The following expressions shall have the following meanings:
“Agreement” shall mean the undertaking by the Parties to perform their respective duties, obligations and responsibilities as described in any or all of the Orders, Specifications and General Terms and Conditions of Purchase. For greater certainty, the Agreement shall consist of the Orders, Specifications, General Terms and Conditions of Purchase, and any other document(s) expressly incorporated by reference.
“Purchaser” shall mean RES Canada Construction L.P.
“Specification” shall mean the standards, technical descriptions (if any), drawings, designs, samples, packing or other specifications or representations of the Goods contained or referenced in an Order as approved, adopted or made by Purchaser.
Terms and Conditions Generally. These terms and conditions apply in preference to and supersede any terms and conditions referred to, offered or relied upon by Supplier whether in negotiation or at any stage in the dealings between Purchaser and Supplier with reference to the Goods to which this Agreement relates. Without prejudice to the generality of the foregoing, Purchaser will not be bound by any standard or printed terms furnished by Supplier in any of its documents unless Supplier specifically states, in writing, separately and in a font distinguishable from any boilerplate, that such terms specifically apply to Purchaser specifically and that Purchaser acknowledges such notification in writing. Except as set forth herein, nothing herein shall deprive Purchaser from its rights under statutory or common law. Any clause required to be included in an order of this type by any federal, provincial or local law, regulation, ordinance, by-law or administrative rule having the effect of law shall be deemed to be incorporated herein.
WRITING REQUIRED. NO RESPONSIBILITY WILL BE ACCEPTED BY PURCHASER FOR ANY ORDER UNLESS CONFIRMED BY PURCHASER IN WRITING.
Specifications. All Goods furnished in any way to Purchaser shall be deemed to constitute a certification by Supplier that such Goods strictly conform to the Specifications. Supplier shall not alter or amend in any way the Specifications of the Goods without the prior written approval of Purchaser.
Cancellation. Purchaser reserves the right to cancel an Order at any time by giving written notice to Supplier. Purchaser acknowledges that cancellation may cause loss and expense to Supplier; therefore, (a) Purchaser will be liable to pay the Supplier in accordance with the cancellation schedule specified in the Order; or (b) if a cancellation schedule is not specified in the Order, provided that Supplier can establish to the satisfaction of Purchaser that it has actually suffered direct loss and expense, Purchaser will be liable to pay Supplier an amount up to and including the price of the actual Order cancelled less the resale proceeds received by Supplier or the salvage value thereof if not resalable, and in each case such payment shall constitute Purchaser’s sole liability upon cancellation.
Quality Assurance. Supplier is required to operate to a quality system which ensures that the quality of the Goods to be provided conforms to the Specifications. Supplier warrants it has the necessary facilities and expertise to carry out the requirements of the Order, and hereby grants to Purchaser the right to inspect and/or otherwise investigate Supplier’s abilities and premises. Purchaser shall further have the right to make inspections and tests of the Goods in the process of manufacture, fabrication, in transit and/or storage, including the review of the quality control methods and procedures in effect. Prior to the commencement of production by Supplier, should Purchaser determine, in its sole discretion, that the facilities are inadequate or that improper materials or techniques of production, handling, installation, shipment, storage, etc. are being used, it may cancel an Order in whole or in part, stop or reject all or part of the Goods, or take whatever action it deems appropriate to protect its interests, notwithstanding any term or condition of the Agreement, and in such case shall be under no liability whatsoever to pay Supplier for the Goods, or parts thereof, which that are the subject of the cancellation, stoppage or rejection pursuant to this term. It is specifically understood by Supplier that Purchaser is not under any obligation to make any of the inspections and tests referred to herein, and no inspection or test which Purchaser shall have made in any way relieves Supplier from its responsibilities under any Order. It is further understood by Supplier that the aforementioned quality assurance steps are necessary for Purchaser to retain its ISO 9000 status and that Supplier’s compliance with the requirements of this paragraph is paramount.
Obsolescence and Spare Parts. Supplier shall provide at a fair price to be agreed between Supplier and Purchaser spare parts for a period of five (5) years or such lengths of time as may prescribed by any proper government authority after the date of delivery.
Release of Lien or Legal Hypothec. Supplier agrees to deliver to Purchaser with each invoice, as a condition of payment of the amounts invoiced, a duly executed statutory declaration of payment in the form attached to the Order.
Anticipatory Repudiation. If Supplier repudiates an Order with respect to performance not yet due, Purchaser may immediately cancel the Order upon written notice to Supplier and immediately thereafter resort to any remedy for Supplier’s breach available to Purchaser under this Agreement or applicable law; provided, however that Supplier shall have the right to suspend performance of its obligations under the Order in the event that Purchaser (a) fails to make any undisputed payment when due and such default is not cured within 90 days of receipt of written notice from Supplier, or (b) files, or has filed against it, bankruptcy or insolvency proceedings, has a receiving order made against it, commences procedures to be wound up (such procedures not constituting a voluntary winding up for the purpose of reconstruction or amalgamation), or if a receiver shall be appointed in respect of whole or any part of the undertaking and assets of Purchaser.
Pricing. The prices stated in an Order are firm and not subject to variation unless as a result of a New Import Tax or as otherwise agreed by Purchaser in writing. All payments shall be made in Canadian currency unless the Agreement provides otherwise. All undisputed claims for money due or to become due from Supplier shall be subject to deduction or setoff by Purchaser or its Affiliates by reason of any claim arising out of this Agreement or any other transaction with Supplier. The price of an Order is to include all royalties or other charges which may be claimed or required to be paid in respect of any licenses to any patents, copyrights, trademarks or other intellectual property (together, “Intellectual Property Rights”) necessary to enable Purchaser (and Purchaser’s successors and assigns) freely to employ and use any Goods supplied, whether or not such Good is specifically designated in the quotation as subject to such Intellectual Property Rights.
Invoices/Payment Terms. Supplier shall submit its invoices in form satisfactory to and as may be required by Purchaser. Invoices may be submitted to cover deliveries in whole or in part of the Goods covering an Order. Supplier recognizes that all or some of the Goods may form a part of work being performed by Purchaser under a contract with the Purchaser’s client, and invoices for deliveries made by Supplier may be incorporated by Purchaser into Purchaser’s overall billing under such contract. Payments will be made within thirty (30) days after Purchaser’s approval of Supplier’s invoice. Where Goods are subject to provincial construction or mechanics’ lien, or legal hypothec legislation, payment for those Goods will be in strict accordance with any holdback and release of holdback provisions of the applicable statute, if any. When discounts are offered by Supplier for prompt payments, the discount period shall be computed starting with the later of (a) the date of acceptance by Purchaser of the Goods, or (b) the date the invoice therefor was approved by Purchaser. Purchaser’s payment for all or any part of the purchase price shall not constitute a waiver of any of Purchaser’s rights hereunder or at law.
Packaging. All Goods must be securely packed free of charge in such manner as to reach Purchaser in good condition. Supplier shall fully and accurately describe the Goods on all stickers, labels, invoices, packing and delivery notes and in any descriptions which appear on any container or other matter covering, containing or protecting the Goods. Supplier shall submit with the Goods full instructions for use and clear warnings with respect to anything which may reasonably be done or not done in relation to the Goods and which act or omission could render them unsafe. Purchaser will not accept any charge in respect of packing cases and other packing materials and will not be responsible for returning, or for the cost of returning, any such packing cases and materials. THE ORDER NUMBER WILL BE INDICATED ON ALL INVOICES, CORRESPONDENCE AND PACKING SLIPS.
Material Safety Data Sheets. Supplier shall provide a legible copy of any Material Safety Data Sheets (“MSDS”) that are applicable to the Goods two (2) weeks prior to delivery of the Goods. The information provided shall be the most recent copy of the MSDS as published bythe original material manufacturer.
Health and Safety. Supplier shall be entirely responsible for fulfilling its obligations under this Agreement in strict compliance with all applicable provincial occupational and/or workplace health and safety legislation in carrying out its obligations under the Agreement.
Shipping. All shipments of Goods shall be forwarded in accordance with Purchaser’s instructions, and unless specified otherwise in an Order, shall be DDP (pursuant to Incoterms 2020) at the point designated by Purchaser. The cost of freight and/or other shipping costs are included in the prices stated in an Order, unless otherwise provided in the terms hereof. All shipments shall be adequately insured with Purchaser’s interests, if any, fully covered thereby. The risk of loss in the shipping of the Goods covered by an Order shall remain with Supplier until delivered and unloaded to the delivery address provided in the Order.
Delivery. It is acknowledged that in respect of the delivery, time is of the essence. Supplier shall comply in all respects with the delivery date(s) specified in an Order. If for any reason Supplier is unable to do so, Supplier must notify Purchaser promptly in writing, although such notification shall not prejudice Purchaser’s rights and Supplier’s liabilities in respect of such default. Purchaser reserves the right to refuse delivery of any such part or portion of the Goods if they are supplied before the delivery date(s) specified in an Order. If such right is exercised by Purchaser, all charges relating therefrom shall be the responsibility of Supplier. Supplier will fax/e-mail to Purchaser’s receiving department all packing slips in advance of Supplier’s next delivery. Supplier will give Purchaser a minimum of 24 hours’ advance notice for standard deliveries and 72 hours’ advance notice for deliveries requiring permits. Shipments will not be accepted later than 2:00 pm, Monday through Friday, and will not be accepted on the weekends. Personal Protective Equipment (PPE); to include hard hat, safety shoes, eye protection, and reflective vest is required of all delivery personnel prior to entering site. Drivers will not be allowed to exit their vehicle without proper PPE.
Acceptance of Goods. The Goods shall be subject to Purchaser’s inspection and acceptance. THE GOODS SHALL NOT BE CONSIDERED ACCEPTED BY PURCHASER UNLESS AND UNTIL THE EARLIER TO OCCUR OF THE FOLLOWING: (A) SUPPLIER RECEIVES A WRITTEN NOTICE STATING THAT THE GOODS HAVE BEEN ACCEPTED BY PURCHASER OR (B) NINETY (90) DAYS HAVE PASSED SINCE PURCHASER RECEIVED THE GOODS AT PURCHASER’S DELIVERY LOCATION. Any acceptance by Purchaser of the Goods covered by an Order shall be without prejudice to any rights that Purchaser may have against Supplier.
Rejection of Goods. The Goods shall be new and unused and free of defects in design, workmanship, and materials. The Goods shall be in every respect equal to the description or samples supplied to Purchaser and to previous supplies (if any). If the Goods are not equal to the Specifications, Purchaser may reject the Goods within three (3) business days of receipt of the Goods by written notice to Supplier (which notice shall provide a description of defects), in which case the Goods shall be held at Supplier’s risk, shall be returnable at Supplier’s expense, and shall not be deemed accepted, approved or delivered. Instead of rejecting any nonconforming Goods, Purchaser may elect to accept the Goods and make such Goods fit for their purpose, in which case Supplier shall be debited with any cost thereof.
Non-Delivery. If Supplier does not deliver the Goods, or any part thereof, within the date range (or if no range is specified, by the delivery date(s) specified in an Order), and such failure is due to the acts or omissions of Supplier, Purchaser shall be entitled to terminate the Order, purchase replacement Goods of the same or similar description (“Replacement Goods”) to make good such default, and recover from Supplier the amount by which the cost of purchasing the Replacement Goods exceeds the price which would have been payable to Supplier in respect of the Goods replaced, without prejudice to any other remedy Purchaser may have under this Agreement or applicable law.
Excess Quantities. Any Goods delivered in excess of the amount stated in an Order and not accepted by Purchaser shall remain the responsibility and risk of Supplier and must be removed by Supplier at Supplier’s own expense. Purchaser shall take reasonable steps to notify Supplier of such excess.
Title of Goods. Title to the Goods shall pass to Purchaser when the Goods are delivered to Purchaser at the delivery address stipulated on the Order and accepted by Purchaser. The passage of title to the Goods to Purchaser shall in no respect relieve Purchaser of its obligation to pay Supplier in accordance with the terms of this Agreement nor shall it mitigate, reduce or waive Supplier’s lien rights or other remedies available at law in the event of non-payment by Purchaser. Until such delivery and acceptance is made, title to the Goods shall remain with Supplier, and the Goods shall remain at Supplier’s risk in all respects.
General Warranty. PURCHASER SHALL HAVE THE BENEFIT OF ALL WARRANTIES IMPLIED AT LAW AND ALL EXPRESS WARRANTIES MADE BY SUPPLIER HEREUNDER. Supplier’s warranty shall run to Purchaser, its successors, assigns, customers and users of the Goods purchased hereunder. Supplier expressly warrants that all Goods furnished shall conform to all Specifications.
Warranty of Merchantability. Supplier expressly warrants that all Goods will be merchantable and will be safe and appropriate for the purpose for which Goods of such kind are normally used. Further, Supplier expressly warrants that the Goods furnished hereunder will be free of defects in design, materials, assembly and workmanship, new, unused and undamaged when delivered until the earlier of: (a) twenty-four (24) months from date of acceptance by Purchaser, or (b) thirty (30) months from date of receipt by Purchaser.
Compliance with Laws. Supplier expressly warrants that all Goods shall comply with all applicable federal, provincial or local laws, regulations, ordinances, by-laws or administrative rules. Supplier shall obtain all permits necessary for the performance of each Order.
Title. Supplier warrants that it has good title to the Goods supplied hereunder and that all such Goods will be delivered free of any and all claims, demands, liens, security interests or any other encumbrances. In the event of a breach of this warranty, Purchaser shall promptly notify Supplier, and at Supplier’s expense, Supplier will defend the title to any affected Goods and, if unsuccessful, will promptly provide to Purchaser at no cost, replacement Goods which comply with this warranty and the remainder of this Agreement. Without limiting the generality of any provision of this Agreement, in the event that Purchaser suffers any claim, cost, expense, loss or damage, whether direct or consequential, by reason of the Supplier supplying goods to which it does not have good title, Supplier shall indemnify, defend and hold harmless Purchaser, its employees, agents, customers and invitees against all such claims, costs, expenses, losses or damages, whether direct or consequential.
Remedies for Supplier’s Breach of Warranty. At Purchaser’s option, in the event any Goods supplied hereunder fail to comply with any express or implied warranty and Supplier is so notified by Purchaser in writing within twenty-four (24) months from the date of acceptance of such Goods by Purchaser, Supplier will correct such nonconformity by repair or replacement of the defective part or parts at its factory or repair facility, provided the Goods in question have been stored, installed, operated and maintained in accordance with Supplier’s previously provided recommendations, if possible. Supplier shall be responsible for all necessary freight costs, to and from the job-site, for warranty covered claims. In the event Supplier fails promptly to correct defects in or replace such nonconforming Goods, Purchaser may at its option either (a) make such corrections or replace such Goods and charge Supplier for the cost incurred in so doing, or (b) reject the nonconforming Goods and hold Supplier in default.
Fiscal Responsibility/Bonds. Supplier warrants that it is sufficiently fiscally responsible to provide the Goods in accordance with the terms and conditions of all Orders. Should Supplier’s financial condition change in any material manner from its condition at the time of entering into an Order, it shall immediately notify Purchaser. Promptly upon request, Supplier shall provide Purchaser with copies of certified or other financial statements and such other financial and credit information that Purchaser may reasonably request. If Purchaser has made all payments to Supplier when due in accordance with this Agreement, Purchaser reserves the right to require Supplier to furnish performance and payment bonds to assure Supplier’s performance under an Order in such forms and with such sureties as may be satisfactory to Purchaser.
Bankruptcy/Insolvency. If Supplier shall file, or have filed against it, bankruptcy or insolvency proceedings, have a receiving order made against it, commence procedures to be wound up (such procedures not constituting a voluntary winding up for the purpose of reconstruction or amalgamation), or if a receiver shall be appointed in respect of whole or any part of the undertaking and assets of Supplier, Supplier shall be in default of this Agreement. Upon any such default, Purchaser shall be at liberty either: (a) to terminate this Agreement and all Orders forthwith by written notice to Supplier (or to the receiver, or liquidator, or to any person in whom this Agreement may become vested), or (b) to give such receiver, liquidator or other person the opportunity of carrying out any Order which has not been filled, subject to such person providing a guarantee for the due and faithful performance of such Order.
Default. Supplier shall be in default of this Agreement upon breach of any section or subsection of the terms and conditions of this Agreement. Upon prompt notice by Purchaser to Supplier, Purchaser may undertake any of the remedies provided to Purchaser in the specific section or subsection under which the default occurred or otherwise available to Purchaser under this Agreement or applicable law; provided that the exercise by Purchaser of any remedy shall not preclude its exercise of any other available remedies, and all remedies shall be cumulative. In addition to all other remedies available to Purchaser under this Agreement and applicable law, Purchaser’s remedies for default shall include any actual damages to Purchaser arising from the breach. Supplier will be responsible for all legal fees and other expenses incurred by Purchaser to the extent that Purchaser is the successful party in any litigation or arbitration arising from Supplier’s default.
Indemnity. In addition to all warranties and conditions implied by law, Supplier shall indemnify, defend and hold harmless Purchaser, its employees, agents, customers and invitees against all direct claims, costs, expenses, losses or damages, which Purchaser may suffer arising from (a) Supplier’s breach of any of its obligations under this Agreement, including any Order, (b) defects or faults in any of the Goods covered by any Order, or (c) actual or alleged infringements of Intellectual Property Rights arising by reason of the use of the Goods covered by any Order.
Workers’ Compensation. Where applicable, prior to commencing work under the Agreement, Supplier shall provide evidence of compliance with relevant provincial workers’ compensation legislation, including payments thereunder. At any time during the term of the Agreement, when requested by Purchaser, Supplier shall provide such evidence of compliance due thereunder.
Insurance. Without limiting the generality of any obligation to indemnify Purchaser contained in this Agreement, Supplier shall provide, maintain, and pay for, at its own expense,insurance covering liability to third parties and to its employees engaged in the performance of the Agreement. Supplier’s general liability insurance shall be in effect, and be of broad form, including, but not limited to coverage for completed operations (products liability), and insurance to respond to workplace injury claims by workers who may not be subject to the relevant provincial workers’ compensation regime and/or a statutory workers’ compensation regime in Supplier’s home jurisdiction. Goods in the process of manufacture, fabrication and/or transit shall also be adequately insured by Supplier. Policies of insurance shall be in such amounts and forms, and be with such insurers, as are satisfactory to Purchaser, with the interests of Supplier and Purchaser adequately covered.
Assignment. Supplier shall not assign this Agreement, in whole or in part, or any of Supplier’s rights, interests or duties under this Agreement, without prior written consent of Purchaser, which Purchaser can withhold, condition or delay in its sole and absolute discretion. If Purchaser has made all payments to Supplier when due in accordance with this Agreement, Purchaser may assign this contract, in whole or in part, and any of Purchaser’s rights, interests or duties under this Agreement, upon written notice to Supplier.
Taxes. Any increase in import duties imposed by a governmental authority on the importation of Goods into Canada due to a change in law announced after the date of the Order (a “New Import Tax”) shall be borne by Purchaser. Other than a New Import Tax, all taxes, duties, imposts, fees or charges of any governmental body, however denominated (“Taxes”), which prior to the acceptance of the Goods, shall be levied, imposed or increased by any governmental authority, on or measured by any of the Goods remaining unshipped or unaccepted, or on or measured by any of the raw materials used in the manufacture of the Goods, or in the manufacture of the containers for the Goods, or the processing, purchase, sale, holding for sale, distribution, dealing in, transportation, use or handling of any of the Goods or such raw materials, shall be paid or borne by Supplier. All Taxes shall be shown as separate items on all Supplier’s invoices to Purchaser. If such Taxes are paid or borne by Purchaser, Supplier shall reimburse Purchaser for such Taxes. Any Taxes which Purchaser shall be finally relieved from paying or which shall later be refunded to Purchaser at any time and for any cause shall be refunded to Supplier by Purchaser after Purchaser has deducted all expenses incurred by Purchaser in preventing collection of the Taxes or securing the refund thereof. Purchaser shall not, however, be under any obligation to contest the validity of any Taxes or to prosecute any claims for refunds. Supplier shall indemnify, defend and hold Purchaser harmless from and against all liabilities for Taxes.
Confidentiality. This Agreement and all details pertaining thereto shall be treated as confidential between Purchaser and Supplier, and shall not be disclosed by one Party to any third party nor used by one Party for publicity/promotional purposes, in each case without the prior written consent of the other Party, unless required by law.
Compliance with Laws. Supplier shall, at its sole expense, obtain and maintain during the term of the Agreement, all permits, licenses and approvals required by law to perform its obligations under the Agreement. The terms and conditions of the Agreement shall be carried out in strict compliance with all federal, provincial, and local laws, regulations, ordinances, by-laws and administrative orders. Without limiting the generality of the foregoing, Supplier shall comply with the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, and any other applicable federal, provincial or local privacy legislation with respect to any personal information it collects, uses or discloses in connection with the Agreement. Supplier shall indemnify, defend and hold harmless Purchaser, its employees, agents, customers and invitees against all claims, costs, expenses, losses or damages, whether direct or consequential they may incur related to or arising out of any non-compliance herewith.
Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the province in which the project for which the Goods are to be supplied is located.
Arbitration. If at any time a dispute arises between Purchaser and Supplier upon, in relation to or in connection with this Agreement and such matter cannot be resolved through negotiation, either Party may give to the other Party notice in writing of the existence of such dispute and, at the request of either Party, the same shall be referred to the Parties’ senior management for resolution. If a resolution is not reached within ten (10) days of such referral, either Party may refer the matter to arbitration, which shall be conducted in accordance with the arbitration rules of the International Chamber of Commerce. In the event that the parties are unable to agree on an arbitration site, the arbitration shall be conducted in Toronto, Ontario.
Notices. All notices required or permitted under this Agreement shall be in writing and delivered: (a) by facsimile to Purchaser’s or Supplier’s facsimile number indicated in an Order, or (b) personally delivered or mailed, by certified mail, return receipt requested, to Purchaser’s or Supplier’s address, as applicable, indicated in an Order.
No Waiver. Any term or condition of this Agreement may be waived at any time by the Party that is entitled to the benefit thereof, but no such waiver shall be effective unless set forth in a written instrument duly executed by or on behalf of the Party waiving such term or condition. No waiver by any Party of any term or condition of this Agreement (including, for avoidance of doubt, any Order), in any one or more instances, shall be deemed to be or construed as a waiver of the same or any other term or condition of this Agreement or any Order on any future occasion. Subject to any limitation in this Agreement, all remedies, either under this Agreement, by law or otherwise afforded shall be cumulative and not alternative. No delay or omission by the Parties in exercising any right or remedy provided for herein shall constitute a waiver of such right or remedy, nor shall it be construed as a bar to or waiver of any such right or remedy on any future occasion.
Force Majeure. Purchaser may delay acceptance of Goods due to causes beyond its control for as long as reasonably necessary. If delivery by Supplier of the Goods is delayed by the occurrence of unforeseen and unforeseeable events beyond Supplier’s control, Supplier must notify Purchaser of such events as soon as they occur and give Purchaser revised delivery dates. If any delay exceeds thirty (30) days from the original delivery date, Purchaser may cancel an Order without any liability. Nothing in this section shall relieve a Party from making any payment when due under the Agreement.
Entire Agreement. This Agreement contains the whole and entire agreement between the Parties and supersedes any prior agreements, written or oral, with respect to the subject matter hereof. Purchaser shall not be bound by any provision, promise or condition not specifically set forth in writing and incorporated herein.
Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable under any present or future applicable law, and if the rights or obligations of any Party under this Agreement shall not be materially and adversely affected thereby, (i) such provision shall be fully severable; (ii) this contract shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof; (iii) the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom; and (iv) in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as a part of this Agreement a legal, valid and enforceable provision as similar in terms to such illegal, invalid or unenforceable provision as is possible.
Language. The parties hereto have expressly required that this Agreement be drafted in English.