1. Definitions
For the purpose of these Terms: (i) “Purchaser” shall mean the legal entity purchasing the goods (also known as products) or services as set out on the PO; (ii) “Supplier” shall mean the legal entity providing the goods or services as set out on the Purchase Order; (iii) “Terms” shall mean these standard and terms and conditions of purchase; (iii) “Order” shall mean a purchase order (“PO”) issued by the Purchaser, these Terms, any appendices, scope(s) of work, and any supplements provided by Purchaser thereto, and all specifications, and other documents Purchaser has incorporated by express reference (iv) Unless this Order is issued under a separate formal agreement mutually executed between the parties (the “Agreement”), these Terms shall govern any Order to which they are referenced or attached. Supplier shall provide Purchaser the services described in the Order (the “Services”) in accordance with these Terms, which Services shall be deemed to include the provisioning of all goods, equipment, personnel, supplies, consumables, superintendence, supervision, labour, installation, set-up, testing and such other work or materials necessary to complete the Services in a good and workmanlike manner.
2. Acceptance of Contract / Entire Agreement
This Order constitutes the entire agreement between the parties for the Services and no other terms or conditions which the Supplier has submitted or may submit to Purchaser shall in any way or under any circumstances apply, whether oral or in writing and whether contained in Supplier’s proposal, quotation or otherwise, save and except where the Supplier has provided warranties for the benefit of Purchaser in excess of those included in this Order. The Supplier agrees to be bound by and to comply with all terms set forth in this Order. If any provision of these Terms is invalid, unenforceable or inapplicable, the balance of the Terms shall continue to have force and effect notwithstanding the invalidity, unenforceability, or inapplicability of that provision. Acknowledgement of this Order, including without limitation by beginning performance of the work called for by this Order, shall be deemed acceptance of this Order. ANY ATTEMPTED ACKNOWLEDGEMENT OF THIS ORDER CONTAINING TERMS INCONSISTENT WITH OR IN ADDITION TO THE TERMS OF THIS ORDER IS NOT BINDING UNLESS EXPLICITLY ACCEPTED BY PURCHASER IN WRITING.
3. Independent Contractor
The parties hereto are independent contracting parties and nothing in this Order shall make either party the agent or legal representative of the other for any purpose whatsoever, nor shall it grant either party any authority to assume or to create any obligation on behalf of or in the name of the other.
4. Governing Law
The Order shall be governed exclusively by, and construed and enforced in accordance with the laws of British Columbia and the laws of Canada without giving effect to the principles of conflict of laws. Each Party hereby irrevocably submits and attorns to the exclusive jurisdiction of the courts of the Province of British Columbia and the courts having appellate jurisdiction therefrom; provided however, that nothing herein will affect a Party’s right to record and enforce a judgement in any jurisdiction outside the Province of British Columbia. The application of the United Nations Convention for the International Sale of Goods is excluded.
5. Modification / Waiver / Changes
No modification or any claimed waiver of any of the provisions of this Order shall be binding unless made in writing and signed by the party against whom such modification or waiver is sought to be enforced. Purchaser at any time shall have the right to make changes in this Order, including without limitation changes to drawings, designs, or specification; quantity, method of shipment or packing; delivery schedule or place of delivery, and work schedule, shifts, starting time and starting date. If any such change causes an increase or decrease in the cost of goods or services, or the time required for the performance of, any work under this Order, Supplier shall make a request in writing for an equitable adjustment within ten (10) business days of such change, and Supplier shall either make an equitable adjustment in the contract price or delivery schedule, or both, or shall withdraw such change, and this Order shall be modified in writing accordingly. If Supplier shall fail to make a request for an equitable adjustment within ten (10) business days, such right shall be waived. Nothing in this section, including any disagreement with the Purchaser as to any claimed adjustment, shall excuse Supplier from proceeding with the Order as changed.
6. No Exclusivity
Supplier acknowledges that it is not the exclusive supplier of the Services, and that Purchaser may, from time to time, purchase goods and related services similar or identical to the Services from other suppliers at Purchaser’s sole and arbitrary election. Purchaser has no obligation to place any orders with Supplier, and the actual quantity of goods or services to be purchased shall be determined by Purchaser acting in its sole discretion. Any forecasts supplied by Purchaser from time to time are estimates only and Supplier is solely responsible for managing Supplier’s raw material, work in progress, and inventory.
7. Assignment and Subcontracting
Supplier shall not assign this Order or subcontract the services to be provided under this Order without the prior consent of Purchaser in writing. Supplier shall not subcontract the whole or any part of its obligations hereunder without first receiving the written consent from Purchaser, which consent may be withheld in Purchaser’s sole discretion. Where such consent is granted, Supplier shall not be released or relieved from any obligations or liabilities of Supplier in this Order nor shall Purchaser be prevented from pursuing any legal or equitable remedies it may be entitled to. Supplier shall remain liable and responsible to, and shall indemnify Purchaser for the acts and omissions of any subcontractor and shall ensure that any subcontractor strictly adheres to all terms of this Order, including any safety and security requirements referred to in this Order. When requested by Purchaser, Supplier shall provide Purchaser with all details concerning any and all subcontracted work. This Order shall enure to and be binding upon the parties and their respective heirs, executors, and permitted assigns.
8. Compliance with All Laws
Supplier shall comply with, and shall ensure its employees, agents, and subcontractors comply with, all applicable federal, provincial, state, and municipal laws, regulations, by-laws, and all other applicable orders, rules, and regulations of any authority having jurisdiction respecting the safety, handling, packaging, labeling, import, export, sale, shipping, and use of the goods to be produced or sold and the services to be rendered for the performance of this Order; including, without limitation, all applicable environmental laws, all applicable employment standards codes, workers’ compensation legislation or equivalent legislation, all dangerous goods legislation, and all workplace hazardous materials legislation. Supplier shall acquire and keep in force all required permits and certificates.
9. Confidentiality
This Order is confidential between the Purchaser and the Supplier, and it is agreed by the Supplier that none of the information disclosed to Supplier in connection herewith shall be published or disclosed to any third party without Purchaser’s written permission. Supplier acknowledges that during the course of performance of this Order, it may learn confidential and proprietary information regarding Purchaser’s business costs, practices, procedures, operations or plans. Information disclosed to Supplier will be deemed confidential and proprietary unless (i) it is already known to Supplier prior to such disclosure, (ii) it is already public information or otherwise generally available other than by reason of Supplier’s breach or deemed breach of the confidentiality undertakings set forth herein, (iii) it is subsequently disclosed to Supplier by a third person who is not known to Supplier to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to Purchaser or (iv) it is evidenced to have been developed independently by Supplier. All other information exchanged is deemed to be confidential and proprietary. Except as required by law, statute or regulation, Supplier shall not disclose confidential and proprietary information to any third person or entity or use such information for any purpose other than performing this Order without obtaining the prior written consent of Purchaser. Further, Supplier agrees to limit the number of copies of such information and to disclose such information only to those persons within its organization who have a need to know for the performance of this Order.
10. Indemnification
Supplier shall indemnify, defend, and save harmless Purchaser, its directors, officers, employees, affiliates, representatives, and agents, or any of them, from and against any and all claims, liabilities, damages (including, without limitation, consequential damages), losses, settlements, costs, expenses and fees (including reasonable legal fees and expenses): (i) for injuries to, or death of, any and all persons, and for loss of or damage to property based in whole or in part upon a defect in the products or the work performed or from any act or omission of Supplier, its agents, employees and subcontractors, regardless of whether or not such claims are caused in part by a party indemnified under this paragraph; (ii) arising from a breach of any warranty, or failure to perform any covenant, of Supplier; (iii) any alleged or actual failure of the products or the work performed to conform to the requirements of any federal, state, provincial or local law, rule, regulation, standard or ordinance; or (iv) resulting from the release, discharge, seepage or other escape of any substance including chemicals, hazardous or toxic materials, substances, pollutants, contaminants or wastes, whether liquid, gaseous, micro-organic, or of any other nature, which are attributable to Supplier’s performance of its obligations in this Order; and (v) for infringement, actual or alleged, whether domestic or foreign, patent, patent application, trade secret, copyright or similar right or claim of unfair competition arising out of the purchase, use or sale by Purchaser of the products, goods, material, and equipment supplied by the Supplier under this Order. Supplier hereby covenants that Supplier has received specific consideration for assuming this obligation, including among other consideration, Purchaser’s agreement to the Supplier’s prices, which was submitted in recognition of this Order and all other obligations assumed by Supplier hereunder. The provisions of this paragraph shall survive completion, termination, or cancellation of this Order. Except to the extent of Purchaser’s own negligence, Supplier shall make no claim or demand against Purchaser for any injury (including death), claim, expense, loss or damage to property suffered or sustained by Supplier or Supplier’s subcontractors or any other person which arises out of or is connected with this Order or anything done or not done as required hereunder, or any other errors or omissions, and hereby waives as against Purchaser all such claims and demands. Purchaser shall not be deemed to have caused or contributed to a Claim merely by reason of its knowledge, approval or acceptance of the product, materials, shop drawings, specifications, supplies, equipment, or procedures of Supplier. For the purposes of this Section, “Claims” means any and all claims, suits, demands, awards, actions, proceedings, losses, costs, damages, or expenses. This Section shall not be replaced or modified by any terms contained elsewhere in this Order, including any schedules attached hereto. This Section shall survive the expiration or termination of this Order.
11. Limitation of Liability
In no event shall Purchaser be liable to Supplier or any third party, in contract, tort or otherwise, for any loss of profit or business, or any special, incidental, indirect, exemplary, punitive, liquidated, or consequential damages, or for anticipated profits arising from or as a result of the Order, even if Purchaser has been advised of the possibility of such damages. Purchaser’s liability for a claim of any kind or for any loss or damage arising out of or in connection with or resulting from this Order or from any performance or breach, shall in no case exceed the price allocable to the goods or services or unit which directly gives rise to the claim. Any attempt by Supplier to limit Purchaser’s warranties, remedies or the amount and types of damages that Purchaser may seek shall be null and void. Notwithstanding anything in this Order or otherwise to the contrary, Purchaser’s sole and exclusive liability and obligation to Supplier is the payment of undisputed amounts for the Goods in accordance with the terms of this Order. Supplier waives and releases any and all other actual and potential claims, rights, or remedies against Purchaser.
12. Delivery / Delays
Purchased goods or services shall be delivered or furnished at the time or times specified on the face hereof, or in the event no delivery schedule is stated, as soon as possible. All products are sold and shall be delivered F.O.B. Purchaser’s Facilities, as may be indicated on Purchaser’s Purchase Order unless otherwise agreed upon in writing by the Supplier and Purchaser.
If products or services cannot be delivered within the time specified, Supplier must immediately notify Purchaser in writing. Supplier shall exercise the utmost diligence to obtain the information required to prepare shop drawings as may be necessary for production of the materials herein contemplated, and if at any time such information has not been furnished or approved, Supplier shall promptly inform Purchaser in writing as to what information remains required to complete delivery within the time specified. Failure to deliver goods or to perform services of the quality and within such specified time or times (or if not specified, within a reasonable period of time), shall at the option of Purchaser, relieve Purchaser of any obligation to accept and pay for such goods or services, as well as any undelivered installments. Upon failure to deliver or perform as specified, Purchaser may buy elsewhere and the Supplier shall indemnify Purchaser as provided for herein (including reimbursement for any increased costs paid by Purchaser) unless deferred shipments or performance is consented to by Purchaser in writing. Any failure by Purchaser to exercise this option with respect to any installment shall not be deemed to constitute a waiver with respect to subsequent installments. Goods delivered prior to a specified delivery date may, at Purchasers’ option, be returned to the Supplier or retained, but Purchaser shall be entitled to withhold payment until the otherwise applicable payment date.
Delivery shall be deemed complete upon arrival of the goods free and clear of all encumbrances and liens within the time and at the destination specified herein, upon acceptance of the goods by Purchaser, and upon delivery to Purchaser of such Bills of Lading, invoices or other documentation as may be specified herein.
13. Inspection / Acceptance
All goods, material and equipment supplied under this Order are subject to inspection and acceptance by Purchaser within a reasonable time after receipt thereof. Inspection and expediting may be carried out by Purchaser and/or its appointed agent(s) who shall be given free access and entry at all reasonable times to all parts of Supplier’s works which are engaged in fabrication of the goods. Supplier shall make adequate provisions to ensure free and safe access and entry to its suppliers’ and/or subcontractors’ premises for this purpose. Purchaser’s approval of Supplier’s design, material, process, drawing, specifications or the like shall not be construed to relieve Supplier of the warranties set forth herein. The making or failure to make any inspection of or payment for, or acceptance of the material shall in no way impair Purchasers’ right to reject nonconforming goods, to recover damages or exercise any other remedies to which Purchaser may be entitled, notwithstanding Purchasers’ knowledge of the nonconformity, its substantiality, or the ease of its discovery. Purchaser shall notify the Supplier in writing of the rejection of any goods, material and equipment which are not as warranted or not in accordance with the description, quantity, or specifications stipulated in this Order, and such goods, material, and equipment shall be at the risk and expense of the Supplier from the date of the notice. Rejection by Purchaser of any lot or individual item furnished under this purchase order does not relieve Supplier of its obligation to deliver conforming items in the quantities set forth in this purchase order. Purchaser, at its option and sole discretion and at the Supplier’s expense may:
(a) require the Supplier to immediately re-perform any defective portion of the services and require the Supplier to immediately repair or replace non-conforming goods with conforming goods;
(b) take such actions as may be required to cure all defects and bring the goods or services into conformity with all requirements of this Order, in which event, all related costs and expenses shall be borne by the Supplier;
(c) withhold total or partial payment;
(d) reject and return all or any portion of such goods or services; and
(e) terminate this Order without liability.
14. Packing and Shipping
All Products covered by this Order shall be packed in accordance with best industry standards to ensure against damage from weather, storage, handling and transportation. Supplier shall enclose a memorandum of contents in each box or package. A shipping notice and a bill of lading, all showing full routing, car number, the number of this Order, part numbers, and similar information, shall be included with each shipment. Routing instructions shown on this order must be complied with.
(a) Supplier shall prepare one packing slip for each container clearly showing each item number as specified on the Order, the Purchase Order number, the quantity and the full description of the item and its gross weight.
(b) Where shipments contain more than one parcel, each parcel shall be marked as follows: Case 1 of 6, Case 2 of 6, Case 3 of 6, etc.
(c) Hazardous materials including toxic and flammable substances shall be clearly labeled in accordance with W.H.M.I.S. regulations.
(d) Supplier shall ensure all shipments are made with all labels and accompanying documentation required by law, including where applicable a duly completed Material Safety Data Sheet (MSDS);
(e) Damages to any goods resulting from improper packing or packaging will be back charged to Supplier’s account.
15. Price and Payment; Payment Terms
All prices set forth on this order are firm prices and not subject to escalation of any kind without Purchaser’s prior written approval. Unless otherwise specifically provided herein, no charge shall be made for preparation for shipment, costs of shipment, pallets, boxing, packing, crating or cartage, taxes, import or export duties, excises or other extras. Supplier agrees that the price for the Products shall be the lowest prevailing price for the quantity ordered and Purchaser shall be given the benefit of any price reduction prior to shipment accorded the same class of trade. The terms of payment on the face of this Order shall be effective from the date of receipt by Purchaser of an acceptable invoice. If correct invoices do not reach Purchaser within five (5) calendar days from invoice date, payment deadlines and discount periods shall be adjusted to receipt of correct invoice. The prices for the purchased goods or services include all customs and import duties unless otherwise noted on this Order. All prices and related charges shall be in Canadian currency unless otherwise noted on this Order. Subject to acceptance of the purchased goods or services, and unless Purchaser has otherwise agree in writing, Purchaser shall pay net sixty (60) days of receipt of the Supplier’s invoice and a 10% holdback amount shall be applied to each invoice, to be remitted upon written confirmation of final completion / acceptance by Purchaser.
16. Invoicing and Taxes
The Supplier’s invoice must include: (i) the Purchaser’s PO number and specific line item(s) number; (ii) the quantity and unit of measure as shown on the PO; and (iii) the name of the Purchaser’s requisitioner (used as a contact for future control of products/services). Supplier will provide to Purchaser, as a condition to any payment, Supplier’s applicable GST/HST registration number and, where applicable, the QST registration number, unless such numbers are set out on Supplier’s invoices. Supplier shall set out all GST/HST/QST as a separate line item on all invoices submitted to Purchaser.
17. Right of Set-off
Purchaser may, at its option, set-off any amounts otherwise due from Purchaser to Supplier under this Order against any credits, delinquent amounts, or liabilities that are due from Supplier to Purchaser, or its affiliates. If Purchaser disputes any portion of the invoice or has rejected any Product to which the invoice relates, it shall pay such invoice less the disputed amount or value of rejected product or service, as the case may be, subject to adjustment (in the case of disputed amounts) upon resolution of the dispute. Non-payment by Purchaser of any amount in dispute shall not alleviate, diminish or modify in any respect Supplier’s obligations to perform as required by and in accordance with this Order. Purchaser shall be entitled to withhold from Supplier any amounts required to be withheld under applicable tax legislation, and any remittance of withholding taxes to the applicable tax authorities shall be deemed to be payment to Supplier.
18. Rights and Remedies
The rights and remedies of Purchaser hereunder shall not be exclusive but shall be cumulative and additional to any other rights and remedies provided by any and all other clauses and paragraphs of this Order and to all other rights and remedies in law or equity. No waiver of a breach of any provision of this Order shall constitute a waiver of any other breach or a waiver of such provisions. Article and section headings in this Order are for convenience only and shall not be considered part of this Order or used in its construction.
19. Insurance
Prior to performing Services under the Order at the lands, premises, and work areas occupied by Purchaser, the Supplier and all subcontractors of every tier shall, in accordance with the applicable laws relating to Worker’s Compensation, cover all of their employees working on or about Purchaser’s lands, premises, and work areas. Prior to commencement of services, Supplier shall furnish a current clearance letter from the Provincial or Territorial Workers’ Compensation Board, as applicable. Supplier shall, at its own expense, obtain and maintain, in a form and with an insurance company satisfactory to Purchaser (collectively, the “Insurance Coverage”), policies of:
(a) Commercial General Liability insurance with a Limit of Liability not less than Five Million Dollars ($5,000,000) inclusive for any one loss or occurrence for personal injury, bodily injury, death or property damage, including loss of use thereof. This policy shall by its wording or endorsement include without limitation the following:
(i) Purchaser (and the Directors, Officers, employees, agents and trustees of Purchaser) as an additional insured with respect to the obligations of the Supplier in this Order;
(ii) “Cross Liability” or “Severability of Interest” clause which shall have the effect of insuring each entity named in the policy as an insured in the same manner and to the same extent as if a separate policy had been issued to each;
(iii) Coverage for unlicensed vehicles not required by law to be insured under a statutory form of Automobile Insurance;
(iv) Coverage for the operation of machinery, apparatus, or equipment mounted on or attached to any vehicle while at Purchaser’s site or operation of such equipment including loading or unloading of cargo;
(v) if applicable, “Hoist Liability” or “Hook Liability” covering the risk of damage to property being lifted by any hoist or crane used in connection with the operations of the Supplier or its subcontractors of any tier;
(vi) if applicable, coverage for shoring, blasting, excavating, underpinning, demolition, pile driving, caisson work, grading, tunneling and all work below ground surface, and removal or weakening of support for building(s) land and property.
(b) Supplier shall carry at its expense Automobile Liability Insurance covering all motor vehicles owned or non-owned, operated or licensed by Supplier with a minimum bodily injury and property damage limit of Five Million Dollars ($5,000,000.00) inclusive per occurrence.
(c) Property “All Risks” insurance covering Supplier’s owned property, including Supplier’s equipment, where applicable, and property of others in the care, custody, or control of Supplier or for which the Supplier has assumed liability, all including while in transit or storage on a replacement cost basis. With respect to any property of Purchaser, such policy shall contain a loss payee clause in favour of Purchaser
(d) Sudden and accidental pollution liability, if applicable.
All required insurance policies shall be issued by insurers acceptable to Purchaser and licensed to transact business in the Province of British Columbia. Supplier agrees that the insurance requirements set out herein shall not limit or restrict its liabilities pursuant to this Order. The Insurance Coverage required to be maintained pursuant to this Order shall be primary and not excess of any other insurance that may be available. Supplier should provide Purchaser with not less than thirty (30) days’ written notice in advance of cancellation, material change, or amendments restricting coverage. Supplier shall provide Purchaser with written notice and all reasonable particulars and documents related to any damages, losses, incidents, claims, and potential claims concerning this Order immediately after the damage, loss, incident, or claim has been discovered. Supplier is responsible for any deductible and excluded loss under any insurance policy. Acceptance of any certificate(s) which are not compliant with the requirements set out herein shall in no way whatsoever imply that Purchaser has waived its insurance requirements. Purchaser reserves the right to maintain the Insurance Coverage in good standing at Supplier’s expense and to require Supplier to obtain additional insurance where, in Purchaser’s reasonable opinion, the circumstances so warrant. If the Supplier fails to maintain the Insurance Coverage required in this Order, Purchaser may, at its option, terminate this Order without notice.
20. Title / Risk of Loss
Title to the products shall pass to Purchaser when the products are delivered to the Purchaser at Purchaser’s facilities, or upon payment therefor by Purchaser, whichever occurs earlier. However, risk of loss shall pass to Purchaser only upon delivery in good condition and inspected by Purchaser at Purchaser’s facility in accordance with the schedule and conditions set forth in this Order. All equipment and material furnished to Supplier by Purchaser, and all drawings, reports, deliverables, blueprints, jigs, fixtures, printing plates, dyes, tools or patterns, etc. charged by Supplier to Purchaser shall be the property of Purchaser and shall be promptly delivered to Purchaser at its request.
21. Time is of the Essence
Time shall be of the essence for this Order.
22. Force Majeure
Neither party shall be liable to the other for default, failure, or delay in providing or accepting goods or services hereunder if such default, failure, or delay is caused by extraordinary event or occurrence beyond that party’s control, which for the purposes of this order shall mean fire, accident, strike (other than a strike affecting Supplier), civil disturbance, war, act of terrorism, act of God, embargo, governmental order or regulation, complete or partial shutdown of Purchaser’s or Supplier’s plant by reason of mechanical breakdown, floods, windstorms, explosions, riots, natural disasters, sabotage or any other similar or different contingency beyond the reasonable control of the Purchaser or Supplier. Written notice of such delay, including the anticipated duration of the delay, must be given by the nonperforming party within ten (10) days of the event. During the period of any delay or failure to perform by Supplier, Purchaser, at its option, may purchase goods from other sources and reduce its schedules to Supplier by such quantities, without liability to Purchaser, or cause Supplier to provide the goods from other sources in quantities and at times requested by Purchaser and at the price set forth in this Contract. If requested by Purchaser, the Supplier shall, within five (5) days of such request, provide adequate assurance that the delay will not exceed such period of time as Purchaser deems appropriate. If the delay lasts more than the time period specified by Purchaser, or Supplier does not provide adequate assurance that the delay will cease within such time period, Purchaser may, among its other remedies, immediately cancel this Order without liability.
23. Termination
By written notice to Supplier, Purchaser may terminate this Order in whole or in part if (a) Supplier fails to perform strictly in accordance with the required delivery schedule, (b) Supplier fails to make progress so as to endanger performance of this Order, (c) Supplier fails to strictly comply with any of the other provisions of this Order. If Supplier becomes insolvent, enters into voluntary or involuntary bankruptcy or receivership proceedings, or makes an assignment for the benefit of its creditors, Purchaser shall have the right, without limiting any other rights or remedies which Purchaser may have hereunder or by law, to terminate this Order by written notice to Supplier. Supplier shall be liable to Purchaser for all costs in excess of the prices specified herein and incurred by Purchaser in thereafter completing or procuring the completion of this Order. Purchaser may terminate all or any part of this Order for convenience at any time by written notice to Supplier. Upon termination of this Order, Purchaser shall have no further liability or obligation under this Order, except that Purchaser shall settle all amounts owing to Supplier for goods actually delivered to Purchaser or the value of the services successfully performed by Supplier prior to the termination date of this Order. If Purchaser has ordered the goods for the purpose of enabling it to carry out another Agreement and if the other Agreement is terminated for any reason, then Purchaser shall have the right to terminate or cancel this Order in whole or in part to the extent that it remains incomplete. In the event the Order is terminated by Purchaser under the foregoing circumstances Purchaser will pay Supplier:
(i) the amounts set out in this Order for all parts of the goods that have been entirely finished and delivered in accordance with the terms of this Order, and for which Purchaser has not made any payment;
(ii) the amount of Supplier’s costs incurred in providing the work in progress;
(iii) the reasonable substantiated extra direct costs incured by Supplier arising from the termination;
Except for such amounts referred to above, notwithstanding any term in this Order, in no circumstances whatsoever will Purchaser be liable to Supplier for consequential liabilities, damages, losses, costs or expenses, loss of profit, economic loss, interest or any other loss suffered or incurred by Supplier in any such termination. Amounts due to the Supplier shall not become payable by Purchaser to Supplier unless and until Purchaser receives payment from the other party to the terminated Agreement referred to above.
24. Warranty
(a) Supplier shall furnish the goods in accordance with the details and specifications contained in this Order and Supplier hereby guarantees and warrants that the Supplier has the right to sell the goods, material, and equipment with good and marketable title thereto, that the goods supplied under this Order to be fit for the particular purpose or use for which they are specified by Purchaser, that the goods will perform in accordance with any specifications advised by Purchaser and in addition, Supplier guarantees and warrants the goods against any and all defects in material, workmanship, and design for a minimum of 12 months from the date of substantial performance of Purchaser’s contract with its client, or for such longer warranty period as may be required by Purchaser’s contract with its client (the “Warranty”). Supplier shall, at its own expense, satisfactorily repair or replace at the specified delivery point the whole or any part or parts thereof which may be defective as aforesaid during the period. The repaired or replaced goods shall be subject to a further period of warranty equivalent to the Warranty, commencing at the date of acceptance by Purchaser of the repair or replacement of the defect. Should Supplier fail to rectify defects as aforesaid upon notice, Purchaser may itself undertake rectification. Supplier shall be responsible for any and all expenses incurred in the repair and replacement of the goods arising out of any such defect. This warranty is in addition to any and all warranties by the Supplier, the manufacturer or others with respect to the goods, material and equipment supplied under this Order and nothing contained herein shall be construed as limiting or restricting such.
(b) Unless Supplier provides written confirmation to Purchaser, Supplier is not a non-resident as defined by the Income Tax (Canada);
(c) Supplier warrants that all goods and services provided pursuant to this Order, whether provided by the Supplier or a direct or indirect supplier of the Supplier, shall be free of any claims of any nature, including without limitation title claims, and the Supplier shall cause any lien, encumbrance or charge asserted to be discharged, at its sole cost and expense, forthwith on the assertion of such claim;
(d) Supplier warrants and guarantees that goods, material and equipment delivered under this Order do not infringe any valid patent, copyright or trademark, foreign or domestic, owned or controlled by any other corporation, firm or person
(e) Supplier has experience in performing the Services and will provide the Services in a safe, efficient and professional manner in accordance with the terms of this Order, and in accordance with the Supplier’s industry standard, and to the extent it does not perform in this manner, it shall redo the Services without additional cost to Supplier;
(f) Supplier has and will maintain all applicable licenses and permits to perform the Services; and (g) Supplier shall provide only fully trained and qualified individuals to perform the Services.
25. Code of Conduct / Anti-Bribery and Corruption
(a) It is expressly understood and acknowledged by Supplier that Purchaser has a policy of “zero tolerance” when it comes to corruption and bribery. Supplier hereby undertakes to refrain from any and all actions that might constitute a violation of any applicable international, national or local anti-bribery laws. It is expressly consented to by Supplier that no financial contributions will be made to, and no other thing of value whatsoever will be given to, any government officials or representatives, public employees, officials or employees of any federal, provincial or local authority, employees or representatives of any undertaking, company or enterprise, irrespective of whether operated or owned or financed by private or public entities or funds, in connection with the pursuance or fulfillment of Supplier’s obligations under this Order. Supplier expressly confirms that it will render the services related to this Order in full compliance with all applicable laws and follow all and any applicable requirement arising out of this Order or the applicable laws. The parties acknowledge and agree that any breach of the compliance-related representations set out in this Order is deemed a material breach entitling Purchaser to terminate this Order at any time and with immediate effect, without any obligation to pay any outstanding fees or make any other payment. All payments to Supplier by Purchaser will be made only after receipt of an invoice referring to this Order, by cheque or transfer to a bank account in Supplier’s name in the country where the services are to be provided or where Supplier has established or maintains its principal place of business.
(b) Fit for Work: All workers are expected to be fit for work, meaning that a worker is in a state (physical, mental, and emotional) which enables that worker to perform assigned duties and responsibilities competently, unimpaired and in a manner which does not compromise or threaten the safety or health of themselves or others. Workers reporting for work who are not fit for work and/or are in the possession of, or under the influence of, drugs and/or alcohol will not be permitted to work and will be subject to their respective employer’s policies. The Purchaser has implemented a Substance Use Prevention and Fit for Work Policy. The Supplier is required to comply with the Purchaser’s Substance Use Prevention and Fit for Work Policy or otherwise have a Fit for Work program for all its workers and its subcontractors which is substantially similar to that of the Purchaser. The Fit for Work program must be acceptable to the Purchaser and at a minimum comply with the post-incident and reasonable cause drug testing guidelines as set out in the Canadian Model for Providing a Safe Workplace and CLR of BC Model, or equivalent. Subcontractors will be subject to pre-access, post-incident and reasonable cause alcohol and drug testing as per site-specific requirements. All Suppliers and their employees must comply with this requirement. Suppliers and their employees who breach this requirement may be subject to disciplinary action up to and including termination of this Order. If the situation involves a potential violation of law, Purchaser may refer the matter to the appropriate law enforcement authority.
26. Safety
Supplier and any subcontractors shall strictly comply with all applicable laws, rules, regulations, procedures, and practices, including without limitation those of the occupational health and safety legislation, building codes, by-laws, and environmental legislation applicable for the jurisdiction in which the goods and/or services are supplied, Purchaser’s Health and Safety Program, and any health and safety program specific to the destination specified under this Order.
Asbestos. The use of any asbestos fibers in any form, or of products, materials and components containing asbestos fibers in any goods or services sold or provided to Purchaser, is not permitted.
27. Trade Control Laws
Supplier represents and warrants that it complies and will comply with all applicable trade control laws, including, but not limited to, the export control, economic sanctions, anti-terrorism, and forced and child labour laws of Canada, the United States, and/or other applicable jurisdictions, including, but not limited, to such laws administered and enforced by the Canada Border Services Agency, Global Affairs Canada, Public Safety Canada and the Royal Canadian Mounted Police, as well as U.S. export and re-export controls and economic sanctions administered by the Department of Commerce’s Bureau of Industry and Security and the Department of Treasury’s Office of Foreign Assets Control (“Trade Control Laws”). Without limiting any rights of Purchaser, if at any point in time Supplier is in violation of Trade Control Laws, Purchaser (a) is relieved of all obligations under this Contract, (b) where applicable, may suspend or have suspended any payment to the Supplier until such time as Purchaser may lawfully resume payment, (c) may terminate the Contract in its sole discretion, without any advance notice and without payment of any penalty, and (d) may claim damages resulting from the breach of the Order by the Supplier.
28. Data Privacy
The following provisions shall apply in the event that the Purchaser makes “Personal Data” available to the Supplier which refers to information relating to an identified or identifiable individual made available by the Purchaser, its personnel or any other individual to the Supplier in connection with an agreement between the Purchaser and Supplier:
i. General. a) The Supplier is responsible for complying with any obligations applying to the Supplier under all applicable federal, provincial and municipal data privacy laws and regulations, including British Columbia’s Freedom of Information and Protection Privacy Act (“FOIPPA”). b) Supplier will not request Personal Data beyond what is necessary to fulfill the purpose(s) for which it is requested. The purpose(s) for requesting Personal Data shall be reasonable. Purchaser and Supplier will agree in advance as to the type of Personal Data which is required to be made available.
ii. Security Safeguards. a) Supplier will ensure that Personal Data is protected in accordance with the security safeguards communicated by the Purchaser and as required by all applicable federal, provincial and local laws. b) Supplier will ensure that any third party to whom Personal Data is transferred is bound by the applicable terms of these provisions.
iii. Use. Supplier agrees that Personal Data will only be used, accessed, managed, transferred or disclosed to third parties with the prior written consent of Purchaser, and will only be processed to fulfill the purpose(s) for which it was made available.
iv. Retention. Supplier will promptly return to Purchaser or destroy all Personal Data which is no longer necessary to fulfill the purpose(s) for which it was made available, unless otherwise instructed by the Purchaser, its personnel or any other individual or required by applicable law.
29. Dispute Resolution
Any dispute between Subcontractor and Supplier shall first be attempted to be resolved at the operational level, by good faith discussions between the parties’ key representatives. If, following good faith discussions spanning ten (10) days, the dispute is not resolved, the matter shall be escalated to the parties’ executive management for good faith resolution. If, following good faith discussions between executive management spanning ten (10) days, the dispute remains unresolved, either party may require that such disagreement or dispute to be submitted for determination by a single arbitrator pursuant to the latest Arbitration Act of the Province or Territory where the Project is located and if both parties agree to arbitration, the arbitrator’s decision shall be final and binding and the decision thereof may be entered in any court having jurisdiction for its enforcement. Subcontractor shall promptly and timely carry out the Work while the parties work to resolve their dispute in accordance herewith. For greater clarity, no dispute shall affect the Work Schedule, or constitute an excusable delay under the terms of this Subcontract.
30. Miscellaneous
Purchaser and the Supplier confirm that this contract as well as all other related documents, including notices, have been and shall be drawn in English only. Les parties aux présentes confirment leur volonte que cette convention de méme que tous les documents, y compris tous avis s y rattachant, soient rédigés en anglais seulement. Goods or materials delivered to or in Quebec that include warnings or instructions on or with the goods or materials shall include a French version of such warnings or instructions.