Vendor Terms and Conditions
Terms and Conditions of Purchase Order for all
Goods and Services
The Econo-Rack Group (2015) Inc. dba Konstant
(“Konstant”)
Instructions to Supplier
FURNISH COMPLETE SHIPPING INFORMATION INCLUDING ITEM NO., QUANTITY, UNIT OF MEASURE KONSTANT’S ITEM NO., IDENTIFICATION NUMBER, AND INCLUDE PACKING LIST WITH EACH SHIPMENT. SHOW PURCHASE ORDER NUMBER ON PACKAGE, PACKING LIST, BILL OF LADING, INVOICE OR EQUIVALENT ELECTRONIC TRANSACTION (“INVOICE”) AND ALL CORRESPONDENCE. ALL ORDERS ARE SUBJECT TO THE FOLLOWING CONDITIONS:
1. Governing Terms and Conditions: These terms and conditions and the Purchase Order (collectively the “Agreement”), constitute the exclusive and entire understanding between Konstant and Supplier for the supply of goods (“Goods) and/or services (“Services”). Konstant gives notice that it objects to and rejects any terms or conditions contained in any document which has been or may in the future be supplied by Supplier which are in addition to, different from, inconsistent with or attempt to vary any of the terms and conditions in this Agreement. Konstant’s acceptance of the Supplier’s Goods/Services will not be construed as an acceptance of any terms or conditions contained in any such document provided by Supplier.
2. Customs Documentation: Supplier agrees to provide all information necessary for Konstant to comply with all applicable laws and reporting obligations. Supplier shall supply all necessary customs documentation and/or electronic transaction records to allow Konstant to meet its customs related obligations and to obtain any refund benefits, where applicable. Supplier agrees to defend, indemnify and hold harmless Konstant from and against any and all claims, demands, costs, losses, damages, liabilities (including legal fees) that may arise as a result of Supplier’s failure to comply with these requirements.
3. Tax: Sales taxes are applicable unless otherwise indicated.
4. Title and Risk of Loss: Unless otherwise specified in the Purchase Order, Supplier will have the risk of loss for all Goods shipped until receipt of delivery and acceptance of such Goods by Konstant, at which time title to and risk of loss with respect to such Goods will pass to Konstant, free and clear of all liens, charges or encumbrances whatsoever.
5. Inspection & Rejection: All Goods/Services are subject to Konstant’s inspection and acceptance. If rejected, the Goods will be held for disposal at Supplier’s risk and expense. No payment, inspection or acceptance of any part or all of the Goods/Services will relieve Supplier from full responsibility with the specifications in the Purchase Order.
6. Warranty: In addition to any other express or implied warranties, Supplier warrants that: (a) all Goods/Services supplied will be in accordance with all applicable specifications, drawings, descriptions and other requirements of the Purchase Order; (b) all Goods will be of good industry standard material and workmanship, will be fit and suited for the purpose or use contemplated by the Purchase Order, and will be of merchantable quality; (c) all Services (including workmanship) will be in accordance with the customary trade standards for such Services in Konstant’s industry; and (d) unless a longer period is specified elsewhere in the Purchase Order, all Goods supplied will be free from defects in material, design and workmanship for a period of 18 months, from the date of Konstant’s receipt of such Goods.
7. Set Off: Konstant may withhold, set-off or deduct from any amount otherwise payable to Supplier under the Purchase Order, such amount as may be reasonably necessary to reimburse, indemnify or protect Konstant from any amount owing by Supplier to Konstant pursuant to the Purchase Order, or for any loss or damage that may be due to the default by Supplier in any obligation under the Purchase Order or from claims by third parties against Konstant in respect of the Goods or Services.
8. Indemnification: To the fullest extent permitted by law, Supplier agrees to defend, indemnify (notwithstanding any possible disclaimers of liability to the contrary, which disclaimers Supplier agrees do not apply to this Agreement), except to the extent due to Konstant’s negligence or willful misconduct, and hold Konstant, its officers, directors, affiliates, representatives, agents and employees, harmless from any and all charges, claims, actions, damages, losses, expenses, costs, including, but not limited to legal fees, by any party or person arising out of personal injuries, illness or death, or injury to or destruction of property including loss of use resulting from, or in any way connected with: (a) Supplier’s performance or non-performance; (b) anyone directly or indirectly employed by Supplier; (c) anyone for whose acts Supplier may at law be liable; or (d) from the Goods sold.
9. Compliance with Laws: Supplier warrants and agrees that all Goods/Services will comply with all applicable federal, provincial and local laws, regulations, ordinances, rules, codes and permits (“Laws”) including, without limitation, all Laws affecting the price, production, use, classification, handling, transportation, storage, sale or delivery of any Goods and all applicable occupational health and safety sanctions and export controls, anti-corruption and anti-bribery, forced labour and modern slavery, and environmental Laws.
9.1. Forced and Child Labour Prevention: Supplier warrants and agrees that all Goods/Services provided will be completely devoid of any forced or compulsory labour, slavery and modern slavery, human trafficking, servitude, debt bondage, labor exploitation, as well as free from verbal or physical humiliation, violence, coercion, mental abuse, sexual harassment, threats, or intimidation. This also includes ensuring that no abusive working conditions are present, even if they are purportedly used as disciplinary measures. Supplier’s employees shall enter employment relationship on a voluntary basis and shall have the right to terminate it the with a reasonable notice period. Supplier shall not withhold, confiscate, destroy, or deny access to employees' passports or any other personal identity documents, and shall not engage in any actions that would restrict the freedom of movement of their employees. Supplier shall not charge recruitment fees to employees. Supplier shall actively prevent any form of child labor in their operations or supply chains. Supply warrants and agrees that Supplier shall only employ workers who meet or exceed the legal minimum age as determined by the most stringent of either applicable Laws, or the standards set by Convention C138 of the International Labour Organization (ILO).
10. Intellectual Property: Supplier represents and warrants that all Goods/Services do not infringe any valid patent, trademark, copyright or other intellectual property right and agrees to defend, indemnify and hold harmless Konstant from and against any and all claims, demands, costs, losses, damages, profits and liabilities (including legal fees) that may arise as a result of any claim of infringement arising out of the production, use and sale of Goods or provision of Services sold hereunder. If the Goods are claimed to infringe any valid patent, trademark, copyright or other intellectual property right of a third party, Supplier shall at its expense shall either (i) modify the Goods to render them non-infringing; or (ii) replace the Goods with non-infringing goods.
Names and trademarks of Konstant shall remain the sole and exclusive property of Konstant and shall not be used by Supplier for any purpose whatsoever unless expressly authorized in writing by Konstant.
11. Confidentiality: Any specifications, designs, patterns, samples or other similar items or other technical, commercial or financial information relating to Konstant’s business (the “Information”) which Supplier may obtain in connection with the Purchase Order will be deemed to be confidential. Supplier will not use the Information for its own purposes (other than for fulfilling its obligations under the Purchase Order), nor will Supplier disclose the Information to any third party except as specifically authorized by Konstant in writing. Konstant will have the right to make copies of or otherwise use (including duplicating any components required for the maintenance or repair of any Goods) any drawing or other information provided by Supplier in regards to the Goods/Services.
12. Changes: Supplier shall give sufficient reasonable prior written notice to Konstant of any change(s) in new materials, manufacturing processes, manufacturing location, or test methods and both parties will review the impact to Konstant’s processes or performance. If such change(s) increases or decrease the costs or time to perform, the parties must mutually agree to any changes and shall only be binding if in writing and agreed to and signed by an authorized representative of Konstant.
13. Subcontractors: Supplier will not engage a subcontractor for Services or the manufacture or fabrication of Goods without the prior written consent of Konstant.
14. Delay: Time is of the essence. Supplier will deliver Goods/Services in accordance with the times specified in the Purchase Order. Supplier will not be liable for delays in delivery of the Goods/Services due to causes not within the reasonable control of Supplier; provided that, Supplier immediately notifies Konstant in writing of any such delay. If such delay is or is expected to be more than 15 days, Konstant may, at its option, cancel all or any portion of the Goods/Services by giving written notice to Supplier, without further liability on the part of Konstant.
15. Cancellation for Cause: Konstant may, upon written notice, cancel the supply of any Goods/Services or any part due to Supplier’s failure to comply with this Agreement which shall include and not be limited to late delivery of Goods/Services, delivery of Goods/Services which are not to the specifications in the Purchase Order or failure to provide Konstant, upon request, with reasonable assurances of future performance. Supplier shall safely hold all goods, articles or uncompleted portions of goods or articles and other property of Konstant until instructed to ship or otherwise dispose of such goods or articles. Konstant may take possession of all the above-mentioned goods or articles on Supplier’s site. Supplier hereby gives Konstant permission to enter its premises for this purpose.
16. Cancellation without Cause: Konstant, in its sole option, may cancel all or any part of the Goods/Services upon written notice. If the Purchase Order is for (i) standard stock merchandise, or services, Konstant will have no obligation to pay cancellation charges or other compensation except to make payment for Services performed or Goods shipped prior to cancellation that have not yet been paid for; or (ii) if the Purchase Order is for goods fabricated or constructed to the specifications of Konstant, Supplier shall accept as full compensation reasonable direct out-of-pocket costs up to the date work is stopped or as approved by Konstant, provided, however the total amount to be paid to Supplier upon cancellation, plus payments made previously by Konstant to Supplier, will not exceed the total aggregate purchase price specified in the Purchase Order. Supplier shall not penalize Konstant, financially or otherwise, for cancellation of the Purchase Order. Supplier shall safely hold all goods, articles or uncompleted portions of goods or articles and other property of Konstant until instructed to ship or otherwise dispose of. Konstant may take possession of all the above-mentioned goods or articles on Supplier’s site and Supplier gives Konstant permission to enter its premises for this purpose.
17. Attendance at Konstant’s Facility: The following additional provisions apply:
(a) Supplier and its officers, employees, agents and subcontractors will comply with all site rules and safety and security regulations established by Konstant.
(b) Supplier will have complete control and responsibility for the safety and health of its officers, employees, agents and subcontractors that attend a facility of Konstant and will take all necessary precautions to prevent the occurrence of any injury to person or damage to property while at the facility.
(c) Supplier will obtain all necessary permits and/or licenses and give all necessary notifications for the attendance at the facility and performance of the Services.
(d) Supplier will notify Konstant in advance of any hazardous materials that may be brought into the Konstant facility and provide Konstant with the appropriate Material Safety Data Sheets for such materials.
(e) Where applicable, payment of Supplier’s invoices will be subject to compliance with the holdback provisions of any applicable lien legislation until receipt of appropriate clearance certificates regarding the payment of Workers’ Compensation assessments and provincial sales tax is provided.
(f) Supplier will maintain general liability insurance and automobile liability insurance in an amount not less than $2,000,000 per occurrence. The terms of such insurance must be satisfactory to Konstant and Supplier will provide Konstant with satisfactory proof of such insurance coverage upon request.
18. General:
(a) This Agreement is not assignable by Supplier in whole or in part, except with the prior written consent of Konstant and if consent is provided shall enure to the benefit of and be binding on the parties and their respective successors and permitted assigns.
(b) Unless otherwise agreed in writing, any personally identifiable information provided by one party to the other hereunder may only be used for conducting the business transaction(s) that is the subject of this Agreement. Konstant does not consent to Supplier’s use of any personally identifiable information provided for any direct marketing or to the transfer of such information to any third party.
(c) Except as otherwise expressly provided in this Agreement, any rights and remedies specified are cumulative and are in addition to any other rights or remedies available to Konstant at law.
(d) Should any provision of herein found to be invalid or unenforceable by law, it shall cease to operate and be considered severed and all remaining provisions shall continue to be valid and binding upon the parties.
(e) This Agreement shall be construed in accordance with the laws of the Province of Ontario, and the parties agree that the Courts of the Province of Ontario shall have exclusive jurisdiction over same. The parties agree that the Sale of Goods Act (Ontario) and the United Nations Convention on Contracts for the International Sale of Goods, or any amendments thereto, shall not apply.
(f) The waiver by Konstant of any term, condition or provision herein shall not be construed to be a waiver of any other term, condition or provision thereof nor shall any such waiver be deemed a waiver of a subsequent breach of the same term, condition or provision, nor shall it be deemed a waiver of any provision of any subsequent order.
(g) This Agreement contains the entire understanding between the parties concerning and supersedes all prior written, or oral agreements and shall only be modified in writing and signed by authorized representatives of both parties.
19. Supplier Supply-Chain Due Diligence:
Suppliers shall establish due diligence process to ensure compliance with the terms and conditions outlined herein. Such processes should include, but is not limited to, implementing policies and procedures for ethical business conduct and for sustainable procurement, and conducting audits of their supply chains. Suppliers will thoroughly map their supply chains to identify, analyze, and prioritize significant sustainability and trade compliance (including but not limited to sanctions, anti-corruption, and forced labour) risks and to implement effective measures to manage these risks appropriately.
20. Sustainability:
Supplier shall be transparent about their greenhouse gas (GHG) emissions, including emissions from both their operations and their upstream activities. Suppliers shall enhance their energy efficiency and increase the use of renewable energy sources, establishing robust GHG reduction targets that support the gradual decarbonization of their operations and supply chains. When requested, suppliers must provide Johnston Equipment with products and services produced using renewable energy and furnish evidence confirming the renewable energy's origin. Upon request, Supplier will disclose information regarding the GHG emissions of their products and/or services (encompassing scope 1, 2, and 3 emissions), spanning from the production stage to delivery at Johnston Equipment 's facilities, and ensuring these calculations align with internationally recognized standards such as the GHG Protocol, ISO 14064, ISO 14067, etc.
Suppliers shall monitor, record, document and upon request provide Johnston Equipment with environmental quantitative data and performances, Life Cycle Inventories/Assessment reports or Environmental Footprints.
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