Terms and Conditions
1. ENTIRE AGREEMENT:
1.1. The Seller accepts that this purchase order, including the terms and conditions hereof, constitute the full and final agreement between Buyer and Seller.
1.2. This purchase order supersedes all other negotiations, discussions, communications, and agreements, both written and oral, between Buyer and Seller with respect to the order and any and all other terms and conditions of sale, including any of the Seller’s purported terms and conditions of sale, regardless of when delivered, shall be of no force and effect.
1.3. Delivery of the materials or commencement of performance of the services ordered hereunder shall be deemed an acceptance by Seller of this purchase order and its terms and conditions.
1.4. Buyer and Seller mutually acknowledge that no other agreement, or breach of another agreement, shall have any bearing whatsoever on this agreement and shall not entitle Buyer or Seller to withhold neither payment nor materials due to noncompliance of any other agreements.
1.5. Seller shall comply with all applicable Federal, Provincial, Territorial, State or Local legislation. The fact that any of the terms and conditions hereof is held to be unenforceable shall not have the effect of rendering unenforceable any of the other terms and conditions hereof. Waiver by either party of any of the terms and conditions hereof shall not imply a waiver of the other terms and conditions. The purchase order shall be governed by the laws of the province of Alberta, regardless of rules of conflict of laws or choice of laws. The parties attorn to the exclusive jurisdiction of the courts of the province of Alberta in respect of any dispute arising hereunder.
2. PURCHASE ORDER CHANGES:
2.1. Unless expressly agreed in writing, no change to or modification of the items, specifications, terms, conditions and prices appearing in this purchase order shall be binding upon the Buyer.
2.2. Buyer, at any time by written notice to Seller, may make changes to this purchase order. Should any such change alter the cost of, or time required for, the performance of this order, an equitable adjustment may be requested by Seller or Buyer in the price, the delivery schedule, or both.
2.3. No claim by Seller for such adjustment shall be valid unless a written request is submitted to Buyer in such reasonable detail as Buyer may require within fifteen (15) days from date of Seller’s receipt of such change.
2.4. Nothing in this clause shall relieve Seller from proceeding without delay in the performance of this order as changed.
3. INVOICES AND PAYMENT:
3.1. Subject to the General Conditions, payment shall be made in accordance with the Purchase Order.
3.2. Seller shall submit a separate invoice for each shipment to [email protected]. Hard Copies are not accepted.
3.3. The invoice shall include:
a. A unique Invoice number.
b. Purchase order number.
c. List the items including the Purchase Order Line Item Number, quantities, unit prices, and taxes (including GST, HST, PST or other sales taxes).
d. All relevant back-up such as, but not limited to; associated bill of ladings, packing slips, and signed time tickets.
Nonconforming invoices shall be returned to Seller to be corrected and resubmitted.
3.4. The purchase price shall include all charges and expenses in connection with the delivery or performance of the materials or services unless specifically excluded, in which case the amount thereof must be invoiced separately and must be supported by copies of paid freight bills.
3.5. Payment will be made within forty-five (45) days after receipt of a fully compliant and undisputed invoice (together with supporting documents) provided that the Buyer has accepted the material and services. Payment method shall be via Electronic Funds Transfer (EFT).
3.6. Where documentation is required (drawings, manuals, etc…), payment may be withheld until such a time as the documentation is received and reviewed to ensure adherence to requirements.
3.7. Payment of Seller’s invoices will be subject to compliance with the holdback provisions of The Builder’s Lien Act and Seller providing appropriate clearance certificates regarding the payment of Workers’ Compensation assessments and provincial sales tax if applicable.
4.1. Notwithstanding any other provision of the Contract, an amount otherwise due to the Seller may be withheld without payment of interest if, in the opinion of the Buyer, it is necessary to protect The Buyer from loss on account of:
a. The Seller failing to complete the Work, not making satisfactory progress with the Work or being in default of any condition of the Contract, including quality assurance and health and safety requirements, or failing to provide any Deliverables in a timely manner;
b. The Seller not promptly remedying defective or deficient work;
c. The Seller failing to promptly and satisfactorily pay any claim for labour performed or materials or equipment furnished; or
d. Loss or damage to the property of the Buyer or others for which the Seller or its Subcontractors is responsible. If and when the cause of the withholding of any amount is removed and satisfactory evidence of such removal is furnished to the Buyer, The Buyer shall promptly pay the amount withheld to the Seller pertaining to such cause.
5. DELIVERY AND COMPLETION:
5.1. Timely delivery or completion is of the essence and Seller shall be responsible to ensure that such delivery or completion is done and shall advise Buyer immediately of any anticipated delays and the reason(s) therefore.
5.2. Seller shall enclose with each box, package or container, a shipping notice showing the contents, the name of Seller and the purchaser order number.
5.3. Title to the materials and the associated risk shall not pass from Seller to Buyer until delivery of the materials to the location designated by Buyer herein and acceptance thereof by Buyer, and for this purpose, payment for the materials in full by Buyer shall be deemed to constitute acceptance of the materials.
5.4. Where Seller fails to deliver the materials or complete the services on or before the date required for such delivery or completion, Buyer may (without prejudice to its other rights) cancel this order with respect to materials not delivered by such date and with respect to services not rendered by such date and Seller shall indemnify Buyer against any losses, damages, and reasonable costs and expenses attributable to Seller’s failure to deliver.
5.5. Buyer may return at Seller’s expense part or all of any shipment of materials received after the date required for delivery, unless such late shipment has been approved.
6. RIGHT OF INSPECTION:
6.1. All materials received shall be subject to Buyer’s inspection and rejection and to the inspection of any regulatory authority, the permission of which is required to use the materials. Seller shall provide all reasonable assistance for the inspection of materials.
6.2. Seller shall notify Buyer in advance and in writing of all changes in raw materials, feed stocks, processing operations, material specification or other changes which will in any way affect the quality of any goods or services delivered under this purchase order.
6.3. Seller shall bear the cost of delivery and inspection of defective, non-conforming, or otherwise rejected materials. Such materials shall be held for 30 days for Seller’s instructions and at Seller’s risk, and where Seller so directs, shall be returned at Seller’s expense. Buyer shall have the right to further inspection after Seller takes remedial action.
6.4. Where materials are rejected, any allowance for price of those materials shall be deducted from payments made in respect of total shipments. Inspection of the materials by Buyer and payment of the purchase price thereof shall not be deemed to constitute acknowledgement that the merchandise complies with the terms and conditions hereof.
7.1. Except for GST, HST, PST or other sales taxes, the prices are inclusive of, and Seller shall pay all excise, customs or other duties or taxes. The applicable taxes (GST, HST, PST or other sales taxes), where applicable, shall be indicated separately on Seller’s invoices.
7.2. If Seller is from outside Canada, Seller, shall forward to Buyer three (3) properly certified Canada Customs invoices on the same day that shipment is made, together with all certificates required, and all such invoices shall show the purchase order number, case or container number and contents of each package separately.
8. WARRANTIES BY SELLER:
8.1. Seller warrants that all materials and services covered by this purchase order are:
a. Of merchantable quality.
b. Fit and sufficient for the particular purpose intended by the Buyer.
c. Free from all defects in design, workmanship, and material.
d. In strict conformance with the specifications, samples, drawings, designs or other descriptions upon which this order is based. Seller further warrants that all services shall be rendered in a good and workmanlike manner by skilled personnel.
e. Free and clear of all liens, encumbrances, adverse Claims, demands or other interests and the use of those materials or services by the Buyer shall not constitute an infringement of any patent, trademark or other intellectual property right belonging to any third party.
9. DEFECTIVE OR DEFICIENT WORK:
9.1. The Seller shall, at its own risk and expense, including all costs to access the Work, remedy without delay any defect or deficiency in the Work discovered within 24 months after Completion or 12 months after the Goods are put into service under normal operating conditions, whichever occurs first.
9.2. Should the Seller fail to remedy the defects or deficiencies in accordance with Paragraph 9.1, The Buyer may proceed with any activities necessary to remedy the defects or deficiencies and the Seller shall indemnify and hold harmless the Indemnitees from any Claim brought against or suffered, sustained, paid or incurred by one or more of the Indemnitees to remedy such defects or deficiencies.
10.1. The Seller assumes responsibility and liability for, and will protect, indemnify and hold harmless Buyer and its agents, officers, directors, representatives, employees and customers (collectively “Indemnitees”) from and against any and all Claims sustained or incurred, including those related to any injuries or alleged injures to persons (including death) or damage to property or the environment sustained or alleged to have been sustained, in each case including reasonable attorney and professional fees and costs and the cost of enforcing any right to indemnification hereunder, arising as a result of:
a. The performance or provision of the services and products pursuant to this purchase order
b. Infringement or misappropriation of the patent, copyright, trade secret or other intellectual property right of any third party.
c. The negligent or wilful act or omission of, or any unlawful act by, the Seller or those for whom the Seller is responsible at law.
d. The breach by the Seller of any of the terms, conditions, warranties, or representations contained herein.
10.2. The indemnity obligations herein shall survive delivery and acceptance of materials or services and shall apply without regard to whether the claim, damage, liability or expenses is based on breach of contract, breach of warranty, negligence, or other tort.
10.3. Notwithstanding any other provision in the Contract, the limitations of liability contained in the Contract shall not apply in respect of any liability of the Seller arising from, or connected to, its gross negligence or willful misconduct.
10.4. The Seller shall indemnify and hold harmless the Indemnitees from all Claims by any third party which may be brought against or suffered, sustained, paid or incurred by one or more of the Indemnitees as a result of and to the extent of the acts, faults, errors, omissions or negligence of the Seller.
11.1. Seller shall not disclose any confidential information of Buyer to any third party except as required to perform its obligations hereunder. The terms and existence of this purchase order and everything supplied in connection with it by Buyer shall be held in confidence by Seller.
11.2. Seller shall not publicly announce or disclose this purchase order or its contents without Buyer’s prior written consent. Seller shall not use Buyer’s name in any way without Buyer’s prior written consent.
11.3. Seller will not share any information related to this purchase order to third parties, including reporting agencies, unless required by law, without written consent from Seller. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Any violation of this paragraph shall be deemed a material breach.
12.1. Buyer reserves the right to cancel this purchase order in whole or in part in respect of material or services covered by this purchase order and not shipped or performed prior to such cancellation by notice in writing to Seller, before such shipment or performance, unless the materials were specifically manufactured for Buyer. In the latter case, provided Seller is not otherwise in default hereunder, Buyer shall refund to Seller the direct costs incurred by Seller to perform its obligations hereunder up to the date of cancellation. If the Seller has defaulted on its obligations hereunder, Buyer shall pay to Seller the direct costs incurred by Seller to perform its obligations up to the date of cancellation reduced by any additional cost imposed on Buyer in completing the materials or services by alternate means.
13. SITE SERVICES:
13.1. This section applies only to purchase orders where there is a requirement for the Seller to perform labour services on a worksite controlled by the Buyer or the Client of the Buyer.
13.2. Any failure by the Contractor to discover matters that affect or could affect the Services shall not relieve the Contractor from its obligations under the Purchase Order. Specifically, the Contractor accepts the Site and acknowledges that it has investigated and satisfied itself as to: the nature and magnitude of the Services; the location of, and all conditions relating to, the Site, including accessibility, general character, surface conditions, utilities, roads, uncertainties of seasonal weather and all other physical, topographical and geographical conditions; general character, quality, quantity and availability of equipment and materials required to execute and complete the Services; all environmental risks, conditions, Law and restrictions applicable to the Contractor, the Site or the Services; and all conditions affecting employment, personnel and labor, including availability, productivity, prevailing compensation and benefits, Laws and Site Policies.
13.3. The Contractor shall protect Buyer’s property and nearby property from loss or damage that may arise or result from the actions or omissions of the Contractor and its Subcontractors, and shall indemnify, defend and hold harmless the Indemnitees from any such loss or damage.
13.4. The Seller will have complete responsibility for the health and safety of its officers, employees, affiliates, agents and subcontractors while engaged in the services, comply with all site rules, health, safety, security and environmental rules imposed by Buyer, and will take all necessary precautions to prevent the occurrence of any injury/damage to person/property during the performance of the services.
13.5. The Seller shall perform the Services as an independent contractor. The Services constitute professional work that the Buyer typically does not itself perform in its normal business. The Buyer has engaged the Seller to perform only the Services for a finite period of time and only as provided in the Purchase Order. Buyer shall have the rights specified in the Purchase Order but shall have no direction or control of the Seller or any of its employees and agents, except in the results to be obtained in connection with the Services.
13.6. Under no circumstances shall the Seller cause or permit any access by any Subcontractor to the Site without the prior written consent of the Buyer, the qualification of the Subcontractor under the Site Policies, and the execution by the Subcontractor of a site access or other agreement containing such terms and conditions as shall be satisfactory to the Buyer in its sole discretion.
13.7. No waste materials shall be allowed to accumulate in or around the Site, and the Seller shall remove debris or waste materials at periodic intervals or as often as the Buyer may direct. Before Completion of the Services, the Seller shall remove or cause to be removed all temporary structures, superfluous and waste materials of whatever kind resulting from the Services.
13.8. The Seller shall immediately inform Buyer’s designated representative and security personnel of any release, discharge, spill, or emission of Hazardous Substances and any disturbance or damage to the environment on the Site of which the Seller becomes aware, and shall comply with any instructions given by Buyer’s designated representative or Buyer’s security personnel with respect to any such release, discharge, spill, or emission or disturbance or damage to the environment. The Seller shall be liable for and indemnify, defend and hold harmless the Indemnitees from and against any Claims asserted against, or suffered, sustained, paid or incurred by the Indemnitees arising out of or resulting from any release, discharge, spill or emission of Hazardous Substances by the Seller or any Subcontractor at the Site or in connection with the Services.
13.9. The Seller warrants and guarantees to the Buyer that:
a. The Services shall be performed in a professional, efficient, good and workmanlike manner, using only qualified, skilled and careful workers, in strict accordance with the Purchase Order and in accordance with sound and currently accepted practices and principles normally employed in the industry similar to the Services, and, in the event of a conflict, the higher practice or principle shall take precedence;
b. The Seller has the necessary qualified personnel, with the skills and expertise required to perform the Services, and is experienced, ready, and willing to perform the Services in accordance with the terms and provisions of the Purchase Order; and
c. The Seller has all permits, licenses and authorizations required to carry on its business and to perform the Service.
13.10. The Seller will maintain, at its own expense until the services are complete, comprehensive general liability insurance for not less than $5,000,000 with a financially sound and reputable insurer. At the Buyer’s request, name Buyer as an additional insured with respect to performance under this purchase order and/or provide Buyer with proof of such coverage.
13.11. The Seller may not subcontract any portion of the Work, subject to the prior written approval of The Buyer, which approval may be withheld at The Buyer’s sole discretion. Where any portion of the Work is subcontracted by the Seller, the Seller shall remain responsible for the performance of the Work and for the acts, omissions or defaults of its Subcontractors and their respective Personnel as if they were acts, omissions or defaults of the Seller.
13.12. At any time during normal business hours until 5 years after Completion, the Buyer or its nominees shall have the right to inspect and audit the Records. The Seller shall provide the Buyer with proper access and facilities to enable Buyer or its nominees to undertake such inspection and audit. The Contractor shall allow the Buyer to make copies as reasonably requested. The Seller shall provide to the Buyer an electronic file of such data upon the Buyer’s request. The Seller shall ensure that its contracts with its Subcontractors provide for similar audit rights so as to allow the Buyer access to audit the Subcontractors.
14. FORCE MAJEURE
14.1. 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/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 by such party (“Force Majeure Event”). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, terrorist acts, riots, strike, or embargoes. Seller’s economic hardship or changes in market conditions are not considered Force Majeure Events. Seller shall use all reasonable 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 performance for a continuous period of more than fifteen (15) business days, Buyer may terminate this Order immediately by giving written notice to Seller.
15.1. Neither Party is permitted to assign the Contract without the prior written consent of the other Party, which consent may be arbitrarily withheld. Notwithstanding the foregoing, The Buyer may assign the Contract to any of its Affiliates or to any third party which acquires all or substantially all of the assets of The Buyer, conditional upon the successor covenanting and agreeing to be bound to the Seller by the provisions of the Contract.
010000-P-STD-00-002-01, Scovan T&Cs May 5-23