Purchase Order Terms and Conditions

Last updated on 31.01.24

1. General Conditions: All purchases of goods (the “Goods”) or services (the “Services”) specified on the face of this purchase order by Nanometrics Inc. (“Nanometrics”) from the supplier to whom the purchase order is addressed (the “Seller”), shall be governed by and shall have an order of precedence as follows: (a) any existing signed agreement or signed statement of work between the parties, referenced on the front of this purchase order, (b) Nanometrics’ specification document (if any), (c) these purchase order terms and conditions, and lastly (d) any other documents issued and attached by Nanometrics (‘collectively, an “Order”). The Order constitutes an offer by Nanometrics to purchase the Goods/Services which shall be considered accepted by the Seller upon the earlier of: (a) Seller’s commencement of work, or (b) Seller’s confirmation, or (c) expiry of two (2) business days from the date of Nanometrics’ issue of the Order, unless otherwise rejected in writing within such time. Nanometrics rejects any additional or inconsistent terms and conditions issued by the Seller at any time.

2. Delivery Date and Location: Seller shall perform the Services or deliver the Goods on the dates specified in this Order or as otherwise agreed in writing by the parties (the “Delivery Date”), time being of the essence. Seller shall promptly notify Nanometrics of any anticipated or actual delays of its obligations under this Order, and the parties agree to discuss a recovery plan. If Seller fails to meet a Delivery Date, Nanometrics may, without liability to Seller and in addition to Nanometrics’ other rights or remedies: (a) terminate the Order, in whole or in part, by providing written notice to Seller; (b) expedite shipment at the sole expense of Seller; and, (c) purchase substitute goods or services and charge Seller with any difference. Further, Seller shall indemnify Nanometrics against any losses, claims, damages, and reasonable expenses directly attributable to Seller’s failure to meet the Delivery Date. Unless otherwise instructed by Nanometrics, all Goods shall be delivered to the address specified in this Order during local business hours.

3. Packing and Shipment: Seller agrees to properly pack, label and deliver the Goods in accordance with applicable industry standards, laws, and in accordance with the terms on the face of this Order. Seller shall give written notice of shipment to Nanometrics when the Goods are delivered to a carrier for transportation. Seller shall promptly provide Nanometrics a full set of original copies of air waybill/bills of lading, an up-to-date certificate of origin, packing list, commercial invoice and/or all other shipping documents for each shipment in accordance with Nanometrics’ instructions. The Order number must appear on all above referenced documents and correspondence pertaining to the Order.

4. Title and Risk of Loss: Without limiting the provisions of Section 5, title to Goods shall pass to Nanometrics upon its acceptance and risk of loss passes to Nanometrics in accordance with the Incoterm® stated on the face of this Order, and Seller shall bear all risk of loss or damage to the Goods until such time.

5. Inspection and Acceptance: Nanometrics has the right, at any time, to inspect or test all or a portion of the Goods or Services, including to enter any plant, warehouse or other premises under Seller’s control. Where specific tests are defined by Nanometrics, acceptance shall be subject to completion of the tests to the satisfaction of Nanometrics. Where no specific tests are defined by Nanometrics then acceptance shall occur upon the earlier of: (a) Nanometrics’ written confirmation, or (b) twenty-eight (28) days following completion of delivery. If Nanometrics rejects any portion of the Goods or Services, Nanometrics has the right to: (a) rescind the Order in part or in its entirety; (b) accept the non-conforming Goods or Services at a reasonably reduced price; (c) reject the Goods or Services and require immediate replacement or reperformance of said Goods or Services within a timeframe compatible with Nanometrics’ other commitments or the initial Order conditions, at Seller’s expense; or, (d) procure similar goods or services from a third party and charge Seller the cost and administration fees thereof. Any inspection, testing or other action by Nanometrics under this Section shall not reduce or otherwise affect Seller’s obligations under the Order, or otherwise impose an obligation on Nanometrics. Payment for non-conforming Goods or Services shall not constitute an acceptance thereof, limit or impair Nanometrics’ rights under this Order.

6. Price: The price of the Goods or Services is the price stated in the Order (the “Price”), and is the maximum amount payable by Nanometrics. Unless otherwise specified in the Order, the Price shall be considered all inclusive covering without limitation all insurances, taxes, duties, fees and other costs to supply the Goods or Services. No increase in the Price is effective, whether due to increased material, labour or transportation costs or otherwise, without Nanometrics’ prior written consent.

7. Payment: Unless otherwise specified on the face of the Order, Nanometrics shall pay, in the currency specified in the Order, all properly invoiced amounts due to the Seller within sixty (60) days after Nanometrics’ receipt of such invoice, except for any amounts disputed by Nanometrics in good faith. The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under the Order notwithstanding any such dispute. Without prejudice to any other right or remedy it may have, Nanometrics reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Nanometrics to Seller.

8. Warranties: Unless otherwise specified on the face of the Order, Seller warrants to Nanometrics that for a period of twelve (12) months from completion of delivery, Goods will: (a) be free from any defects in workmanship, material, and design; (b) conform to applicable specifications, and other Nanometrics requirements; (c) be merchantable and fit for intended purposes; and, (d) be free and clear of all liens or other encumbrances. Seller warrants for a period of three (3) months from completion of delivery, that all Services shall conform with all specifications and Nanometrics requirements. Without prejudice to any of Nanometrics’ other rights or remedies, if Nanometrics gives Seller notice of non-compliance with this Section, Seller shall promptly, at its own expense, replace or repair the Goods, and/or re-perform the Services. Notwithstanding the above, the general execution of the Order shall follow professional workmanlike practices, conform to any policies issued by Nanometrics, and shall be performed by suitably qualified and experienced personnel.

9. Intellectual Property: Seller further warrants to Nanometrics that at all times, the Goods and Services (including any deliverable, product or result from the Services and any related materials, data, or documentation (collectively, the “Deliverables”)) will not misappropriate or infringe any third party intellectual property rights. All intellectual property rights in and to each Deliverable shall vest in Nanometrics free and clear of all liens and encumbrances upon creation. To the extent that any Deliverables contain any intellectual property of Seller, Seller hereby grants to Nanometrics a worldwide, royalty-free, non-exclusive, transferable, perpetual license to use, copy, modify and distribute such intellectual property as part of the Deliverables. Seller agrees to provide to Nanometrics all assistance reasonably requested to effect the rights described herein.

10. Indemnification and Liability: Seller shall defend, indemnify, and hold harmless Nanometrics and its affiliates and their respective directors, officers, shareholders, and personnel and Nanometrics’ customers (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, or expense, including reasonable legal and professional fees (collectively, “Losses”) arising from (a) the Goods or Services, (b) Seller’s negligence, misrepresentation, wilful misconduct, (c) breach of the Order, (d) employment or labour claims from Seller’s or their subcontractor’s personnel; or (e) third party intellectual property claim. In no event shall Seller enter into any settlement without Nanometrics’ prior written consent. In no event will Nanometrics be liable to Seller for any consequential, indirect, incidental, exemplary, special, or punitive damages, including any damages for revenue or profit, or loss of business opportunity, regardless of how such damages are caused.

11. Insurance: Seller and its subcontractors shall obtain and maintain appropriate insurance coverages to meet its obligations under this Order, applicable laws and any prime contract flow down requirements stated by Nanometrics.

12. Compliance: Throughout Seller’s performance of this Order, Seller and its subcontractors shall comply with all prime contract flow down requirements stated by Nanometrics, applicable laws, regulations, codes and government directives, including, without limitation, those relating to: data and privacy; sanctions, import, export, and re-export laws and regulations; and Nanometrics’ Code of Business Conduct and Ethics which can be made available upon request and/or located at https://nanometrics.ca/code-of-business-conduct-ethics.

If Goods and Services are incorporated by Nanometrics into products and services sold under a federal contract or subcontract, those applicable procurement regulations that are required by federal statute or regulation to be inserted into contracts or subcontracts shall be deemed to apply to the Order, this may include without limitation U.S. government contracts and subcontracts with flow down FAR, DFAR, ITAR requirements. Seller will obtain and maintain in effect all the licenses, permissions, exemptions, approvals, authorizations, consents, and permits that it needs to carry out its obligations under the Order.

13. Sourcing: The Seller represents at the time of Order issuance that there are no elements within its supply chain that are subject to sole and/or single sourcing. Throughout the course of performance of the Order, including the warranty period, the Seller warrants that it shall periodically monitor for any supply chain continuity risks, including promptly advising Nanometrics as soon as it becomes aware of any emerging sole source situation relating to the Goods or Services it delivers.

14. Termination: Nanometrics may terminate this Order for its convenience, in whole or in part, at any time on thirty (30) days’ prior written notice to Seller. In addition to any remedies that may be provided under these Terms, Nanometrics may terminate this Order at any time for cause, with immediate effect upon written notice to the Seller if Seller (a) has not performed any of its obligations set out in the Order or (b) becomes insolvent, is generally unable to pay its debts, files a petition for bankruptcy or has commenced against it proceedings relating to bankruptcy, or any other arrangement for the benefit of creditors. If Nanometrics terminates the Order for any reason, Seller’s sole remedy is payment for the Goods or Services received and accepted by Nanometrics up to the effective date of termination.

15. Confidential Information: All information or trade secrets of Nanometrics, disclosed by or on behalf of Nanometrics to Seller are confidential, solely for the use of performing the Order, shall be maintained in strict confidence by Seller using the same degree of care it would use to protect their own confidential information, and may not be disclosed or copied unless authorized by Nanometrics in writing. Upon Nanometrics’ request, Seller shall promptly return all documents and other materials received from Nanometrics. Nanometrics shall be entitled to injunctive relief for any actual and/or reasonably anticipated violation of this Section.

16. Force Majeure: Neither party shall be liable to the other for any delay or failure in performing its obligations under the Order to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party’s fault or negligence, and which by its nature could not have been foreseen or unavoidable by such party (“Force Majeure Event”). Seller’s economic hardship or changes in market conditions are not considered Force Majeure Events. Seller shall use best efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under the Order. If a Force Majeure Event prevents Seller from carrying out its obligations under the Order, Nanometrics may: (a) suspend its obligation to pay for any impacted Goods or Services; (b) purchase Goods or Services from other sources and reduce its schedules to Seller by such quantities, without liability to Seller or have Seller provide the Goods or Services from other sources in quantities and at times requested by Nanometrics and at the price set forth in the Order; or (c) terminate this Order immediately by giving written notice to Seller if the Force Majeure Event continues for a period of more than fifteen (15) business days.

17. Notices: All notices, consents, demands, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses in this Order. All Notices shall be delivered by personal delivery, recognized overnight courier (with all fees prepaid), email (with confirmation of email transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid), and shall be deemed valid upon receipt of the receiving party.

18. Miscellaneous: Amendment. No change to this Order is binding upon Nanometrics unless it is in writing, specifically states that it amends this Order, and is signed by an authorized representative of Nanometrics. Waiver. No waiver by either party of any of the provisions of the Order shall be effective unless explicitly set forth in writing and signed by the other party. No waiver of any right or remedy in respect to any occurrence will be deemed a waiver of such right or remedy in respect of such occurrence on another occasion. Assignment. Seller shall not transfer, or subcontract any of its rights or obligations under the Order without the prior written consent of Nanometrics. Seller shall at all times remain fully responsible for the performance of all its obligations under this Order irrespective of any consent to subcontract. Relationship of the Parties. The relationship between the parties is that of independent contractors and this Order does not create or imply a joint venture, partnership, agency, principal-agent or employment relationship between the parties. This Order is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy by reason of this Order. Governing Law. This Order shall be construed according to the laws of the Province of Ontario and the federal laws of Canada without regard to its conflict of laws provision, and each party hereto submits to the exclusive jurisdiction of courts sitting in Ottawa, Ontario for any action or proceeding permitted under the Order. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Cumulative Remedies. The rights and remedies under this Order are cumulative and not in substitution for any other rights and remedies available at law or in equity or otherwise. Severability. If any term or provision of this Order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Order or invalidate or render unenforceable such term or provision in any other jurisdiction. Survival. Provisions of this Order which by their nature should continue to apply will remain in force after any termination or expiration of this Order. 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.