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Terms & Conditions

Terms and Conditions of Purchase 

As used herein, “Order” means Nano One Purchase Orders and other associated purchasing documents transmitted to you as Seller by e-mail or via any other mode of transmission. The following terms and conditions are incorporated by reference into each Nano One Order issued to you as Seller. “Buyer” means Nano One or any of its affiliated companies or unincorporated divisions; “Buyer’s Terms” means the terms and conditions on the face and back of this Order. “Seller” means the supplier shown on the face of this Order; and “Goods” means the products and/or services of Seller shown on the face of this Order.

1. Acceptance: Seller will be deemed to have accepted this Order when Seller acknowledges this Order or begins performance under this Order. Seller’s acceptance is limited to acceptance of Buyer’s terms. Buyer hereby objects to and rejects any proposal by Seller for additional or different terms, including additional or different terms on any Order acknowledgment, confirmation or invoice issued by Seller. 

2. Delivery: (a) Seller will make deliveries in the quantities, at the times and dates, packaged and marked, as specified in the Order. If Seller’s deliveries fail to meet Buyer’s delivery schedule, Buyer, in addition to its other rights, may direct expedited routing and charge Seller for any excess costs incurred as a result. (b) Unless stated otherwise in the Order, title and risk of loss for Goods will pass from Seller to Buyer upon Buyer’s receipt of goods. 

3. Inspection and Acceptance of Goods: Buyer is relying on Seller’s representations and warranties that the Goods will conform to the specifications and other requirements set forth herein. Buyer may (but shall not be obligated to) inspect all Goods ordered hereunder at all times and places, including during the period of manufacture. All Goods are subject to final inspection and acceptance anytime up to 18 months after delivery to Buyer. Buyer’s use or consumption of Goods, and Buyer’s payment therefor, shall not be deemed a waiver of acceptance nor a bar to asserting a claim against Seller. 

4. Product Warranties: (a) Seller warrants that the Goods: (i) will be fit and sufficient for the purpose intended; (ii) will be new and of merchantable quality and free from any and all defects, including defects in material and design; (iii) will conform with all representations, descriptions, samples, drawings, plans, specifications, designs and other data supplied by Seller or listed on the front side of this Order; (iv) will be conveyed with full legal tile not subject to any liens, encumbrances or claims in favour of any third party; (v) will have been produced in compliance with all applicable laws, rules and regulations; and (vi) will not infringe the intellectual property rights of third parties. (b) All warranties in connection with such sale will survive Buyer’s acceptance, use and/or payment and will extend to Buyer and its customers for a minimum period of 12 months. The Seller’s warranty period shall be extended by the time during which any of the goods supplied were out of service by reason of defects, which Seller is required to repair or replace or remedy due to infringement (refer to section 6). 

5. Product Indemnification: Seller will indemnify and hold harmless Buyer, its officers, employees, agents, successors, assigns, customers, and users of its products from and against any and all losses, expenses, damages, claims, suits and liabilities (including recall, repair and replacement expenses and other incidental and consequential damages; court costs and attorneys’ fees) arising as a result of: 1) actual or alleged breach of any warranties or other terms contained herein or arising under any claims, of any nature, made by any person and premised on either an actual or alleged defect in the Goods, or 2) arising out of any act or omission of Seller, its agents, employees or subcontractors while on, or affecting, any premises of Buyer. At Buyer’s request, Seller will assume promptly full responsibility for the defense of any action described in this paragraph which may be brought or threatened by a third party against Seller and/or Buyer. 

6. Infringement Indemnification: Seller will indemnify and hold harmless Buyer, its officers, employees, agents, successors, assigns, customers and users of its products from and against any and all losses, expenses, damages, claims, suits, royalties and liabilities (including incidental and consequential damages, court costs and attorneys’ fees) arising as a result of any claim that the manufacture, use, sale or resale of any Goods infringes or misuses any patent, license, utility model, industrial design, copyright, or other intellectual property right in any country. Seller will, when requested by Buyer, defend any action or claim of such infringement or misuse at its own expense. If the sale and/or use of the Goods is enjoined or, in Buyer’s sole judgment, is likely to be enjoined, Seller will, at Buyer’s election and Seller’s sole expense, either procure for Buyer the right to continue using such Goods, or replace same with equivalent non-infringing goods, or modify such Goods so they become non-infringing, or remove same and refund the purchase price, including transportation, installation, removal and other charges incidental thereto. 

7. Rights to Repair Defects or Mitigate Consequence. If any defects are not repaired or defective goods are not replaced promptly, Buyer may proceed to repair or replace same or to have same repaired or replaced at Seller’s expense, acting reasonably in good faith, without prejudice to any other rights which Buyer may have. In urgent circumstances, Buyer may take immediate steps to mitigate the consequences of any defect or to repair or replace defective goods at Seller’s expense subject to prior notification to Seller.

8. Changes: Buyer may by a written Order change drawings, designs, specifications, materials, packing, time and place of delivery or method of transportation. If any such change increases or decreases the cost or time required for Seller’s performance hereunder, an equitable adjustment will be made and this Order will be modified in writing accordingly. No change to design, raw materials, processes, procedures or production location is to be made by Seller without written authorization by Buyer. 

9. Force Majeure: Any delay or failure of either Buyer or Seller to perform its obligations hereunder shall be excused if, and to the extent that it is caused by an event or occurrence beyond the reasonable control of the party and without its fault or negligence, such as by way of example and not by way of limitation, acts of God, actions by any governmental authority (whether valid or invalid), fires, floods, windstorms, explosions, riots, natural disasters, declared or undeclared wars, acts of domestic or international terrorism or any threat of such acts, sabotage, labor problems (including lockouts, strikes and slow downs), inability to obtain power, material, labor, equipment or transportation, or court injunction or Order. During the period of such delay or failure to perform by Seller, Seller shall provide Buyer with prompt written notice of such delay (including a description of the cause of the event or circumstance, an estimate of the duration of the delay and a statement regarding the remedial steps that are being undertaken to resume performance and Seller’s interim allocation plans, if any, for the supply of Goods during the delay). During such period, Buyer, at its option, may purchase goods from other sources and reduce its schedules to Seller by such quantities, without liability to Seller, or have Seller provide the goods from other sources in the quantities and at the delivery times requested by Buyer and at the price set forth in this Order. If the delay lasts more than thirty (30) days or Seller does not provide adequate assurance that the delay will cease within thirty (30) days, Buyer may immediately cancel the Order without liability. 

10. Termination for Convenience:(a) Buyer may terminate this Order or any part of it for its convenience by written notice to Seller. Upon receipt of notice of termination, Seller will immediately stop all work hereunder and cause any of its suppliers or subcontractors to cease such work. Buyer will pay Seller for agreed reasonable costs incurred by the Seller upon receipt of notice of termination. (b) In no event will Buyer be liable for amounts in respect of unamortized depreciation, cost of capital, anticipated profits, lost profits, interest expense or other consequential damages. Buyer will not pay for any work done after Seller’s receipt of notice of termination, nor for any costs incurred by Seller’s suppliers or subcontractors which Seller could reasonably have avoided. 

11. Termination for Cause: Buyer may terminate this Order or any part hereof for cause in the event of a Default by Seller. “Default” means (i) Seller’s failure to comply with any of the terms and conditions of this Order; (ii) Seller’s failure to give Buyer, upon request, reasonable assurances of Seller’s future performance; (iii) insolvency, bankruptcy, liquidation or dissolution of Seller; or (iv) any other event which causes reasonable doubt as to Seller’s ability to render due performance hereunder. 

12. Confidentiality of Proprietary Information: Seller will consider all information furnished by Buyer hereunder (including drawings, specifications, or other documents prepared by Seller for Buyer in connection with this Order) to be confidential and will not disclose any such information to any other person, or use such information itself for any purpose other than performing this Order, unless Seller obtains Buyer’s prior written permission. Seller will not advertise or publish the fact that Buyer has contracted to purchase Goods from Seller, or disclose any information relating to the Order without Buyer’s written permission. 

13. Insurance: Seller will maintain and require its subcontractors to maintain (i) general liability and property damage insurance, including contractual liability (both general and vehicle) in amounts sufficient to cover obligations set forth above, but in no event less than Cdn $2 million per occurrence or such additional amount as Buyer specifies; and (ii) workers’ compensation and employer’s liability insurance covering all employees engaged in the performance of this Order for claims arising under any applicable workers’ compensation, occupation disease or health and safety laws and/or regulations. The existence and policy limits of any insurance shall not limit, reduce or alter any obligations of Seller under any indemnity. 

14. Buyer’s Property: (a) Buyer will retain title to any property Buyer furnishes to Seller. Seller will not alter or use such property for any purpose other than that specified by Buyer or for any other person without the prior written consent of Buyer. Seller will return such property at any time upon request of Buyer. 

15. Compliance with Laws and Other Standards: (a) In the performance of this Order, Seller will fully comply with all applicable laws, regulations and rules of governmental agencies and authorities (national, provincial and local) and will hold Buyer harmless from any liability resulting from Seller’s failure to so comply. Without limiting this obligation, Seller shall provide all Safety Data Sheets and similar information for any Goods, substances or any ingredients where relevant, provided under this Order where required by law. (b) Additionally, in the performance of this Order, Seller shall comply with the International Labor Organization’s Fundamental Principles & Rights at Work and associated Conventions. 

16. Taxes: Seller’s prices will be exclusive of any federal or provincial sales, use or excise taxes levied upon, or measured by, the sale, the sales price, or use of the Goods. Seller will list separately on its invoice any such tax lawfully applicable to the Goods and payable by Buyer with respect to which Buyer does not furnish to Seller lawful evidence of exemption. 

17. Set Off: All claims for money due or to become due from Buyer will be subject to deduction or set off by Buyer for any counterclaim arising from any transaction with Seller. 

18. Payments: Buyer will pay the prices stipulated on this Order for Goods delivered and accepted, less deductions, if any, as herein provided, but only upon submission by Seller of an invoice. The prices for Goods will not be subject to any variation without the prior written consent of Buyer. Unless otherwise specified in the Order, Buyer will pay for partial deliveries accepted by the Buyer. Unless otherwise specified in the Order, Buyer will make payment for Goods within 30 days following date of invoice. In accordance with the Regulation 105 (of the Canada Revenue Agency) and the section 1015R18 (from the Taxation Act of Revenue Québec), Nano One shall withhold 15% and 9% of any payment made to a non-resident that rendered services in Canada and Québec, respectively. For more information, please refer to www.cra-arc.gc.ca and www.revenuquebec.ca/en, or contact us. 

19. Remedies: The rights and remedies provided Buyer herein are cumulative and in addition to any other remedies provided by law. Buyer’s waiver of a breach of any provision hereof will not constitute a waiver of any other breach. 

20. Severability: Any provision of this Order which is finally determined to be unlawful will be deemed severed from this Order and every other lawful provision of this Order will remain in full force and effect. Seller and Buyer shall replace such unlawful provision by a valid one which reflects as closely as possible their original intentions. 

21. Assignments and Subcontracting: No part of this Order may be assigned or subcontracted by Seller without the prior written approval of Buyer. If Seller is authorized to use subcontractors, Seller will obtain from each such subcontractor rights and obligations no less favorable to Buyer than the provisions of this Order. Buyer shall be entitled to assign or subcontract the Order, in whole or in part, to any third party in its own discretion. 

22. Governing Law: This Order will be governed by the laws of the Province within Canada in which the Goods are shipped to Buyer’s location, and the United Nations Convention on Contracts for the International Sale of Goods shall not apply. The parties hereby stipulate irrevocably that they hereby submit to the jurisdiction of the courts in such Province where Buyer’s facility is located and for all purposes hereby waive all challenges to the jurisdiction of such courts. 

23. Entire Agreement: Buyer and Seller agree that, notwithstanding the prior or subsequent use by Seller of any Order form, invoice or other document containing printed terms or conditions, they are contracting solely on the basis of this Order, which contains the entire understanding of the parties and is intended as a final expression of their agreement and a complete statement of the terms thereof, and may not be amended, modified or otherwise supplemented unless such amendments, modifications or supplements are in writing and signed by Buyer’s authorized representative. 

24. Language: Buyer and Seller have required that this Order and all documents relating thereto be in the English language.