Terms & Conditions of Purchase
If not otherwise defined in the Agreement, the following definitions govern the purchase of Goods or Services by the Buyer from the Seller.
“Agreement” shall mean the Corporate Purchasing Agreement entered into between the Buyer and Seller.
“Buyer” shall mean D&D Oilfield Rentals Corp. and shall include the Buyer’s successors and permitted assigns.
“Buyer’s Authorized Representative” shall mean a person with the authority to enter into, administer, and terminate the Order.
“Delivery” means the delivery of Goods, including the completion of any included work or Services, from Seller to Buyer at the point of delivery specified in the Order.
“Goods” means the products, materials, articles, equipment, supplies, appurtenances thereto, drawings, documentation, data, processes and all other property specified or required to furnish the items ordered hereunder, as changed, varied, corrected or repaired, .
“Order” shall mean, collectively, a purchase order issued pursuant to the Agreement, the Agreement and these General Terms & Conditions.
“Parties” means, collectively the Seller and the Buyer, and “Party” means either the Seller or the Buyer, as applicable.
“Price” manes the price quoted by the Seller and accepted by the Buyer and shall be the sum stated in the Order, subject only to such additions thereto and deductions therefrom as may be made pursuant to written amendment by both the Parties.
“Seller” shall mean the party identified on the face of the Order and who contracts to sell Goods or Services.
“Services” shall mean activities and services required to be performed by Seller to comply with the Order.
APPLICABILITY OF GENERAL TERMS AND CONDITIONS
In the event of a conflict between these General Terms and Conditions, the purchase order, and the Agreement, the Agreement shall govern.
ACCEPTANCE OF THE GENERAL TERMS AND CONDITIONS
The Order becomes the exclusive agreement between the parties for the Goods or Services contracted. Any of the following shall constitute Seller’s unqualified acceptance of the Order:
(a) written acknowledgement;
(b) furnishing of any Goods under the Order;
(c) commencement of performance of Services under the Order; or
(d) acceptance of payment from Buyer.
Any amendments to the Order shall only be effective if they are in writing and signed by both Parties.
PACKING AND SHIPMENT
Seller shall adequately and securely pack all Goods in such a manner as to prevent loss, damage and deterioration and provide optimum protection during internal handling, storage and while in transit to the point of delivery specified in the Order. Shipments shall be prepared to conform to the carrier’s requirements. All shipments exceeding 200 lbs. shall be packaged on pallets. Seller shall comply with any other special packaging requirements identified in the Order.
Seller shall comply with the routing and shipping instructions provided for in the Order. Markings on shipping containers shall be clearly legible from a distance of 36 inches. The Seller may mark by stencil, rubber stamp, or lacquer over a coated gummed label. Each package shall be marked with the Buyer Order number and number of packages included in the shipment and the package containing the packing list must be clearly marked as such.
The packaging, marking, handling, and shipment of hazardous and dangerous materials shall conform to all International, Federal, Provincial, and local laws and regulations. Goods shall be classified for freight purposes to obtain the lowest appropriate customs and duty rates. Seller shall make no declaration concerning value of Goods shipped except on Goods where tariff rating is dependent upon released or declared value, in which event the Seller shall release or declare such value at the maximum value within the lowest rating.
Unless otherwise stated in the Order, the cost of packing materials, packing cases and other packing charges required to comply with the above Clause 4 shall be deemed to be included in the Price. Unless otherwise agreed, all packing cases and packing materials provided by the Seller shall become the property of the Buyer.
RISK OF LOSS; TITLE
Title to the Goods shall pass from Seller to Buyer upon Delivery of the Goods as set forth in the Order. Seller shall be responsible for all costs of Delivery. Risk of loss of the Goods shall remain with the Seller throughout the performance of the Order and up to the Delivery of the Goods to the point of Delivery specified in the Order.
Seller assumes the following risks:
(a) all risks of loss or damage to all Goods, work in process, materials and other things until Delivery thereof as herein provided:
(b) all risks of loss or damage to third persons and their property until Delivery of all of the goods as herein provided:
(c) all risks of loss or damage to any property received by the Seller from or held by Seller or its supplier for the account of Buyer, until such property has been delivered to Buyer, and
(d) all risks of loss or damage to any of the Goods or part thereof rejected by Buyer, from the time of shipment thereof to Seller until redelivery thereof to Buyer.
DELIVERY AND DELAYS
Delivery by the Seller shall be in accordance with the Order. Seller hereby acknowledges that time is of the essence in the Order. Should the Seller have knowledge of any actual or anticipated delays in performance or Delivery, for any reason, Seller shall immediately notify the Buyer’s Authorized Representative, in writing, as to the cause(s), when on-schedule Delivery status will be achieved. Seller shall, at its sole expense, take all reasonable action necessary to meet schedules or to recover, to the maximum extent possible, Delivery in order to meet the schedules set forth in the Order. Such reasonable action by the Seller shall include, but is not limited to, shipment via expedited routing and carrier.
The Parties agree that the Seller’s liability to the Purchaser for failure to meet the Delivery schedules set forth in the Order may include the requirement of Seller to pay Buyer liquidated damages as set forth in the Order. The Parties hereby agree that such sums are a fair and accurate reflection of actual damages and shall not be construed as a penalty. Buyer shall be entitled to recover such liquidated damages from Seller as an offset against any sums due to Seller, or, in the event of non-performance, as a liquidated claim against Seller.
Notwithstanding the above, Seller shall not be charged with any failure or delay in Delivery when such failure or delay is due to any cause beyond the reasonable control, without fault or negligence, of the Seller, provided the Seller immediately notified the Buyer’s Authorized Representative, in writing, when such conditions causes or is likely to cause any failure of the Seller to perform any obligation hereunder. Causes beyond the reasonable control, without fault or negligence, of the Seller, shall mean acts of God, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather.
Notwithstanding the above, Buyer reserves the right to terminate, by written notice, the Order, or portions of the Order, affected by such delays, as provided for under Clause 13.
No deviation from the description, specifications, or any other requirement of the Goods or Services contained in this Order shall be permitted unless the Buyer’s Authorized Representative has issued a written amendment to such effect. Buyer’s Authorized Representative shall have the right at any time throughout the duration of the Order to vary or change the order in any way, including:
(a) technical requirements, purchase descriptions, specifications, statement of work, drawings, or designs:
(b) shipment or packaging methods: or
(c) place of delivery, inspection, or acceptance. If such variation or change will, in the reasonable opinion of the Seller, cause any variations in the Price or Delivery, or performance of any other obligation of the Seller, written notice thereof shall be submitted by the Seller within three (3) business days after receiving such notice of variation or change from the Buyer, failing which is shall be deemed that no such variations will be claimed by Seller. The Seller shall not proceed with any such variation or change until written acceptance is received from the Buyer’s Authorized Representative confirming the adjustment in the Price and or Delivery and/or performance of any other obligation of the Seller.
Nothing contained in this Clause 7 shall relieve the Seller from proceeding, without delay, in the performance of the Order, as varied or changed.
REPRESENTATIONS AND WARRANTIES
Notwithstanding inspection or acceptance by Buyer, Seller warrants that:
(a) it is knowledgeable, properly qualified, registered and licensed to perform the work required as described in this Order;
(b) it possesses adequate and sufficient resources, readily available as equipment, tools, qualified labor, materials and supporting infrastructure, to manufacture the Goods;
(c) the Goods are new (not remanufactured) and are not of such age or so deteriorated as to impair their usefulness or safety;
(d) it is entitled to pass title in respect of the Goods, free and clear of all encumbrances, security interests or claims and all component parts have been paid for under the Order;
(e) it has the financial capability, the requisite power and authority, and has taken all necessary action authorizing it to execute, deliver and perform its obligations under this Order;
(f) there are no actions, suits or proceedings pending or, to the best of the Seller’s knowledge, threatened against or affecting the Seller before any court or administrative body or arbitral tribunal that could reasonably be expected to materially and adversely affect the ability of the Seller to meet and carry out its obligations under this Order;
(g) in performing the work as described in this Order, Seller shall:
(i) obtain and maintain all permits, licenses and other authorizations required by it to perform such work, and
(ii) comply with, and shall cause its employees, authorized sub-vendors and agents to comply with, all such permits, licenses and authorizations, all applicable laws (including laws relating to occupational health and safety and the protections of the environment) and the procedures, standards, policies and safety requirements of the Buyer; and
(h) the Goods shall be new, of high quality, complying in all respects with the description set forth in this Order, fit for the purposes intended and free from defects in materials, workmanship and design for a period of twelve (12) months following final acceptance by the Buyer, as provided for in Clause 9 and that it will replace any defective or malfunctioning part, covered under the above warranty in accordance with the terms applicable to the original Goods. Without derogation of any other rights of the Buyer in respect of defective Goods, the Buyer shall notify the Seller in writing of any defect in the Goods that exists in or arises either before or during the warranty period, and the Seller shall immediately repair or replace the defective Goods at the point of Delivery specified in the Order, at the sole cost of the Seller. If immediate repair or replacement is not possible due to the nature of the defect, the Seller shall immediately commence and diligently pursue such repair or replacement without delays. Should the Seller either refuse or fail to commence repair or replacement as required, or, having commenced such repair or replacement, fail to diligently pursue or complete the same, the Buyer shall have the right, after written notice to the Seller, to remedy the defect by any reasonable means at the Seller’s risk, cost and expense, but no such action of the Buyer shall prejudice any other rights which the Buyer may have against the Seller in respect of any breach of this warranty. Upon completion of any such rectification by the Buyer, the Seller shall immediately on demand pay over to the Buyer all related costs and expenses incurred, plus a 15% mark-up on all costs and expenses incurred as reimbursement for the Buyer’s indirect costs, overhead, supervision and administration. In the event of any repair or replacement under this Clause 8, such repair or replacement shall be warranted in accordance with the warranty set forth above for a further twelve (12) months from the Buyer’s acceptance of such repair or replacement. In addition, the warranty shall be extended by a period equal to the period during which the Goods cannot be used by reason of the repair or replacement of any defective Goods.
The representations and warranties set forth above are continuing representations and warranties which shall be deemed to have been made by the Seller on the effective date of the Order and shall survive the satisfactory completion of the Order. In the event of a subsequent material change affecting these representations and warranties, the Seller shall immediately notify the Buyer of such change.
QUALITY CONTROL, INSPECTION, REJECTION AND ACCEPTANCE
The Seller shall provide and maintain a quality control system acceptable to Buyer. Seller’s quality control, inspection systems, and manufacturing processes are subject to review, verification, and analysis by Buyer’s representatives.
The Buyer’s representatives shall have the right to require special inspection, verification, or testing of Goods during the duration of the Order. When special inspection, verification, or testing requirements are identified, Seller shall provide, and shall require its sub-vendors and suppliers to provide, reasonable access to the Seller’s, or its sub-vendors or supplier’s, as applicable, premises and facilities and further provide assistance for the safety and convenience of the Buyer’s representatives in order to complete such special inspection, verification or testing.
Goods or Services received and not in compliance with the requirements of the Order, in the Buyer’s sole and absolute discretion, acting reasonably, shall be rejected by the Buyer’s Authorized Representative by promptly notifying Seller of any rejections and the basis therefore. Without limiting any other rights Buyer may have, after rejecting such Goods, and at Buyer’s option, Buyer may:
(i) return the Goods to the Seller, at Seller’s sole cost and expense;
(ii) hold the Goods at Seller’s cost and expense;
(iii) elect to accept the Goods at a reduced Price, determined by Purchaser, acting reasonably;
(iv) require the Seller to promptly replace the Goods; or
(v) require the Seller to provide on-site technical assistance and corrective action to ensure the Goods or Services are in compliance with the Order, at the Seller’s sole cost and expense. Seller shall promptly refund any payments of the Price made for Goods or Services provided and rejected by the Buyer, as set out above.
Unless otherwise specified in the Order, final acceptance of the Goods by Buyer will be on Delivery. Buyer’s representative’s involvement or participation in special inspection, verification, or testing requirements prior to Delivery shall not constitute final acceptance, nor shall such involvement or participation affect the Seller’s responsibility and liability for quality and reliability of the Goods and for meeting all of the requirements of the Order.
CHOICE OF LAW
The Order shall be construed in accordance with and governed by the laws of the Province of Alberta, Canada excepting therefrom any conflicts of law provisions. The Parties agree to the exclusive jurisdiction of the Provincial and Federal Courts located in Calgary, Alberta. The Parties agree that the Order is not subject to nor shall be interpreted in accordance with the United Nations Convention on Contracts for the International Sale of Goods.
INDEMNIFICATION AND SURVIVAL OF GENERAL TERMS AND CONDITIONS
The Seller shall indemnify, hold harmless and defend the Buyer, the Buyer’s affiliates, directors, officers, employees, agents and representatives (the “Buyer Indemnified Parties”), from and against any and all liabilities, claims, demands, lawsuits, judgments, losses and expenses:
(a) arising by reason of claims from any third party, including the Seller’s sub-vendors and the employees of the Seller or the Buyer, or any governmental body for any actual or asserted failure of Seller to comply with the Order or with any law, ordinance, regulation, rule, or order of any governmental or quasi-governmental body, having jurisdiction over the Order;
(b) arising from actual or asserted infringement or improper appropriation or use by the Buyer of trade secrets, proprietary information, know-how, copyright rights (both statutory and non-statutory) or patented or unpatented inventions, or for actual or alleged unauthorized use of the work of others, arising out of the use or sale of materials, equipment, methods, processes, designs, information, or other things furnished by Seller or its sub-vendors or suppliers under the Order;
(c) on account of actual or alleged contamination, pollution, or public or private nuisance arising directly or indirectly out of the work, including the acts or omissions to act of Seller or its subcontractors or suppliers in the performance of the work under the Order; or
(d) arising out of, as a result of, or in connection with performance of the Order, in whole or in part, by the actions or omissions of Seller, its affiliates, directors, officers, employees, agents, representatives or sub-vendors including all claims, damages or losses due to personal injury, death, or property damage, to the extent that Seller’s negligence or fault causes the personal injury, death, or property damage.
STOP WORK ORDER
The Buyer may, at any time, by written notice to the Seller from the Buyer’s Authorized Representative, require the Seller to stop all, or any part thereof, of the work required by the Order (the “Stop Work Order”). Upon receipt of the Stop Work Order, the Seller shall immediately:
(a) acknowledge receipt by written notice to the Buyer and
(b) comply with the Stop Work Order’s terms; and
(c) take all reasonable steps to minimize the incurrence of costs related to the work covered by the Order during the period of work stoppage.
Within 90 days after a Stop Work Order is delivered to the Seller, or within any extension of that period, as agreed to by the parties in writing, the Buyer shall either:
(a) cancel the Stop Work Order; or
(b) terminate the work covered by the Order as provided in Clause 13 below.
If a Stop Work Order issued under this Clause 12 is cancelled or the period of the Stop Work order or any extension thereof expires, the Seller shall resume work under the Order. The Buyer shall make an adjustment in the Delivery schedule or Order Price, or both, and the Order shall be modified, in writing, accordingly.
(a) Termination for Convenience
The Buyer reserves the right to terminate the Order, or any part thereof, at any time by written notice to the Seller. Immediately upon receipt of such notice of termination, the Seller shall cease, and shall cause its sub-vendors to cease, as applicable, all Services and work respecting the Goods in connection with the terminated portion of the Order.
If the Goods are standard stock merchandise, the Buyer may terminate all or any part of the undelivered portion of the Goods at any time by written notice to the Seller, and in such event the Buyer shall have no further obligation for any charges or payment hereunder, except to make payment for the Goods for which the Order is not terminated and the Goods that have already been delivered.
For Goods not of standard stock, the Buyer shall pay to the Seller an equitable adjustment to include:
(a) all amounts due and not previously paid to the Seller for Goods completed in accordance with the Order prior to such notice, and for work thereafter completed as specified in such notice;
(b) a reasonable amount for any Goods then in production, provided that no such adjustment shall be made in favour of the Seller with respect to any Goods which are Seller’s standard stock; and
(c) reasonable costs of settling and paying claims arising out of the Order.
The Seller shall provide auditable documentary evidence of all such costs set out in this Clause 13(a) and shall not include any other direct damages, or any indirect or consequential damages including, without limitation, loss of profit, all claims for which the Seller agrees to waive. The total of all payments shall not exceed the total value, inclusive of taxes, of the Order.
Upon payment as outlined in this Clause 13(a), as applicable, the Seller shall make Delivery as specified in the Order and to the extent possible considering Goods completed or partially completed at the date of notice of termination. Ownership of Goods, whether complete or partially complete, shall vest with the Buyer upon the earlier of Delivery of such Goods or partially completed Goods to the location specified in this Order or upon payment for such Goods or partially completed Goods.
Termination hereunder shall not relieve the Seller of its obligations under the terms of the Order, as amended, which by their nature survive completion of the Goods including, without limitation, guarantees and indemnities. For parts of the Order that are not terminated, on-going Goods shall be completed in accordance with the terms of the Order.
(b) Termination for Cause
(a) the Seller:
(i) shall institute proceedings to be adjudicated as a voluntary bankrupt or shall consent to the filing of a bankruptcy proceeding against it,
(ii) shall file a petition or answer or consent seeking reorganization, readjustment, arrangement, composition or similar relief under applicable laws,
(iii) shall consent to the appointment of a receiver, liquidator, trustee or assignee in bankruptcy, or
(iv) shall voluntary suspend the transaction of its usual business;
(b) a court having jurisdiction shall have entered a decree or order (that has not been stayed pending an appeal):
(i) adjudging the Seller bankrupt or insolvent under applicable laws, or
(ii) for the appointment of a receiver, trustee or assignee in bankruptcy of the Seller; or
(c) any proceeding with respect to the Seller is commenced under the Bankruptcy and Insolvency Act (Canada) or similar legislation relating to a compromise or arrangement with creditors or claimants, then the Buyer shall have the right, by written notice to the Seller, to terminate the Order in whole or in part for cause, without prejudice to any of its other rights arising out of such default by the Seller.
If the Seller shall fall behind schedule in the performance of the Order, or suspend or abandon the work on the Order, or default in any other obligation under the Order, the Buyer shall give the Seller written notice of such default, and if the Seller fails to immediately correct, or if immediate correction is not possible, to immediately commence and diligently pursue correction, the Buyer shall have the right by written notice to terminate the Order, in whole or in part, for cause, without prejudice to any of its other rights arising out of such default by the Seller.
If the Buyer terminates the Order in whole or in part pursuant to this Clause 13(b), the Seller shall, upon request of the Buyer, promptly advise the Buyer of all outstanding subcontracts and sub-orders placed in connection with performance of the Order and shall provide Buyer with complete copies thereof. Seller shall thereafter comply with the instructions of Buyer in regard to the assignment to the Buyer or other disposition of such subcontracts and sub-orders.
If Buyer terminates the Order in whole or in part pursuant to this Clause 13(b), Buyer reserves the right to take ownership of the Goods, or any part thereof, and all raw materials and parts connected therewith to enable Buyer to complete the fabrication/manufacture of the Goods. Buyer shall pay Seller all amounts due and not previously paid to Seller for Goods completed in accordance with the Order prior to such termination, and a reasonable amount for any Goods then in production, provided that no such adjustment shall be made in favour of the Seller with respect to any Goods which are Seller’s standard stock, and further provided that nothing in this Clause 13(b) shall require Buyer to pay for any Goods, completed or otherwise in production, that it does not wish to purchase or take ownership of. Ownership of such purchased Goods or portion thereof shall transfer to Buyer upon Buyer taking possession of such Goods or portion thereof.
Buyer may complete the performance of portions of this Order terminated for cause by any reasonable means, including purchase of substitute Goods, and Seller shall be liable for any additional costs incurred by Buyer in so doing beyond the amount due to Seller hereunder, provided that such costs incurred by Buyer are reasonable and in accordance with the Seller’s prices under the Order.
Seller shall not cede its rights, nor transfer or assign its obligations under the Order, in whole or in part, without first obtaining the written consent of Buyer, which consent may be withheld in the sole and absolute discretion of Buyer. Any cession, transfer or assignment in violation of the foregoing shall, at the option of Buyer, be void. Buyer shall have the unrestricted right to cede, transfer or assign its rights under the Order to such of its affiliates, subsidiaries, holding companies, successors or assigns as it may direct. Any cession, transfer or assignment allowed under the Order shall not, however, relieve the Party making such cession, transfer or assignment from any of its obligations under the Order.
WAIVERS AND SEVERANCE
Failure of Buyer to insist on strict performance of any of the terms and conditions of the Order shall not release Seller from any of its obligations hereunder and shall not be deemed a waiver of any rights of Buyer under the Order. If any provision of the Order is held to be unenforceable, all other provisions of the Order shall nevertheless continue in full force and effect and the Parties shall thereafter come to mutual agreement regarding replacement of such unenforceable provision.
COMPLIANCE WITH FEDERAL, PROVINCIAL, AND LOCAL LAW
In the performance of the Order, Seller agrees to comply with all applicable Federal, Provincial, and local laws, ordinances, rules, regulations, and orders including all applicable environmental laws, ordinances, rules, regulations and orders.
INVOICES, PAYMENT AND AUDIT
Seller shall submit invoices to Buyer either via mail, electronic means or such other means of delivery as the Parties may agree and is shown in the Order. Any invoice submitted in advance of the event to which it relates may be rejected by Buyer. Except to the extent expressly stated otherwise in the Order, Seller shall be paid upon receipt of proper invoices accompanied by all required documents and in the manner set out in the Order. It is specifically agreed by the Parties that payment by Buyer shall not be construed as a waiver of any of Buyer’s rights under the Order. Final payment shall not relieve Seller of its warranty and other obligations under the Order. Acceptance of final payment by Seller shall constitute a waiver of any and all claims by Seller and/or its sub-vendors against Buyer.
Each invoice of the Vendor must contain:
(a) the Vendor’s name and address;
(b) the Purchaser’s name and address;
(c) the issue date of the invoice and individual invoice number;
(d) the Order number;
(e) the Order item number for each item invoiced;
(f) the quantity of each item invoiced; and
(g) a description of each item invoiced, including tag/equipment number or commodity code, where applicable, with reference to payment terms and/or other special terms in the Order. Failure to comply with the above invoicing instructions and any other invoicing instructions provided with the Order may delay or prevent payment to Seller.
Invoices shall, whenever so requested in writing by Buyer’s Authorized Representative, be accompanied by a declaration signed by Seller and all sub-vendors and/or subcontractors confirming that Seller is entitled to pass title in respect of the Goods, failing which Buyer shall be entitled to make direct payment to any sub-vendor and/or subcontractor of any amount that is due to or becomes due to such sub-vendor or subcontractor and to deduct the amount of such payment from the Price.
If an error is discovered in any invoice, the amount of such error shall be adjusted by Seller in a manner satisfactory to both Parties, acting reasonably, in subsequent invoices; provided, however, that neither Party shall be entitled to seek an adjustment in respect of any invoice error unless a claim therefor is made within twenty-four (24) months from the date the invoice is paid Buyer.
Seller shall, and shall cause its sub-vendors to, keep at its usual place of business proper and detailed books, accounts, records and documentation complete in every material respect of performance of the Order (collectively, the “Books and Records”). Buyer shall have the right to audit the Books and Records for the purpose of verifying the proper performance by Seller and its sub-vendors of its obligations hereunder; verifying the amounts and costs payable by Buyer under the Order; and in respect of rates, fees, or prices under the Order which are fixed, to confirm the correct application of and calculation using such rates, fees and prices in any invoice issued to Buyer hereunder. Buyer may, at its own cost, conduct any such audit by authorized representatives of its own, or by any public accounting firm selected by it, during normal business hours at any reasonable time or times during the performance of the Order and prior to the end of the period ending twenty-four (24) months from the date of final acceptance under the Order. Buyer may reproduce and retain copies of all Books and Records. Seller shall refund to Buyer any overpayment discovered by such audit, and Buyer shall pay Seller the amount of any underpayment discovered by such audit
Seller’s monies due or to become due under any Order are subject to deduction by Buyer for any setoff, counterclaim or payment of any obligation of Seller owed to Buyer or any other parties, including Seller’s sub-vendors or subcontractors, arising out of this or any other Order between the Parties. If Seller subcontracts any of the work under an Order, Buyer may withhold payment to Seller, without incurring any penalty or interest charges, until Seller executes an affidavit that all such subcontractors have been paid in full.
The rights and remedies herein reserved to Buyer shall be cumulative and additional to any other or further rights and remedies provided in law or equity.
The information contained in the documents provided by Buyer in connection with the Order is confidential. Seller shall not, without the prior written consent of Buyer, which consent may be withheld in the sole and absolute discretion of Buyer, use, copy or reproduce, publish, or disclose to any newspaper, periodical, publication or other third party, nor cause nor allow any of its servants, agents, sub-vendors or employees to use, copy or reproduce, publish or disclose, any information relating to the Order, including its existence. If so required by Buyer, Seller shall cause any of its servants, agents, sub-vendors or employees to enter into a direct written obligation to Buyer to comply with the provisions of this Clause 19. All such documents furnished by Buyer to Seller shall remain the property of the Purchaser, and upon the later of completion of the Order or determination of any claims arising pursuant to the Order, Seller shall, if so requested by Buyer, either destroy or return to Buyer all such documents including any copies thereof pertaining to the Order. This Clause 19 shall survive termination, cancellation or expiration of the Order for a period of five (5) years from the date of the Order.
Information provided by Buyer for purposes hereof shall not be deemed confidential and the confidentiality obligations of Seller under the Order shall not apply when such information:
(a) is already known by Seller;
(b) is or becomes in the public domain through no wrongful act of Seller;
(c) is rightly received from a third party not under a confidentiality obligation to Buyer;
(d) is independently developed by Seller without breach of the Order;
(e) is required to be disclosed pursuant to requirements of a governmental agency or is required by operation of law; or
(f) is approved for release by written authorization to Seller from Buyer. The burden of proof that any information falls within the provisions of this Clause 19 lies with the Party relying on this Clause 19.
RESPONSIBILITY FOR PROPERTY
All Buyer furnished property shall be identified in the Order.
(a) Intellectual Property
For the purposes of this Clause 20(a), all inventions, patent rights, design rights, copyrights, trade secrets, and trademarks shall be referred to as “Intellectual Property Rights”. Nothing contained herein gives any Party any right, interest or ownership in the Intellectual Property Rights of the other Party, which pre-existed the date of the Order.
Seller shall promptly notify Buyer of any discovery or invention conceived by Seller or any of its sub-vendors or subcontractors for any material, process, equipment, method or device developed through the performance of the Order, and Seller shall assign or cause to be assigned to Buyer, without charge and in a form acceptable to Buyer, all Intellectual Property Rights associated with such discoveries or invention conceived by Seller or any of its sub-vendors or subcontractors. Seller shall, and shall cause its employees, sub-vendors and subcontractors to, cooperate with Buyer to assign such Intellectual Property Rights to Buyer and, as may be required, to assist Buyer in the preparation and filing of any applications for the preservation, protection and registration of such Intellectual Property Rights.
(b) Buyer Furnished Property
This Clause 20(b) shall apply to any Buyer property furnished to the Seller for use, repair or other services in connection with the Order that are to be returned to the Buyer (“Buyer Furnished Property”). The Seller shall maintain adequate records and procedures to ensure that the Buyer Furnished Property can be readily accounted for and identified at all times while in the custody or possession of Seller or Seller’s sub-vendors or subcontractors. Seller shall use the Buyer Furnished Property for the period and purpose identified in the Order. Seller shall be responsible for returning any such Buyer Furnished Property in as good condition as when received from Buyer, except for reasonable wear and tear, or for the utilization of it in accordance with the provisions of the Order. Ownership and Title to all Buyer Furnished Property shall remain with the Buyer. Seller shall be liable for any loss or destruction of or damage to Buyer Furnished Property caused by Seller’s failure to exercise such care and diligence as a reasonable prudent owner of similar property would exercise under similar circumstances. Seller shall hold Buyer harmless and shall indemnify Buyer against all claims for injury to persons or damage to property of Seller or any other party arising from Seller’s possession or use of the Buyer Furnished Property or arising from the presence of that Buyer Furnished Property on Seller’s premises or property.
Seller shall make no publicity releases or announcements concerning the Goods, Services, or the Order or participation with respect to the Order without the prior written consent of Buyer, which consent may be withheld in the sole and absolute discretion of Buyer. Seller shall require all sub-vendors, sub-contractors and suppliers to comply with this requirement.
If performance of work under the Order requires Seller to enter upon property controlled, owned, or operated by Buyer, Seller shall, at its sole expense, secure and maintain, as a minimum, the following insurances and shall ensure that those insurances, including insurances of its sub-vendors and sub-contractors are in full force and effect throughout the term of the Order. All such insurances to be placed with reputable and substantial insurers, satisfactory to Buyer, acting reasonably:
(a) Commercial General Liability Insurance having a limit of Two Million ($2,000,000) Dollars inclusive per occurrence, for bodily injury, death and property damage;
(b) Automobile Liability Insurance having a limit of Two Million ($2,000,000) Dollars inclusive per occurrence, for bodily injury, death and property damage;
(c) Workers’ Compensation Insurance covering all Vendor employees working on this Order;
(d) Employers Liability Insurance having a limit of One Million ($1,000,000) Dollars inclusive, per occurrence, for bodily injury or death; and
(e) All Risks Insurance covering the replacement cost value of tools, equipment, materials and supplies with such coverage to apply regardless of fault or how loss or damage results.
Each policy of insurance carried by Seller and each of its sub-vendors and subcontractors, other than Employers Liability and Workers Compensation, shall include Buyer and its affiliates, and its respective directors, officers and employees (the “Buyer Group”) as additional insureds. To the maximum extent permitted by applicable law, all insurances required shall be endorsed to provide that underwriters waive any rights of recourse, including in particular subrogation rights, against the Buyer Group.
On request by Buyer, Seller shall furnish Buyer with certificates of insurance for insurances required hereunder by giving evidence to the type and scope of each insurance. Each policy of insurance carried by Seller and each of its sub-vendors and subcontractors as set forth above shall include endorsements providing that the insurer shall give thirty (30) days advance notice to Buyer in the event of cancellation or material change in coverage.
All of the insurance policies which Seller is required to arrange under the Order shall be considered as primary insurance in relation to insurances arranged by Buyer without any contribution from any such Buyer arranged insurance policy. All of the insurance policies which Seller is required to arrange under this Order shall be written on an occurrence based coverage policy.
Nothing in the Order shall be deemed or construed to make Seller or any of its sub-vendors or subcontractors or any of their employees or agents the employees, agents, or representatives of Buyer. In the performance of the work related to the Order, Seller shall be an independent contractor and shall have complete responsibility for and control over the means, manner and method of performing the work and of providing the Goods to Buyer. Nothing in the Order shall be deemed or construed to create an agency or partnership relationship between the Parties.
All instructions, directions and notices from Buyer to Seller, and all notices from Seller to Buyer for the purposes of the Order shall be conveyed in writing addressed to Buyer’s Authorized Representative, in the case of Buyer, and the authorised representative of Seller, in the case of Seller, and shall be sent by courier, telefax, e-mail or hand delivery during the normal office hours of the addressee to a responsible person of the addressee at its address set out in the Order.
Any notice which:
(a) is delivered by hand at the addressee’s address, shall be deemed to have been received by the addressee at the time of delivery;
(b) is sent by courier to the addressee at its address, shall be deemed to have been received by the addressee on the next Business Day after delivery by the courier service;
(c) is sent by telefax to the addressee’s telefax number stated in this Order, shall be deemed to have been received by the addressee on the next Business Day following the date it was transmitted; or
(d) is sent by e-mail to the addressee’s e-mail address stated in the Order, shall be deemed to have been received on the day in which receipt of transmission is confirmed in writing by reply e-mail from the receiving party to the sending party’s e-mail address stated in the Order. The Order reference shall be quoted on all correspondence, notices or other documents of any description relating to the Order.
In no event shall either party be liable hereunder for any special, incidental, indirect, contingent or consequential losses or damages, including but not limited to, loss of use or loss of profit, whether or not caused by either party’s negligence.
Seller shall not, without the prior written approval of buyer, which approval may be withheld in the sole and absolute discretion of buyer, enter into any subcontract with a sub-vendor or subcontractor for the performance of the whole or any part of the order. The consent of buyer to the appointment of any sub-vendor or subcontractor shall not relieve seller of any of its obligations under the order. Seller shall ensure that each sub-vendor or subcontractor is fully informed of the requirements of the order and that any subcontract is placed upon terms and conditions compatible with the rights of buyer under the order.
Headings in these General Terms and Conditions are for reference purposes only and shall not be utilized in the interpretation of these General Terms and Conditions.
Wherever the words “include”, “includes” and “including” are used herein, such words shall be deemed to be followed by the words “without limitation”. Words importing the singular include the plural and vice versa.
Any reference herein to a statute is a reference to it as re-enacted, varied, amended, modified, supplemented or replaced from time to time.
All dollar amounts stated herein are expressed, and are to be paid, in Canadian dollars, unless otherwise specified.