TERMS AND CONDITIONS
- Parties. The term “Seller” refers to the addressee set forth on the face of Buyer’s purchase order, and the term “Buyer” refers to the company set forth as addressor on the face of the purchase order.
- Terms. The following terms and conditions (including the contents of Schedule “A” attached hereto) apply to all Buyer’s purchase orders relating to goods and/or services, in addition to any terms set forth on the face of an individual purchase order or in any plans, specifications or other documents incorporated by reference (collectively, an “Order”). Acceptance is limited to the terms and conditions of this Order, and no purported revisions of, additions to, or deletions from the Order shall be effective, whether in any proposal, invoice, acknowledgment or bid from Seller or otherwise, and no local, general or trade custom or usage shall be of any force or effect or be deemed to result in any variation herein unless expressly agreed to in writing by Buyer’s authorized representative. The furnishing of any services and/or the delivery of any goods contemplated by this Order shall constitute acceptance by Seller of this Order in strict accordance with all of its terms and conditions.
- Changes. Buyer may make changes to the Order at any time and Seller shall accept such changes. If a change by Buyer causes an increase or decrease in the cost or time required for Seller’s performance, as soon as practicable, the parties shall agree to an equitable adjustment of the purchase price and/or delivery schedule, as applicable, and incorporate such changes as a revision change to the Order. No other form of notification or verbal agreement shall be binding on Buyer.
4a. Performance of Services; Inspection; Acceptance. Time of delivery is of the essence. In the event of a delay or default in performance by Seller in accordance with the Order, Buyer may, in its sole discretion, extend the time period for performance, upon conditions satisfactory to Buyer. Any extension granted by Buyer will not prejudice its ability to exercise its termination rights in the event of further delay or default. Alternatively, in such event and notwithstanding Sections 12 or 13, Buyer may terminate this Order in whole or in part, without any further obligation of any nature to Buyer, receive a refund of the corresponding amounts paid to Seller and seek satisfactory performance by alternative sellers. Payment for or acceptance of nonconforming services shall not constitute an acceptance thereof, limit or impair Buyer’s right to assert any legal or equitable remedy, or relieve Seller’s responsibility for defects, latent or otherwise.
4b. Delivery of Goods; Inspection; Acceptance.
- Title to the goods will be transferred to Buyer free and clear of encumbrances of any nature. All risk of loss or damage to the goods will pass to Buyer upon delivery. Time of delivery is of the essence. Buyer reserves the right to reject goods and to cancel all or any portion of this Order in the event of any failure to deliver in the quantity and at the time and place specified in this Order. Buyer’s acceptance of any part of a shipment not delivered as specified herein shall not obligate Buyer to accept the remainder of that shipment or any future shipments. All goods shall be received subject to Buyer’s inspection and acceptance, and subject to Buyer’s right to reject or revoke acceptance and, unless otherwise specified, return at Seller’s expense goods which fail to conform strictly to the specifications and requirements of this Order. Payment for or acceptance of nonconforming goods shall not constitute an acceptance thereof, limit or impair Buyer’s right to assert any legal or equitable remedy, or relieve Seller’s responsibility for defects, latent or otherwise. Any shipment made in advance of schedule will be, at Buyer’s option, either accepted but entry of invoice will be deferred until such time as shipment was scheduled to be made, or returned to Seller at Seller’s expense. If goods are rejected, they will be held at Seller’s risk of loss or damage until received by Seller.
- The method of transportation shall be governed by the ICC Incoterms in force at the date of Buyer’s Order. Seller shall include an accurate packing list with each shipment. Individual invoices shall be issued for each separate shipment. All invoices, packing lists, bills of lading, and each separate package within each shipment shall clearly reference the item number, Buyer’s Order number and Seller’s packing slip number. Partial shipments must be identified as such on the shipping memoranda and invoices.
5a. Insurance for Service Providers. Where applicable, Seller shall maintain at its own expense, at all times during the term and any extension of this Order, the following insurance with reputable insurers whose policies are valid in the jurisdiction in which the services are performed: (i) all-risk property insurance under this Order or in respect of the services covered by this Order; (ii) all-risk property insurance in respect of any item owned by Buyer which is in the custody, control or power of Seller; (iii) third party automobile liability insurance, with a minimum limit of two million dollars ($2,000,000) per occurrence; and (iv) professional liability insurance coverage, with a minimum limit of two million dollars ($2,000,000) per occurrence. Seller shall include Buyer as a named-insured under any such policies and provide proof of workplace safety insurance approvals in the jurisdiction of the place the services are performed. Seller shall provide Buyer with evidence of such insurance coverage and proof of payment of premiums in respect of such insurance policies upon Buyer’s request. Seller shall also maintain at its own expense, at all times during the term and any extension of this Order, responsibility and insurance for risk of loss, theft, damage or destruction to any Seller-owned rental equipment
5b. Insurance for Goods Providers. Where applicable, Seller shall maintain at its own expense, at all times during the term and any extension of this Order, the following insurance with reputable insurers whose policies are valid in the jurisdiction in which the goods are delivered: (i) all-risk property insurance under this Order or in respect of the goods covered by this Order, including without limitation product liability insurance in respect of all actual and contingent obligations and liabilities of Seller; (ii) all-risk property insurance in respect of any item owned by Buyer which is in the custody, control or power of Seller; and (iii) a Commercial General Liability insurance policy, with a minimum limit of five million dollars ($5,000,000.00), inclusive of bodily injury and property damage, for any one occurrence. Seller shall include Buyer as a named-insured under any such policy, and Seller shall provide Buyer with evidence of such insurance coverage and proof of payment of premiums in respect of such insurance policies upon Buyer’s request.
- Payment Terms. Payment terms shall be as set forth on the face of Buyer’s Order and payment shall be made within such period following receipt and acceptance of the goods and/or services and receipt, in proper form and substance, of all documentation required by this Order. This Order shall not be filled at any price higher than last quoted or charged by Seller, except as expressly agreed to in writing by Buyer. Seller warrants and agrees that the price and terms provided for the services covered by this Order are no less favorable to Buyer than those offered to Seller’s best customer under generally similar circumstances in terms of quantity and delivery schedule. Acceptance by Seller of the final payment will constitute a waiver of all claims by Seller against Buyer except those previously made in writing in accordance with this Order and still unsettled. Payments to Seller, including final payment, will not relieve Seller from any of its obligations or liabilities under this Order or otherwise.
7a. Seller’s Warranties on Services. Seller warrants that all services shall be provided in a professional and workmanlike manner, with a degree of skill and care consistent with current, good and sound professional procedures and will be delivered in a timely manner and on schedule, as determined by Buyer. Seller shall always act diligently in the performance of the services. If a breach of warranty occurs, Seller shall re-perform, at Seller’s expense, any portion of the services which are defective until such non-compliance is corrected, without waiving any other rights, return for credit, or replacement of the nonconforming services. Seller’s warranties shall survive acceptance and payment and shall run to Buyer, its successors, assigns, customers and users of the services and shall not be deemed to be exclusive. The warranty period shall be the longer of: (i) one (1) year from the date of this Order; and (ii) the express term provided in this Order.
7b. Seller’s Warranties on Goods. Seller warrants that all material, work product, and merchandise supplied under the Order: (i) shall strictly conform to all specifications,
drawings, samples, or other descriptions furnished to and approved by Buyer; (ii) shall be fit and serviceable for the purpose intended, as agreed to by Buyer and Seller; (iii) shall be of good quality and free from defects in materials and workmanship; (iv) shall be new and not refurbished or reconditioned, unless expressly agreed in writing by Buyer; (v) shall not infringe any patent, copyright, trademark, trade secret or other intellectual property, proprietary or contractual right of any third party; and (vi) shall bear all warnings, labels and markings required by applicable laws and regulations. Neither receipt of material, work product or merchandise nor payment therefore shall constitute a waiver of this provision. If a breach of warranty occurs, Buyer may, in its sole discretion, and without waiving any other rights, return for credit or require prompt correction or replacement of the nonconforming goods. Seller’s warranties shall survive acceptance and payment and shall run to Buyer, its successors, assigns, customers and users of the goods and shall not be deemed to be exclusive. The warranty period shall be the longer of: (i) one (1) year from the date of this Order; and (ii) the express term provided in this Order.
- Intellectual Property. To the fullest extent permitted by law, Seller shall indemnify and hold harmless Buyer and its affiliates, and their respective officers, directors, agents, shareholders, employees, representatives, suppliers and subcontractors, successors and assigns, and all of their customers and users of any product and/or service (“Indemnified Parties”) from and against any and all losses, liabilities, claims, demands, costs and expenses (including reasonable lawyers’ fees) (collectively, the “Losses”) suffered or incurred by any of them in connection with any claim, demand, suit or judgment involving any actual or alleged infringement of any patent, copyright, trademark or other intellectual property rights (“Intellectual Property Rights”) in connection with the manufacture, use or disposition of any goods, article, material or service supplied by Seller. Seller will, at its expense, defend all claims, actions or proceedings against Buyer relating to or based on any allegation that the goods and/or services, or any part thereof, constitutes an infringement upon, or a misappropriation of any Intellectual Property Rights and will pay to Buyer all resulting Losses incurred by Buyer. Buyer will give Seller written notice of any such claim, action or proceeding and, at the request and expense of Seller, provide all available information, assistance and authority required to conduct its defence. If all or any part of the goods and/or services is finally determined to constitute an infringement or misappropriation of Intellectual Property Rights of a third party, or if Buyer is enjoined from using any of the goods and/or services or Intellectual Property Rights embodied therein as a result of an infringement or misappropriation claim, Seller will at its expense promptly: (i) obtain for Buyer the right to continue using the goods and/or services; (ii) replace the infringing elements of the goods and/or services with non-infringing elements, while maintaining the full functionality, integrity and performance capabilities of the services; or (iii) modify the goods and/or services so that it no longer infringes, while maintaining the full functionality, integrity and performance capabilities of such goods and/or services.
- Indemnification. To the fullest extent permitted by law, Seller shall indemnify and hold harmless Indemnified Parties from and against any and all Losses suffered or incurred by any of them in connection with any actual or alleged damage to property or injury (including death) to any person arising from or in connection with the goods and/or services provided by Seller or the use thereof, Seller’s performance under this Order, or Seller’s performance of work on Buyer’s premises or use of Buyer’s property, either on or off of Buyer’s premises, except for such Losses arising solely out of the gross negligence of Buyer.
- Limitation of Liability. To the fullest extent permitted by law, Buyer shall not be liable to Seller, its employees, representatives, agents, suppliers, or subcontractors for any loss of anticipated profits or incidental damages (except to the extent expressly provided in Section 12) or consequential damages. Without limiting the foregoing, Buyer’s liability for any claim arising directly or indirectly under or in connection with the Order shall in no event exceed the cost of the goods and/or services giving rise to the claim. Buyer shall have no liability for penalties of any kind.
- Laws and Regulations. Seller shall comply with all applicable laws (including federal, provincial and municipal statutes, regulations and bylaws) of whatever nature concerning the supply of the goods and/or performance of the services. Unless otherwise specified in the Order, Seller will obtain, at its cost, all permits and other consents required in respect of the goods and/or services.
- Termination for Convenience. Buyer may, by written notice to Seller, terminate the Order, or any part thereof, for any or no reason, for Buyer’s convenience. Upon notice of termination, Seller shall immediately stop all work and cause its suppliers and/or subcontractors to stop all work in connection with the Order. If Buyer terminates for convenience, Buyer shall pay Seller for goods and/or services accepted as of the date of termination, and, subject to Section 10, for Seller’s actual, reasonable, out of pocket costs incurred directly as a result of such termination. Buyer shall have no responsibility for work performed after Seller’s receipt of notice of termination.
- Termination for Cause. Buyer may, by written notice to Seller, terminate the Order, or any part thereof, if Seller breaches any of the terms and conditions of the Order, becomes insolvent or is declared bankrupt. By way of example, (i) failure by Seller to make timely, complete and conforming delivery of goods and/or services, or (ii) breach of the representations or warranties set forth in the Order, shall entitle Buyer to terminate the Order for cause. If Buyer terminates for cause, Buyer shall have no payment obligations to Seller. Should a court of competent jurisdiction subsequently determine that Buyer’s termination for cause was wrongful or unjustified, then such termination shall be automatically considered a termination for convenience under Section 12 and Seller shall have all rights under that provision, but no other rights or claims for damages.
- Confidentiality. Seller acknowledges that it may, in providing the performance of its services under the Order, be exposed to or acquire proprietary confidential information of Buyer or any of its affiliates, including, without limitation, information or materials concerning any of Buyer’s or any such affiliate’s customers, organization, work, know-how, processes, manufacturing techniques or technology (“Confidential Information”). Seller agrees to hold the Confidential Information in strict confidence and not to copy, reproduce, sell, assign, license, market, transfer, or otherwise disclose to any person or entity any such Confidential Information or to use any of such Confidential Information for any purpose other than in the performance of Seller’s obligations under the Order. Seller agrees to notify its agents, employees and subcontractors of this confidentiality requirement and to obligate them in writing to abide by it for the express benefit of Buyer and its affiliates.
- Use of Buyer’s Name. Seller shall hold the business relationship with Buyer and any Buyer’s affiliate in strict confidence and shall not publish any advertising, promotion or other printed material or show any presentations or participate in any other activity which would disclose that it had or has a business relationship with Buyer or its affiliates and/or any details of that relationship.
- Survival; Remedies Cumulative. All agreements, representations and warranties of Seller herein (including without limitation those regarding confidentiality and indemnification) shall survive delivery and final payment or an earlier termination of any Order. All of the rights and remedies available to Buyer under any Order are in addition to, and not in limitation of, the rights and remedies otherwise available at law or in equity.
- Governing Law. This Order and the conduct of the parties with respect to the formation and performance of this Order are governed by and are to be construed and interpreted in accordance with the laws of Ontario and the laws of Canada applicable in Ontario. The parties irrevocably submit to the non-exclusive jurisdiction of the Courts of Ontario and the Federal Court of Canada.
- Miscellaneous. The invalidity, illegality or unenforceability of any provisions of any Order shall not affect the continuation in force of the remainder of said Order. No waiver of any obligation of Seller shall be effective unless in writing signed by Buyer and no waiver in any single instance shall be considered a waiver of any other or similar obligation. Any Order shall inure to the benefit of Buyer and its successors and assigns, shall be binding upon Seller and its successors and assigns and may not be assigned or delegated by Seller without the express written consent of Buyer.
- Dispute Resolution. All disputes, disagreements, controversies, questions or claims arising out of or relating to this Order, or in respect of any legal relationship associated with or arising from this Order, including with respect to this Order’s formation, execution, validity, application, interpretation, performance, breach, termination or enforcement, will be determined by litigation in the Superior Court of Justice of Ontario at Ottawa, to the jurisdiction of which the parties irrevocably attorn.
- Privacy and Security. Seller acknowledges and agrees that in addition to the obligations set out herein, it shall comply with Buyer’s privacy and security provisions set forth in Schedule “A” attached hereto.
Schedule “A” – Privacy and Security
“Buyer Data” means all electronic data or information provided by Buyer to Seller, including Personal Information and Confidential Information, in connection with the goods and/or services.
“handle” means to access, receive, collect, use, transmit, store, process, record, disclose, transfer, retain, dispose of, destroy, manage or otherwise handle; and “handling” has a corresponding meaning.
“Personal Information” means information about an identifiable individual including, without limitation, his or her gender, marital status, address, telephone number, email addresses, financial information, bank information, electricity consumption and identifying numbers such as account numbers, to which Seller is given access by Buyer for the purposes of this Agreement, and/or which is compiled by and stored using the goods and/or services, including all such information that is Buyer’s Confidential Information, data and any information derived from such Personal Information including aggregate and de-identified information.
“Privacy Breach” means any action or inaction by Seller that results, or may result, in: (i) the handling of Buyer Data by any person who is not authorized or entitled to handle such Buyer Data; or (ii) the loss of, or inability to account for, Buyer Data.
“Security Breach” means any breach of any provisions of the Agreement that Buyer determines, in its sole discretion, has caused or may cause unauthorized handling of, or the loss of or inability to account for, Buyer Data (including a Privacy Breach).
“Security Incident” means:
(i) violation or imminent threat of violation of Seller’s or Buyer’s computer security policies, acceptable use policies, or standard security practices necessary for Seller to provide the goods and/or services and perform its obligations under the Agreement;
(ii) unauthorized delivery of, access to or use of Buyer Data, facilities, infrastructure, premises, computer systems, and/or hardware occurring by or through Seller or its authorized personnel, whether intentional or otherwise;
(iii) any act or omission of Seller or its authorized personnel that compromises; (a) the security, confidentiality or integrity of Buyer Data, or (b) any physical, technical or organizational safeguards put in place by Seller that relate to the protection of the security, confidentiality or integrity of Buyer Data;
(iv) potential, imminent or actual Security Breaches;
(v) potential, imminent or actual Privacy Breaches;
(vi) receipt of a complaint or allegation in relation to the privacy and security practices of Seller or its authorized personnel; and
(vii) breach or alleged breach of the Agreement relating to such Seller privacy and security practices.
Privacy and Security
- Seller shall comply with all laws or regulations related to information security, privacy and data protection that are applicable to both Buyer and Seller, and shall employ industry-leading standards to safeguard, prevent, detect, identify, report, track and respond to Security Incidents.
- Seller shall, where applicable: (a) monitor the goods and/or services for unauthorized access, interception, interruption, and Buyer Data loss using industry-leading network-based intrusion detection and prevention mechanisms and data loss prevention tools; (b) hold and safeguard Buyer Data in a secure physical and electronic environment using best practices: (i) that are not less rigorous than those used in the information technology services industry, and (ii) that a reasonable prudent and diligent commercial entity would undertake in similar circumstances; and (c) have plans and systems in place to isolate portions of the goods, software, hardware and/or infrastructure that Buyer provides Seller with access to perform the services and other obligations under this Agreement and any work order to ensure that if a portion of the goods, hardware, software and/or infrastructure fail due to the actions of Seller, Seller’s authorized personnel and/or Seller’s subcontractors, or due to an intrusion or attack by a third party, that the remainder of Buyer’s system, hardware, software and infrastructure will not be compromised.
- Seller will immediately, but no later than twenty-four (24) hours after becoming aware of any actual or reasonably suspected Security Incident, notify Buyer at [email protected] with copies to [email protected] and to Buyer’s primary business contact with Seller. Immediately following Seller’s notification to Buyer of any actual or reasonably suspected Security Incident and upon Buyer’s request, Seller shall at its own expense coordinate with Buyer to investigate the incident. Seller agrees to fully cooperate with Buyer in the handling of the matter, including, without limitation: (i) assisting with any investigation; (ii) providing Buyer with physical access to the facilities and operations affected; (iii) facilitating interviews with employees and others involved in the matter; and (iv) making available all relevant records, logs, files, data reporting and other materials required to comply with applicable law, regulation, industry-leading standards or as otherwise reasonably required by Buyer.
- At any time during the term of this Agreement and upon Buyer’s reasonable request, Seller will provide to Buyer a copy of Seller’s security documentation which Seller makes generally available to its customers, including reasonably available third party security audits or reviews and any written notice and detail of any deficiencies that Seller’s auditors (whether internal or external) found through the conduct of such audits, and the remediation efforts conducted by Seller to rectify such deficiencies. Seller may update or modify its security measures from time to time provided that: i) such updates and/or modifications do not result in the degradation of the security of the goods and/or services and ii) Seller notifies Buyer in writing of such updates and modifications immediately, but not later than twenty-four (24) hours from the date of such updates and/or modifications.
- Upon Buyer’s written request, Seller shall within ten (10) Business Days of such request provide to Buyer an officer’s certificate signed by a Seller senior executive confirming and certifying the current Seller security measures that are in place to safeguard, prevent, detect, identify, report, track and respond to Security Incidents.