Purchase Order Terms and Conditions

Each Purchase Order placed by the Buyer for Goods is subject to these standard purchase terms (the “Standard Purchase Terms”) and the terms of the applicable Purchase Order and is conditional upon the Supplier’s agreement to such terms. Supplier shall be deemed to have agreed to be bound by such terms by accepting the Purchase Order.

1. Definitions. In these Standard Purchase Terms, the following definitions apply:
   1. “Agreement” means the agreement between Supplier and Buyer for the purchase and sale of Goods.
   2. “Buyer” means Real Food for Real Kids Inc.
   3. “Deliverable” means the Goods referred to in a Purchase Order.
   4. “Delivery Date” means the date of delivery for Goods as specified in a Purchase Order.
   5. “Delivery Point” means the location identified by Buyer in the Purchase Order to which the Supplier is to deliver Goods, or such other delivery area or point which is subsequently specified in writing by Buyer.
   6. “Goods” means the goods that are required to be delivered by Supplier pursuant to a Purchase Order, and include all materials, component parts, packaging and labeling of such goods and includes both Perishable and Non-Perishable Goods.
   7. “Intellectual Property Rights” means all intellectual and industrial property rights and rights of a similar nature including all rights in and to, patents including all issued patents and pending applications therefore and patents which may be issued therefrom (including divisions, reissues, re-examinations, continuations and continuations-in-part); trade-marks; copyrights; industrial design rights; rights pertaining to trade secrets and confidential information; publicity rights; personality rights; moral rights; and other intellectual property rights whether registered or not and all applications, registrations, renewals and extensions pertaining to the foregoing.
   8. “Perishable Goods” means Goods that are likely to deteriorate in quality and/or value and shall include, but is not limited to, fruits, vegetables, dairy products, meat etc.
   9. “Non-Perishable Goods” means Goods that are not Perishable Goods. 
   10. “Purchase Order” means the purchase order between Buyer and Supplier for the purchase and sale of Goods, to which these Standard Purchase Terms are attached and/or incorporated by reference.
   11. “Specifications” means the requirements, attributes and specifications for the Goods that are set out in the applicable Purchase Order. Specifications also include: (a) documentation published by Supplier relating to the Goods; (b) operational and technical features and functionality of the Goods; and (c) Buyer business requirements that are expressly set out in a Purchase Order.
   12. “Supplier” means the party indicated on the face page of the Purchase Order that is contracting with Buyer for the purchase and sale of Goods.
   13. “Supplier Proposal” means any acknowledgement, estimate, quote, offer to sell, invoice, or proposal of Supplier relating to the supply of Goods to Buyer, including any delivered in connection with a request for quotations, request for proposal or similar process initiated by Buyer.
   14. “Warranty Period” means in respect of any Non-Perishable Goods, the longer of: (i) the express written warranty period provided by Supplier for the Goods; and (ii) the period commencing on the date of Acceptance of such Goods and ending on the date that is one (1) year from that date.  In respect of any Perishable Goods, the longer of: (i) the express written warranty period provided by Supplier for the Goods; and (ii) the period commencing on the date of Acceptance of such Goods and ending on the date that is thirty-five (35) days from that date.

2. Agreement. Our Agreement with respect to the purchase and delivery of Goods is comprised of: (a) these Standard Purchase Terms; (b) the applicable Purchase Order; (c) any Specifications or other documents expressly referenced in the Purchase Order; and (d) such other ancillary agreement(s) entered into in writing by the Buyer and Supplier with respect to the Goods (the “Ancillary Agreements”). Any reference in the Purchase Order to any Supplier Proposal is solely for the purpose of incorporating the descriptions and specifications of the Goods contained in the Proposal, and only to the extent that the terms of the Supplier Proposal do not conflict with the descriptions and Specifications set out in the Purchase Order and these Standard Purchase Terms. Buyer’s acceptance of, or payment for, goods will not constitute Buyer’s acceptance of any additional or different terms in any Supplier Proposal, unless otherwise accepted in writing by Buyer. If there is any conflict or inconsistency between the documents constituting the Agreement, then unless otherwise expressly provided, the documents will rank in the following order (i.e. Specifications, Ancillary Agreements, Purchase Order, and Standard Purchase Terms).

3. Inspection; Acceptance and Rejection.
   1. All shipments of Goods shall be subject to the Buyer’s right of inspection. With regards to the delivery of Perishable Goods, the Buyer shall have thirty (30) days (the “Perishable Inspection Period“) following the delivery of the Goods at the Delivery Point to undertake such inspection. With regards to Non-Perishable Goods the Buyer shall have three (3) months (the “Non-Perishable Inspection Period”) following the delivery of the Non-Perishable Goods at the Delivery Point to undertake such inspection. In either case, upon such inspection, Buyer shall either accept (“Acceptance “) or reject the Goods. The Buyer shall have the right to reject any Goods that are delivered in excess of the quantity ordered or are damaged or defective. In addition, Buyer shall have the right to reject any Goods that are not in conformance with the Specifications or any term of this Agreement. Transfer of title to Buyer of Goods shall not constitute Buyer’s Acceptance of those Goods. Buyer shall provide Supplier within the Perishable Inspection Period and/or Non-Perishable Inspection Period notice of any Goods that are rejected, together with the reasons for such rejection. 
   2. If Buyer does not provide Supplier with any notice of rejection within the Perishable Inspection Period and/or Non-Perishable Inspection Period, then Buyer will be deemed to have provided Acceptance of such Goods. Buyer’s inspection, testing, or Acceptance or use of the Goods hereunder shall not limit or otherwise affect Supplier’s warranty obligations hereunder with respect to the Goods, and such warranties shall survive inspection, test, Acceptance and use of the Goods. 
   3. Upon giving the Supplier reasonable prior notice, the Buyer may inspect the Supplier’s production and warehousing facilities during normal business hours.
   4. In the event the Delivery Point is the Buyer’s customers, the Buyer’s customer may inspect the Goods after delivery and shall be deemed to have the Buyer’s right to accept or reject such Goods.  
   5. Until the Buyer has accepted the Goods, the Supplier retains the title to the Goods and any risk of loss or damage to them.
   6. If the Buyer rejects Goods, the Supplier shall at the Buyer’s option:
      1. refund or credit the Buyer with the unit prices of the rejected Goods and the reasonable expenses incurred by the Buyer in rejecting such Goods; or
      2. repair or replace the Goods.
   7. At Buyer’s option, rejected Goods shall be returned by Buyer to Supplier FOB (with freight and insurance) at Supplier’ sole expense or Supplier shall be required to arrange to have the Goods picked up.  Title to rejected Goods that are returned to Supplier shall transfer to Supplier immediately upon leaving Supplier’s Delivery Point and such Goods shall not be replaced by Supplier except upon written instructions from Buyer. Supplier shall not deliver Goods that were previously rejected on grounds of non-compliance with this Agreement unless delivery of such Goods is approved in writing in advance by Buyer and is accompanied by a written disclosure of Buyer’s prior rejection(s).

4. Inspection; Acceptance and Rejection.
   1. All shipments of Goods shall be subject to the Buyer’s right of inspection. With regards to the delivery of Perishable Goods, the Buyer shall have thirty (30) days (the “Perishable Inspection Period“) following the delivery of the Goods at the Delivery Point to undertake such inspection. With regards to Non-Perishable Goods the Buyer shall have three (3) months (the “Non-Perishable Inspection Period”) following the delivery of the Non-Perishable Goods at the Delivery Point to undertake such inspection. In either case, upon such inspection, Buyer shall either accept (“Acceptance “) or reject the Goods. The Buyer shall have the right to reject any Goods that are delivered in excess of the quantity ordered or are damaged or defective. In addition, Buyer shall have the right to reject any Goods that are not in conformance with the Specifications or any term of this Agreement. Transfer of title to Buyer of Goods shall not constitute Buyer’s Acceptance of those Goods. Buyer shall provide Supplier within the Perishable Inspection Period and/or Non-Perishable Inspection Period notice of any Goods that are rejected, together with the reasons for such rejection. 
   2. If Buyer does not provide Supplier with any notice of rejection within the Perishable Inspection Period and/or Non-Perishable Inspection Period, then Buyer will be deemed to have provided Acceptance of such Goods. Buyer’s inspection, testing, or Acceptance or use of the Goods hereunder shall not limit or otherwise affect Supplier’s warranty obligations hereunder with respect to the Goods, and such warranties shall survive inspection, test, Acceptance and use of the Goods. 
   3. Upon giving the Supplier reasonable prior notice, the Buyer may inspect the Supplier’s production and warehousing facilities during normal business hours.
   4. In the event the Delivery Point is the Buyer’s customers, the Buyer’s customer may inspect the Goods after delivery and shall be deemed to have the Buyer’s right to accept or reject such Goods.  
   5. Until the Buyer has accepted the Goods, the Supplier retains the title to the Goods and any risk of loss or damage to them.
   6. If the Buyer rejects Goods, the Supplier shall at the Buyer’s option:
      1. refund or credit the Buyer with the unit prices of the rejected Goods and the reasonable expenses incurred by the Buyer in rejecting such Goods; or
      2. repair or replace the Goods.
   7. At Buyer’s option, rejected Goods shall be returned by Buyer to Supplier FOB (with freight and insurance) at Supplier’ sole expense or Supplier shall be required to arrange to have the Goods picked up.  Title to rejected Goods that are returned to Supplier shall transfer to Supplier immediately upon leaving Supplier’s Delivery Point and such Goods shall not be replaced by Supplier except upon written instructions from Buyer. Supplier shall not deliver Goods that were previously rejected on grounds of non-compliance with this Agreement unless delivery of such Goods is approved in writing in advance by Buyer and is accompanied by a written disclosure of Buyer’s prior rejection(s).

5. Delivery of Perishable Goods.
   1. In addition to the provisions in Section 4, with regards to the transportation and the delivery of Perishable Goods it is the responsibility of the Supplier to:
      1. ensure that the Perishable Goods, packing slip and carrier manifest are clearly marked perishable and with an expiry date if applicable;
      2. use dry ice for the Perishable Goods as applicable; 
      3. provide the carrier with the necessary instructions for transportation;
      4. inform the contact for the Buyer, immediately upon departure of the Perishable Goods from the Supplier’s warehouse, by facsimile, telephone or email the following information: tracking number and expected arrival to destination;
      5. take all steps possible to ensure that if the Perishable Goods go through customs that they do so on an expedited basis, including issuing a pre-alert to the Buyer’s customs broker and fully completing a Canada Customs Invoice (“CCI”) or commercial invoice. The CCI or commercial invoice must contain the Purchase Order number and non-generic description of the Perishable Goods. The CCI forms and instructions can be located at https://www.cbsa-asfc.gc.ca/publications/forms-formulaires/ci1-eng.html. Pre-alert consists of a copy of the commercial documents with tracking number forwarded via email or facsimile to the customs broker. 
      6. Replace all perishable goods within agreed upon time subject to the carrier’s policy; and
      7. ensure that the Perishable Goods are signed off by the receiving department responsible for the Perishable Goods and request that the carrier endeavour to ensure that the Perishable Goods are off-loaded from the carrier’s vehicle and kept separate from Non-Perishable Goods also being off-loaded to prevent co-mingling and/or contamination.
   2. In the event that the Perishable Goods arrive at the Buyer in a less than satisfactory state, which shall be determined in the Buyer’s sole discretion, the Supplier shall, on notice:
      1. make arrangements to have the Perishable Goods returned to the Supplier at no expense to the Buyer;
      2. reissue and replace the spoiled Perishable Goods for the Buyer within a timeframe agreeable to the Buyer at no additional expense; and
      3. follow the above noted process in reissuing the Perishable Goods. When shipping re-issued or replacement Perishable Goods, the Canada Customs documentation must clearly indicate that the Perishable Goods are no charge replacement, and the value must be shown.

6. Price/Payment Terms.
   1. Prices for the Goods will be set out in the applicable Purchase Order. Price increases or charges not expressly set out in the Purchase Order shall not be effective unless agreed to in advance in writing by Buyer. 
   2. Suppliers will issue all invoices on a timely basis.
   3. Buyer shall have the right to withhold payment of any invoiced amounts that are disputed in good faith until the parties reach an agreement with respect to such disputed amounts and such withholding of disputed amounts shall not be deemed a breach of this Agreement nor shall any interest be charged on such amounts. 
   4. Notwithstanding the foregoing, Buyer agrees to pay the balance of the undisputed amounts on any invoice that is the subject of any dispute within the time periods specified in the invoice.

7. Taxes.
   1. Unless otherwise stated in a Purchase Order, all prices or other payments stated in the Purchase Order are exclusive of any taxes. Supplier shall separately itemize all applicable taxes each on each invoice and indicate on each invoice its applicable tax registration number(s). 
   2. Buyer will pay all applicable taxes to the Supplier when the applicable invoice is due. Suppliers will remit all applicable taxes to the applicable government authority as required by applicable laws. Notwithstanding any other provision of this Agreement, Buyer may withhold from all amounts payable to Supplier all applicable withholding taxes and to remit those taxes to the applicable governmental authorities as required by applicable laws.

8. Hazardous Materials. Supplier agrees to provide, upon and as requested by Buyer, to satisfy any applicable laws governing the use of any hazardous substances either of the following:
   1. all reasonably necessary documentation to verify the material composition, on a substance by substance basis, including quantity used of each substance, of any Goods, and/or of any process used to make, assemble, use, maintain or repair any Goods; or 
   2. all reasonably necessary documentation to verify that any Goods and/or any process used to make, assemble, use, maintain or repair any Goods, do not contain any particular hazardous substances specified by Buyer.

9. Legal Compliance; Workplace Safety. In carrying out its obligations under the Agreement, Supplier shall always comply with all applicable all federal, provincial, and municipal laws, regulations, standards, and codes. Supplier shall be at all times registered with the workplace safety and insurance board under the Ontario Workplace Safety and Insurance Act, 1997 and shall maintain its workers’ compensation accounts in good standing and provide Buyer with evidence of good standing upon request. Supplier shall obtain all applicable permits, licenses, exemptions, consents and approvals required for the Supplier to manufacture and/or distribute the Goods. The Supplier shall always also comply and ensure all persons for whom it is responsible shall comply with all of the Buyer’s policies, rules, regulations, restrictions, guidelines, directives and orders when on the Buyer’s land and premises.

10. Warranties
    1. All warranties in this Agreement survive after the Buyer has accepted the Goods.
    2. Product Warranties. Supplier warrants to Buyer that all Goods provided hereunder shall be: (i) of merchantable quality; (ii) fit for the purposes intended; (iii) unless otherwise agreed to by Buyer in writing, new; (iv) free from defects in design, material and workmanship; (v) in strict compliance with the Specifications; (vi) free from any liens or encumbrances on title whatsoever; (vii) in conformance with any samples provided to Buyer; and (viii) compliant with all applicable federal, provincial, and municipal laws, regulations, standards, and codes.
    3. Intellectual Property Warranty. Supplier further warrants to Buyer that all Goods (including any Deliverables) will not be in violation of or infringe any Intellectual Property Rights of any person.
    4. Manufacturer Warranties. Supplier shall assign to Buyer all manufacturer’s warranties for Goods not manufactured by or for Supplier and shall take all necessary steps as required by such third-party manufacturers to effect assignment of such warranties to Buyer.
    5. In the event of breach of any of the warranties in Section 10, and without prejudice to any other right or remedy available to Buyer (including Buyer’s indemnification rights hereunder), Supplier will, at Buyer’s option and Supplier’s expense, refund the purchase price for, or correct or replace the affected Goods, expediently, after notice by Buyer to Supplier of warranty breach. All associated costs, including costs of re-performance, costs to inspect the Goods, transport the Goods from Buyer to Supplier, and return shipment to Buyer, and costs resulting from supply chain interruptions, will be borne by Supplier. If Goods are corrected or replaced, the warranties in Section 10 will continue as to the corrected or replaced Goods commencing on the date of Acceptance of the corrected or replaced Goods by Buyer. If Buyer requests that the Goods are corrected or replaced and if Supplier fails to repair or replace the applicable Goods within the time periods required above, Buyer may repair or replace the Goods at Supplier’s expense.
    6. In the event that any Goods provided by Supplier to Buyer are subject to a claim or allegation of infringement of Intellectual Property Rights of a third party, Supplier shall, at its own option and expense, without prejudice to any other right or remedy of Buyer (including Buyer’s indemnification rights hereunder), promptly provide Buyer with a commercially reasonable alternative, including the procurement for Buyer of the right to continue using the Goods in question, the replacement of such Goods with a non-infringing alternative satisfactory to Buyer, or the modification of such Goods (without affecting functionality) to render them non-infringing.

11. Intellectual Property Rights. To the extent that any Goods contain any intellectual property of Supplier, Supplier hereby grants to Buyer a royalty-free and non-exclusive, license to reference any trademarks relating to such Goods on the Buyer’s website and/or the Buyer’s menu.  

12. Confidentiality. Supplier shall safeguard and keep confidential any and all information relating to Buyer obtained by it or provided to it by Buyer in connection with this Agreement and shall use such information only for the purposes of carrying out its obligations and or enforcing its rights under this Agreement.

13. Insurance. Supplier represents and warrants to Buyer that it has in place with reputable insurers such insurance policies in coverage amounts that would be maintained by a prudent supplier of goods similar to the Goods provided hereunder, including, as applicable, comprehensive commercial general liability insurance (including product liability coverage, all-risk contractors’ equipment insurance, and automobile liability insurance). In addition, Supplier will take out and maintain, at its own cost, such insurance policies and coverages as may be reasonably required by Buyer from time to time. Supplier will promptly deliver to Buyer, as and when requested, written proof of such insurance. If requested, Buyer will be named as an additional insured under any such policies. If requested by Buyer, such insurance will provide that it cannot be canceled, or materially changed so as to affect the coverage provided under this Agreement, without the insurer providing at least 30 days prior written notice to Buyer. 

14. Indemnities. Supplier shall indemnify, defend and hold harmless Buyer, its Affiliates, and their respective officers, directors, employees, consultants, and agents (the “Buyer Indemnified Parties“) from and against any claims, fines, losses, actions, damages, expenses, legal fees and all other liabilities brought against or incurred by the Buyer Indemnified Parties or any of them arising out of: (a) death, bodily injury, or loss or damage resulting from the use of, or any actual or alleged defect in the Goods, or from the failure of the Goods to comply with the warranties hereunder; (b) any claim that the Goods infringe or violate the Intellectual Property Rights or other rights of any person; (c) any intentional, wrongful or negligent act or omission of Supplier or any of its Affiliates or subcontractors; (d) Supplier’s breach of any of its obligations under this Agreement; or (e) any liens or encumbrances relating to any Goods.

15. Limitation of Liability. EXCEPT FOR SUPPLIER’S OBLIGATIONS UNDER SECTION 8 and 10(c), AND EXCEPT FOR DAMAGES THAT ARE THE RESULT OF THE NEGLIGENCE OR WILFUL MISCONDUCT OF A PARTY, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING ANY LOST PROFITS, DATA, GOODWILL, OR BUSINESS OPPORTUNITY FOR ANY MATTER RELATING TO THIS AGREEMENT.

16. Independent Contractors. Supplier will perform its obligations under the Agreement as an independent contractor and in no way will Supplier or its employees be considered employees, agents, partners, fiduciaries, or joint venturers of Buyer. Supplier and its employees will have no authority to represent Buyer or its Affiliates or bind Buyer or its Affiliates in any way, and neither Supplier nor its employees will hold themselves out as having authority to act for Buyer or its Affiliates.
17. Severability. If any provision of this Agreement is determined to be unenforceable or invalid for any reason whatsoever, in whole or in part, such invalidity or unenforceability shall attach only to such provision or part thereof and the remaining part thereof and all other provisions shall continue in full force and effect.

19. Waiver. No waiver of any provision of this Agreement shall be enforceable against that party unless it is in writing and signed by that party.

20. Assignment.
    1. This Agreement may not be assigned except by consent in writing signed by the Buyer, such consent not to be unreasonably withheld.
    2. Despite paragraph (a), either Party may assign its rights and obligations under this Agreement to a parent, subsidiary, sister or successor corporation which has agreed in writing to assume the assigning Party’s duties and liabilities under this Agreement.
    3. Subject to paragraphs (a) and (b), successors and permitted assignees of the Parties shall be bound by the terms of this Agreement and shall be entitled to receive all benefits conferred by it.
    4. Supplier’s permitted assignment or subcontracting of this Agreement or any part thereof will not release Supplier of its obligations under this Agreement, and it will remain jointly and severally liable with the assignee or subcontractor for any obligations assigned or subcontracted. 
    5. This Agreement shall ensure to the benefit of and be binding upon the parties and their respective legal representatives, permitted assigns or successors.

20. Cumulative Remedies. Subject to Section 15, the rights and remedies of the Buyer in this Agreement are cumulative and in addition to any other rights and remedies at law or in equity.

21. Survival. Any provision of this Agreement which expressly or by implication from its nature is intended to survive the termination or completion of the Agreement will continue in full force and effect after any termination, expiry, or completion of this Agreement.

22. Interpretation. The headings used in this Agreement and its division into articles, sections, schedules, exhibits, appendices, and other subdivisions do not affect its interpretation. Unless the context requires otherwise, words importing the singular number include the plural and vice versa; words importing gender include all genders. References in this Agreement to articles, sections, schedules, exhibits, appendices, and other subdivisions are to those parts of this Agreement. Where this Agreement uses the word “including,” it means “including without limitation,” and where it uses the word “includes,” it means “includes without limitation.

23. Governing Law. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. This Agreement shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein. The parties irrevocably attorn to the jurisdiction of the courts of Ontario in Toronto, which will have non-exclusive jurisdiction over any matter arising out of this Agreement.

24. Electrical/Electronic Components and Equipment. All electrical/electronic components or equipment must have Ontario provincial approvals such as the Electrical Safety Authority, CSA or ULC requirements and conform to the industry standards and all other legal requirements applicable to the Goods. 

25. Language. It is the express wish of the parties that this Agreement and any related documentation be drawn up in English. Il est de la volonté expresse des parties que cette convention ainsi que tout document connexe soient rédigés en langue anglaise.