product and Intellectual Property in its possession; (b) to assist Vanrx in every reasonable way, at Vanrx’s expense, to secure, perfect, register, apply for, maintain, and defend for Vanrx’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 and Intellectual Property in Vanrx’s name as it deems appropriate; and (c) to otherwise treat all Work Product and Intellectual Property as Vanrx’s Confidential Information as described above. These obligations to disclose, assist, execute and keep confidential survive the expiration or termination of the Agreement. All tools and equipment supplied by Vanrx to Seller will remain the sole property of Vanrx.
Seller will consider: (a) all information and materials (whether such information and materials relates to Vanrx, an affiliate of Vanrx or to a third party) that is furnished to Seller as part of or in connection with the Agreement; (b) and all deliverables to be provided to Vanrx by Seller under the Agreement; to be confidential and proprietary to Vanrx and will not disclose or provide any such information, materials or deliverables to any other person, or use any of the foregoing for any purpose other than performing the Agreement, unless Seller obtains written permission from Vanrx to do so. Unless consented to in writing by Vanrx, Seller will not advertise, publish or disclose: (y) the fact that Vanrx has purchase ordered to purchase Goods; or (z) any other information relating to this Agreement.
Seller will supply the Goods according to the timetable or dates specified in the purchase order, if any, or in a timely way. Time is of the essence of the Agreement.
It will be the responsibility of the Seller that all Goods be securely and safely packed and labeled (including all warning labels and safety information) in compliance with all applicable laws, regulations and orders and so as to afford sufficient protection to the Goods against the elements and other risks of damage, loss or theft normally incidental to the shipment of goods of the type being shipped. A packing slip detailing the following information must accompany all shipments of Goods: (a) Seller’s full legal name and address; (b) the applicable Vanrx purchase order number; and (c) a description of the Goods and quantity shipped.
Unless otherwise specified, in the purchase order, delivery will be F.O.B. Vanrx’s facility in Burnaby, British Columbia or such other delivery location specified in the purchase order. The risk of loss or damage to any of the Goods will remain with Seller until the Goods are delivered to and received by Vanrx at the specified delivery location at which time title to the Goods will pass to Vanrx.
Seller confirms it is aware of the intended use of the Goods and represents, warrants and guarantees that the Goods supplied will: (a) be fit for their intended use; (b) be free from defects and/or imperfections; (c) be free and clear of all charges, liens, claims or encumbrances; (d) not infringe any patent, copyright, trademark or other intellectual property right of any third party; (e) comply with all requirements specified in the Agreement; and (f) comply with all applicable laws, codes, statutes, by-laws, rules and regulations, of any federal, provincial, municipal or other competent authority. Acceptance of the Goods by Vanrx, including verification at any time of the quality of the Goods or any payment for the Goods, will not be interpreted to mean that Vanrx has in any way accepted Goods that do not comply with the specified quality requirements or that Seller is in any way relieved from its obligation to comply with such specified quality. Seller will repair or replace and install at Vanrx’s option and Seller’s expense any defective Goods or part thereof if the Goods as delivered fail to comply with the requirements of the Agreement at any time during the 1 year period following the date of delivery, provided that Vanrx may at its election remedy such defects at Seller’s expense if, in Vanrx’s sole opinion acting reasonably, failure to do so would risk further loss to Vanrx. Without limiting the foregoing, the Seller recognizes that Vanrx’s production requirement may require immediate repairs or reworking of defective Goods, without notice to the Seller. In such event, the Seller will reimburse Vanrx for the costs, delays or other damages, which Vanrx has incurred.
As a condition of acceptance by Vanrx, all Goods will be subject to inspection by Vanrx at the place specified for delivery or as may be specified in writing by Vanrx, at Seller’s or other premises, and if rejected by Vanrx in its sole discretion because the Goods do not comply with the specified quality the Goods will, as directed by Vanrx, be removed and/or replaced at Seller’s expense.
Seller will submit original invoices for Goods as directed in the applicable purchase order. Invoices must indicate the purchase order number, Seller’s full legal name and address, the address to which the Goods have been delivered, a description of the Goods and quantity supplied (that matches the description, quantity and unit of measure set out in the packing slip for the Goods invoiced) and complete purchase price calculations. As full consideration for the supply of Goods, Vanrx will pay Seller: (a) the amount specified in the applicable purchase order, or (b) Seller’s publicly quoted price on date of order for Goods, whichever is lower. The purchase price will be deemed to include all freight and transportation charges, sales and value added taxes or similar taxes and any applicable customs charges or duties except as shown as separate line items as extra or additional. Vanrx will pay invoices as per the payment terms that supplier and Vanrx have agreed on, except if Vanrx disputes any invoice, in which case Vanrx will notify Seller in writing within 60 days of the date of receipt of the invoice, and the dispute will be resolved in accordance with the Dispute Resolution clause set out below. Unless a purchase order specifically states otherwise, all payments for Goods or Services will be invoiced and paid in Canadian dollars.
Seller will at its own expense, obtain and maintain all licenses, certificates, permits, and authorizations necessary and required to supply the Goods and will provide copies of such licenses, certificates, permits, and authorizations to Vanrx upon request.
Seller will establish and maintain records for all Goods supplied to Vanrx for a period of no less than seven years from the date of supply and on request will make them available to Vanrx.
When the purchase order is not accepted by written acknowledgment by the Seller, this purchase order may be canceled by written or oral notice to the Seller prior to shipment of Goods to Vanrx. Thereafter, Vanrx may at any time by written notice to Seller cancel the Agreement with respect to Goods that, as of the date of cancellation, have not been delivered provided however that if Vanrx does so on less than 30 days’ notice (or such longer amount of notice of cancellation as expressly specified in the applicable purchase order), Vanrx will pay all reasonable costs Seller has incurred or has irrevocably committed to incur with respect to the cancelled Goods. Such payment will in no event exceed the purchase price under the Agreement with respect to the cancelled Goods, and will be reduced by any refunds, amounts received by the Seller on resale of the Goods or salvage available to Seller plus the aggregate amount, if any, previously paid by Vanrx on account of the cancelled Goods. Notwithstanding the foregoing, Vanrx may also terminate this Agreement or any part hereof for cause in the event of any default by the Seller under this Agreement and, in such event, Vanrx will not be liable to the Seller for any amount, and the Seller will be liable to Vanrx for any and all damages sustained by reason of the default which gave rise to the termination except that if it should later be determined that Vanrx has improperly terminated this purchase order for default, such termination will be deemed a termination for convenience.
Seller will indemnify and save Vanrx harmless from and against all claims and costs of any kind whatsoever (including reasonable legal fees and disbursements) that Vanrx incurs or is required to pay as a result of: (a) Seller’s negligence; (b) breach of the Agreement by Seller or any party for whom Seller is responsible; (c) any actual or alleged death of or injury to any person, damage to any property, or any other damage or loss by whosoever suffered, resulting or claimed to result in whole or in part from the Goods; (d) any infringement of any intellectual property right arising out of the purchase or use (including commercial use) of any of the Goods. Without limiting the foregoing, if Vanrx’s use, or use by its subcontractors or customers, of any Goods purchased from Seller is enjoined, threatened by injunction, or the subject of any legal proceeding, Seller will, at is sole cost and expense, either (a) substitute fully equivalent non-infringing Goods; (b) modify the Goods so that they no longer infringe but remain fully equivalent in functionality; (c) obtain for Vanrx, its subcontractors or customers the right to continue using the Goods; or (d) if none of the foregoing is possible, refund all amounts paid for the infringing Goods.
Any claims or disputes between the parties relating to the Agreement which cannot be settled amicably by parties within 30 days of such dispute arising may at the sole option of Vanrx be referred to arbitration in Vancouver, British Columbia, Canada by a single arbitrator, pursuant to The Arbitration Act (British Columbia) and amendments thereto. To the maximum extent permitted by law, an aware under this clause will be final and binding on the parties.
Seller may not assign or subcontract the Agreement in whole or in part without Vanrx’s prior written consent. Subject to applicable laws, Vanrx is free to engage others to provide Goods the same as or similar to Seller’s. Seller is free to advertise, offer and provide Seller’s Services and/or Goods to others provided, however, that Seller complies with its obligations under the Agreement. The Agreement is governed exclusively by and construed exclusively in accordance with, the laws of British Columbia, Canada and litigation will be brought only in that jurisdiction. The UN Convention on Contracts for the International Sale of Goods will not apply to the terms and conditions of the Agreement.
Vanrx’s maximum liability in connection with the Agreement will be the amount of the price determined in accordance with section 11 of these Terms. In no event will Vanrx be liable to Seller or Seller’s representatives, or any third party for an incidental, indirect, special or consequential damages arising out of, or in connection with, the Agreement.
Seller bears all responsibility for loss of and damage to any property owned by Vanrx and in Seller’s possession or control for use in performing a purchase order however occasioned, including responsibility for loss and damage, which occur despite Seller’s exercise of reasonable care, but excluding normal wear and tear. Seller will (i) properly store and maintain such property on Seller’s premises, (ii) prominently mark it as Property of Vanrx, (iii) refrain from commingling it with the property of Seller or with that of a third party, (iv) adequately insure such property against loss or damage, and (v) not move it to another location whether owned by Seller or a third party without the prior written consent of Vanrx, except in the case of an emergency, Seller may move such property provided that it gives Vanrx notice that the property has been moved and the location of the property as soon as reasonably practicable. Vanrx will have the right to enter Seller’s premises at reasonable times to inspect such property and Seller’s records pertaining thereto. Where permitted by law, Seller waives any lien that Seller might otherwise have on any of Vanrx’s property for work done thereon or otherwise. Seller will assign to Vanrx any claims Seller has against third parties with respect to Vanrx’s property. Upon request, Seller immediately will deliver such property to Vanrx’s premises in accordance with Vanrx’s delivery instructions, properly packed and marked in accordance with the requirements of the carrier and Vanrx. Seller will cooperate with Vanrx’s removal of the property from Seller’s premises.
Within the framework of its commercial dealings with Vanrx, Seller is obliged to desist from all practices which may lead to penal liability due to fraud or embezzlement, insolvency crimes, crimes in violation of competition, guaranteeing advantages, bribery, acceptance of bribes or other corruption crimes on the part of persons employed by Seller or other third parties. In the event of violation of the above, Vanrx has the right to immediately withdraw from or terminate all legal transactions existing with Seller and the right to cancel all negotiations. The above notwithstanding, Seller is obliged to adhere to all laws and regulations applicable to both itself and the commercial relationship with Vanrx.