1. DEFINITIONS AND INTERPRETATIONS
In these terms and conditions:
(a) “Days” means business days excluding Saturday and Sunday and statutory holidays.
(b) “Company” means GeoSpectrum Technologies Inc., having a place of business at 10 Akerley Boulevard, Unit 19, Dartmouth, Nova Scotia, Canada, B3B 1J4.
(c) “Seller” shall mean the party identified on the face of the Purchase Order and with whom the Company is contracting.
(d) Any use of the word “including” shall be interpreted to mean “including without limitation”.
(e) Any use of the masculine, feminine or neuter case shall be interpreted to include the other case as may be required.
(f) Any use of the singular or plural shall be interpreted to include the other case as may be required.
(g) Headings appear as a matter of convenience and do not affect the construction of the Agreement.
(h) A reference to “written” or “in writing” includes all modes of presenting or reproducing words, figures and symbols and, without limiting the generality of the foregoing, expressly includes any writing delivered in electronic format, provided all such writings are in a format that allows the recipient to permanently store the writing and retrieve it for future reference at will (including e mail).
2. ACCEPTANCE OF CONTRACT/TERMS AND CONDITIONS
(a) This Order constitutes the complete and exclusive statement of the terms of the agreement between the Company and the Seller and this Order supersedes all prior contemporaneous written or oral representations, understandings and communications.
(b) Additional or differing terms or conditions proposed by the Seller or included in the Seller’s acknowledgement of this Order shall have no force and effect unless they are expressly accepted in writing by the Company, regardless of whether or not such terms and conditions materially alter this Order and irrespective of any payment by the Company under the terms of this Order.
(c) The Seller’s acknowledgement of this Order, acceptance of payment (either partial or full), or commencement of performance of its obligations under this Order shall constitute the Seller’s unqualified acceptance of this Order.
(d) Modifications or additions to this Order, to be effective, must be made in writing and be signed by the Company’s authorized representative.
e) In the event this Order does not state price or terms of delivery, the Company shall not be bound to any prices or terms of delivery to which it has not specifically agreed to in writing.
3. ORDER OF PRECEDENCE
(a) In the event of any inconsistency or conflict between or among the provisions of these terms and conditions of purchase and any other document forming part of this Order, such inconsistency or conflict shall be resolved in accordance with the following, in descending order of preference:
i) Typed provisions on the face of the Purchase Order;
ii) Documents incorporated by reference by the Company on the face page(s) of the Purchase Order;
iii) These standard terms and conditions of purchase;
iv) Any non-disclosure agreement executed by and between the Company and the Seller;
v) The Company’s statement of work; and
vi) The Company’s specifications attached hereto or incorporated by reference.
(b) The specifications provided by the Company shall take precedence in the event of any conflict or inconsistency over the specifications of the Seller.
(c) In any cases of ambiguity in the specifications, the Seller must, before proceeding, consult with the Company, whose written interpretation of the specifications shall be considered both final and binding.
4. SELLER’S REPRESENTATIONS AND COMPLIANCE WITH LAWS
The Seller represents and warrants that:
(a) it is a duly organized business corporation, is validly existing and is in good standing under the laws of the jurisdiction of its incorporation;
(b) it is duly licensed or qualified and is in good standing wherever necessary to carry on its business;
(c) it has the power and authority and all the necessary licenses and permits to carry on its present business and operations and to perform its obligations under the requirements of this Order;
(d) it will not engage in the use of any employees in contravention of the Modern Slavery Act 2015;
(e) any and all Industrial and Technological Benefits (ITB) Canadian content credits resulting from this Order are the sole property of the Company to be applied to the ITB program of its choice. Furthermore, the Seller agrees to assist the Company as required with annual Innovation, Science and Economic Development (ISED) verification activities at no additional cost to the Company;
(f) it will advise the Company if any conflict minerals (defined as tantalum, tin, gold or tungsten) are contained in any of their products and if any of these minerals originated in the Democratic Republic of the Congo (DRC) or surrounding countries.
The Seller will comply with and observe all applicable laws, orders, statutes, rules, decrees, regulations, by-laws, ordinances, ministerial orders, rules and specifications and standards that have application to this Order and the performance by the Seller of its obligations under this Order. Should it be determined that the Seller is not in compliance with the requirements of this Article, the Company reserves the right to terminate part or all of this Order in accordance with Article 16.
5. EXPORT CONTROL
The Seller agrees to comply with all import, export control and sanction laws, regulations, orders and requirements, as may be amended from time to time, which are applicable to the performance of its obligations under this Order, including, without limitation, those of the United States (such as the Arms Export Control Act and the Export Administration Act), Canada (such as the Defence Protection Act), the European Union and any other jurisdiction in which the Seller is established or from which items may be supplied, and the requirements of any licenses, authorization, general licenses or license exceptions relating thereto. The Seller further agrees that all classified information and/or material (including classified waste) generated by, or put at the disposal of the Seller shall be stored, handled, transmitted, safeguarded and destroyed in accordance with the following:
i) if the Seller is located in Canada, such information shall be handled in accordance with the Canadian Industrial Securities Manual (CISM), including all amendments and supplements thereto; and
ii) if the Seller is located in countries other than Canada, such information shall be handled in accordance with its country’s national industrial security policy but in any event in accordance with requirements at least as restrictive as those in the CISM, including all amendments and supplements thereto. Compliance with such export control restrictions shall include, but not be limited to, the Seller obtaining, at its sole cost, any and all export license(s), manufacturing license agreements, technical assistance agreements, or other export control license/agreement necessary for the performance of its obligations under this Order. The Seller shall indemnify and hold harmless the Company from any and all claims relating to violations of such export control restrictions.
6. GOVERNING LAW
This Order and any subsequent changes thereto shall be construed and enforced in accordance with the laws of the Province of Nova Scotia.
7. WARRANTIES
(a) The Seller expressly warrants that all goods delivered and services performed pursuant to this Order will be free from defects in material and workmanship and will conform to the specifications and, to the extent such goods are not manufactured pursuant to detailed designs furnished by the Company, that all goods will be free from defects in design, are merchantable, fit and suitable for the intended purpose or use, and are new and unused. The warranty shall begin upon final acceptance by the Company or the Company’s customer, as the case may be, and extend for a period of eighteen (18) months from such acceptance or the manufacturer’s warranty period, whichever is the longer.
(b) If any non-conformity with the specifications appears within the warranty period set out in the immediately preceding paragraph, the Seller, at the Company’s option, shall promptly repair or replace the goods or re-perform the services all at the Seller’s risk and expense. Transportation of replacement goods, return of non-conforming goods, and/or repeat performance of services shall be at the Seller’s expense. In addition to the Company’s right under Article 21, if the repair or replacement of goods and/or re-performance of services is not timely, the Company may elect to return the non-conforming goods or repair or replace goods or re-procure the goods at the Seller’s expense. If non-conforming goods are replaced by the Seller pursuant to this provision hereunder, the warranty terms as defined in this Article will be renewed for such replacement articles. If the Company does not require correction or replacement of non conforming or defective goods, the Seller shall repay the portion of this Order relating to the non-conforming goods.
(c) Acceptance or inspection of the goods by the Company or their payment shall not relieve the Seller of its responsibilities under this Article.
(d) The warranties of the Seller, together with its service warranties and guarantees, if any, shall be for the benefit of the Company, as well as for the Company’s successors, assigns and customers.
(e) The Seller shall be liable for, and save the Company harmless from, any claims that the Company may suffer from breach of any of these warranties.
8. CHANGES
(a) The Company may, in writing, from time to time, order the suspension of the work under this Order or make changes in quantities, drawings, designs, form, fit, function, specifications, services, the place of delivery, or delivery schedules, methods of shipment and packaging, and property furnished by the Company. If any such change causes an increase or decrease in the price of this Order, or in the time required for the performance of the obligations of the Seller, the Seller shall promptly notify the Company and request its claim for adjustment within ten (10) days after the change or suspension is ordered. The Company and the Seller shall negotiate an equitable adjustment and this Order shall be amended in writing accordingly. However, nothing in this clause shall excuse the Seller from proceeding immediately with this Order, as changed by the notice from the Company, pending resolution of the Seller’s claim. Whether made pursuant to this clause, or by mutual agreement, changes requested by the Company shall not be binding upon the Company except when confirmed in writing by an authorized representative of the Company.
(b) Information, advice, approvals or instructions given by the Company’s technical personnel or other representatives shall be deemed expressions of personal opinion only and shall not affect the Company’s and the Seller’s rights and obligations under this Order unless set forth in writing and signed by the Company’s authorized representative.
(c) The Seller shall not make any changes to form, fit, or function of goods or make any changes to any manufacturing processes, whatsoever, for the duration of this Order without the prior written approval from the Company.
9. INFRINGEMENT INDEMNITY
(a) The Seller represents and warrants that the sale, use, or incorporation into manufactured products of all machines, parts, components, services, devices, material, goods, and rights furnished or licensed hereunder which are not of the Company’s design, composition, or manufacture will not infringe any patent, copyright, trademark, or other proprietary rights. The Seller shall indemnify and save the Company and its customers harmless from any and all claims arising from claims, suits, or actions alleging such infringement. The Seller may modify or replace with comparable non-infringing goods acceptable to the Company of substantially same form, fit and function so as to remove the source of infringement. If the use or sale of any of the above items is enjoined as a result of such claim, suit or action, the Seller, at no expense to the Company, shall obtain for the Company and its customers the right to use and sell said item.
(b) Any invention or intellectual property first made or conceived by the Seller in the performance of this Order or which is derived from or based on the use of information supplied by the Company or which is paid for by the Company shall be and remain the property of the Company; and the Seller shall execute any documents necessary to establish the Company’s title thereto.
10. SELLER’S DATA
The Seller agrees that any documents, such as prints or any printed or written material containing instructions, data, or information, provided to the Company in connection with this Order, shall be free from confidential, proprietary, or restrictive use marking, other than bona fide statutory patent, trademark and copyright notices, or any government or security notices. The Company, its customers, agents or assigns, may duplicate or use such documents in connection with further manufacture, use, or disposition of the material furnished under this Order, and may remove, or ignore any marking on such documents not authorized by this clause.
11. PROPERTY RIGHTS
All goods, materials, drawings, tools, jigs, dies, fixtures, and other items furnished by the Company or the Company’s customers to the Seller or paid for by the Company to perform this Order, shall be and remain the property of the Company or the Company’s customer, as the case may be. The Seller shall bear the risk of loss of, or damage to, such property, as applicable, except for normal wear and tear and such property shall not be used by the Seller for any purpose other than the performance of this Order unless the Company otherwise consents in writing, nor shall the Seller substitute any other material. Upon completion of the work and use of such property, and/or upon the written request of the Company, such property shall be immediately released to the Company, or delivered to the Company by the Seller in accordance with the Company’s shipping instructions. In the event the Seller fails to return such property to the Company, the Company shall have the right, upon reasonable notice to the Seller, to enter the Seller’s premises at any time and remove any such property and the Seller’s records without liability for trespass or damages of any sort.
12. PROPRIETARY INFORMATION, DUPLICATION, AND DISCLOSURE
(a) The Seller agrees that any information disclosed by the Company to the Seller in connection with this Order, whether identified by the Company as proprietary or not, shall be held in strict confidence and shall be used by the Seller only in the performance of this Order. Upon completion or termination of this Order, the Seller shall return all such information to the Company or make such other disposition thereof as may be directed or approved by the Company.
(b) No information or materials furnished under this Order, or tools, plans, designs, or specifications for producing the same, which have been specifically designed for or by the Company, shall be duplicated or furnished to any third party without the prior written consent of the Company.
(c) The Seller represents and warrants that it has obtained or it agrees to obtain appropriate agreements with all of its personnel, agents or contractors and any other person or entity performing work on behalf of the Seller relating to the performance of this Order, confirming that all such personnel, agents or contractors shall assume the same obligations and responsibilities towards the Seller as outlined herein.
13. PUBLICITY
Unless the Company gives prior written consent to the Seller, the Seller shall not, in any manner, advertise, publish, distribute, or use any information developed under or about the subject matter of this Order, or use, reproduce or imitate for any purpose whatsoever any trademarks or tradenames of the Company in the Seller’s advertising materials, promotional materials or in other materials available to the public. No news release in any way relating to the Company concerning this Order shall be made by the Seller to any news media or the general public without the prior written consent of the Company. The Seller shall not disclose the existence of this Order to any other party without the prior written consent of the Company.
14. ASSIGNMENTS AND SUBCONTRACTING
(a) This Order may not be assigned, in whole or in part, by the Seller without the express written consent of the Company. Any purported assignment by the Seller without such consent shall be null and void.
(b) The Company may assign this Order to:
(i) any affiliated company;
(ii) any successor in interest; or
(iii) the Company’s customer.
The Company shall have the right at any time to set off any amount owing from the Seller to the Company or against any amount due and owing to the Seller or any of its subsidiaries pursuant to this Order or any other contractual agreement between the Company and the Seller.
(c) The Seller shall not subcontract all or substantially all work on any of the goods to be supplied or services to be performed under this Order, without the prior written approval of the Company. This provision shall not apply to purchases of standard commercial articles, or raw materials, including castings, forgings, and rough welded structures on which the Seller will perform further work.
(d) When so requested by the Company, the Seller shall provide written evidence to the Company verifying that its subcontractors have been paid.
(e) The Seller will keep the Company’s premises free and clear of all mechanics’ or builders’ liens. The Company shall have the right to order the Seller, in writing, to discharge forthwith any liens of whatever type placed on the Company’s premises or work being performed on the Company’s premises or goods being supplied under this Order, whether or not such liens constitute valid claims and the Seller shall assume the cost of discharging such liens. Furthermore, the Company shall have the right, at any time, to pay or to discharge any liens placed on the Company’s premises for work being performed at the Company’s premises or goods supplied under this Order, whether or not such liens constitute valid claims and to deduct the costs of discharging such liens from the amount due to the Seller.
15. TERMINATION FOR CONVENIENCE
The Company may, by written notice to the Seller, terminate the whole or part of this Order at its convenience upon thirty (30) days written notice. The Seller shall not be excused from the performance of any portions of this Order not so terminated. The Company shall pay the Seller for all work completed to the date of termination, together with the Seller’s actual, reasonable, and substantiated out of pocket costs and expenses related to this Order for obligations of the Seller which cannot be terminated prior to the termination of this Order (the “Termination Costs”), and the Company shall be entitled to take immediate possession of all work so performed. In no event shall such Termination Costs include any consequential, indirect, or punitive damages, the costs of removal and reinstallation of items, loss of goodwill, loss of third party revenues or profits, loss of use, injury to persons or property. The Seller shall provide the Company with any claims for Termination Costs within a reasonable time period after this Order is terminated but in any event no later than thirty (30) days after the effective date of such termination. Furthermore, upon such termination, the Seller agrees that any and all rights, title, and interest in and to any intellectual property developed in accordance with Article 9(b) herein will be immediately vested in, the Company and any and all limitations on the use thereof by the Company shall be immediately deemed null and void.
16. TERMINATION FOR DEFAULT
(a) The Company may, subject to the provisions of paragraph Article 18, by written notice of default to the Seller, terminate the whole or part of this Order in any one of the following circumstances:
i) if the Seller breaches any of the terms and conditions of this Order;
ii) if the Seller fails to make delivery of the goods or to perform the services within the time specified in this Order or in any written extension or modification of this Order;
iii) if the Seller fails to perform any of the other provisions of this Order, or so fails to make progress as to endanger performance of this Order in accordance with its terms;
iv) if the Seller fails to replace or correct defective articles in accordance with the provisions of Article 7. Termination of this Order shall be effective if the Seller does not cure the event(s) of default within a period of ten (10) days (or such longer period as the Company may authorize in writing) after delivery of notice by the Company to the Seller describing the event of default. For the avoidance of doubt, in the event that this Order provides for the furnishing of items in more than one (1) lot, this Order, including all lots, may be terminated under the circumstances described above.
(b) In the event the Company terminates this Order in whole or in part as provided in paragraph (a) of this clause, the Company may procure, upon such terms and in such manner as it may deem appropriate, goods or services similar to those so terminated, and the Seller shall be liable to the Company for the costs of such goods or services plus any excess costs reasonably incurred for such similar goods or services; provided, that the Seller shall continue the performance of this Order to the extent not terminated under the provisions of this clause.
(c) If this Order is terminated as provided in paragraph (a) of this clause, the Company, in addition to any other rights provided in this clause, may require the Seller to transfer title to and deliver to the Company, in the manner and to the extent directed by the Company:
i) any completed goods;
ii) such partially completed goods and materials, parts, tools, dies, jigs, fixtures, plans, drawings, information, and contract rights (hereinafter called “Manufacturing Materials”) as the Seller has specifically produced or specifically acquired for the performance of such part of this Order as has been terminated; and the Seller shall, upon direction of the Company, protect and preserve property in possession of the Seller in which the Company has an interest. Payment for completed goods delivered to and accepted by the Company shall be at this Order price. Payment for Manufacturing Materials delivered to and accepted by the Company, and for the protection and preservation of property, shall be in an amount agreed upon by the Company and the Seller, or, failing agreement, the amount determined by arbitration under Article 29.
(d) If, after notice of termination of this Order under the provisions of paragraph (a) of this clause, it is determined by the Company that the failure to perform this Order is due to causes beyond the control of and without fault or negligence of the Seller, and despite the exercise of utmost diligence by the Seller and/or its subcontractor(s) pursuant to the provisions of Article 18, such notice of default shall be deemed to have been issued pursuant to the clause of this Order entitled “Termination for Convenience”, and the rights and obligations of the Company and the Seller shall, in such event, be governed by such clause.
(e) The rights and remedies of the Company provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or under this Order.
17. TERMINATION ON ACCOUNT OF INSOLVENCY
The Company may terminate this Order immediately upon notice in the event the Seller becomes insolvent, makes an assignment for the benefit of its creditors, or if a receiver is appointed for the Seller on account of its insolvency or is unable to pay its debts in the ordinary course of business. The Company may treat such termination as default by the Seller and in such event the rights and obligations of the Company and the Seller shall be governed by Article 16.
18. FORCE MAJEURE
Except with respect to defaults of the Seller’s subcontractors, the Seller shall not be liable for any excess costs, if the failure to perform this Order arises out of a Force Majeure Event provided the Seller gives the Company written notice of such Force Majeure Event within twenty (20) days of the occurrence thereof and provided the Company agrees that such cause constitutes a Force Majeure Event. A “Force Majeure Event” includes, but is not limited to, an act of God or the public enemy, act of a government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, and freight embargoes or other events beyond the control of, without the fault or negligence of and despite the exercise of utmost diligence by the Seller. If the failure to perform is caused by default of the Seller’s subcontractor and if such default arises out of a cause beyond the control of both the Seller and its subcontractor, and without the fault or negligence of and despite the exercise of utmost diligence by both of them, the Seller shall not be liable for any excess costs for failure to perform, unless the goods or services to be furnished by the Seller’s subcontractor were obtainable from other sources in sufficient time to permit the Seller to meet the required delivery schedule.
19. COMPLIANCE WITH DELIVERY SCHEDULE
(a) Time shall be of the essence hereunder.
(b) The shipment and delivery of the goods or rendering of the services must be effected within the time stated in this Order or as may be otherwise mutually agreed in writing between the Company and the Seller.
(c) Unless the Company agrees in writing, deliveries of goods more than ten (10) days prior to the date specified in this Order may be received by the Company and payment postponed until the date payment would have been due, or the Company is entitled to refuse to accept such delivery without liability for any loss, damage or expense incurred or sustained by the Seller, including the costs of returning, storing or reshipping articles.
(d) Unless the Company otherwise agrees in writing, deliveries of goods after the date specified in this Order are not permitted. The Seller agrees that in the event deliveries of the goods or performance of the services called for in this Order are not made within the time specified in this Order or any authorized extension to this Order, and the Company requests in writing that the Seller perform overtime, weekend or holiday work, or establishes additional shifts of personnel to perform the work, the Seller shall comply with said requests by the Company or take such other action as is considered appropriate by the Company to regain current delivery schedule status, at no change to the prices as established in this Order. Notwithstanding the foregoing and unless otherwise agreed by the Company in writing, the Company reserves the right, at its sole discretion, to charge penalties in accordance with Article 21 and to return such late deliveries at the Seller’s cost and/or deduct any and all shipping costs and other related fees incurred by the Company for both the return and reshipment of the goods, from the Seller’s account and/or terminate this Order for default. The Company shall not have the right to request such overtime work without additional compensation to the Seller, if the Seller’s failure to meet the established delivery schedule provided for herein is due to causes beyond the control and without the fault of or negligence of the Seller as defined in Article 18.
(e) The rights afforded to the Company in the foregoing paragraphs shall not be exclusive and are in addition to any other rights provided by law or under this Order.
(f) The Seller agrees to notify the Company immediately if, at any time, it appears that the delivery schedule set forth in this Order may not be met. Such notification shall include the reasons for any possible delays and steps being taken to remedy any such problems. Further, this notification shall be in addition to any reporting requirements specified elsewhere in this Order. The requirements for notification set forth above are not to be construed as a waiver of the delivery schedule set forth in this Order and shall not prejudice the Company’s right under any other clause of this Order at law or in equity.
20. TITLE AND RISK
Title to and risk for the goods shall pass to the Company upon delivery in accordance with the requirements of this Order.
21. REMEDIES IN THE EVENT OF DELAY IN DELIVERY
(a) The obligation to deliver the goods and to perform the services in accordance with the delivery schedule in this Order is a material term and is an essential and primary obligation of the Seller to be performed. The Seller recognizes that in the event of delay of the delivery of goods by the Seller, the Company may suffer harm, and that any such harm arising by reason of the Seller’s delay would be difficult to determine accurately. In the event that the Seller may consider that the delivery dates may not be achieved for any reason whatsoever, then the Seller’s obligations shall be in accordance with Article 19(f) of these terms and conditions of purchase. Notwithstanding the foregoing, in the event of any delay in the delivery of the goods or performance of services in accordance with the delivery schedule set out in this Order, unless such delivery schedule has been amended by the mutual agreement of the Company and the Seller, the Seller shall, in the Company’s sole discretion, pay to the Company as liquidated damages and not as a penalty 0.5% of the value of the delayed goods or services for each full calendar week of delay. Notwithstanding the foregoing, the maximum amount of the liquidated damages payable under this paragraph is limited to 10% of the value of this Order. The liquidated damages payable under this paragraph will be invoiced separately by the Company to the Seller. In such invoice, the Company will cite all the relevant circumstances, and the deliveries involved that has given rise to such liquidated damages.
(b) Notwithstanding the aforementioned provisions, in case the cause of the delay persists for six (6) weeks or more, and where the Company and the Seller have been unable to reach agreement within this period on a revision of the delivery schedule, the Company shall be entitled, after written notice to the Seller, to terminate any Order in accordance with the provisions of Article 16.
(c) Notwithstanding the rights of the Company due to the Seller’s delivery delays, the payment of liquidated damages shall not relieve the Seller from its other contractual obligations to the Company.
(d) This Article 21 shall not apply if the Seller’s failure to deliver was due to a Force Majeure Event.
22. DAMAGES
In no event shall the Company be liable to the Seller for any special, indirect, incidental, consequential, or economic damages (including, but not limited to lost profits and lost business opportunity) regardless of legal theory under such damages are sought, and even if the Company has been advised of the possibility of such damages.
23. QUALITY CONTROL
The Seller shall provide and maintain a quality control system to an industry recognized quality standard, in compliance with any other specific quality requirements identified in this Order and approved by the Company. Records of all quality control inspection work or other inspection or test performed by the Seller on the goods and services which are the subject of this Order shall be kept complete and shall be available to the Company and its customers upon written request, unless previously identified as a deliverable in this Order.
Time sensitive material is not to be shipped to the Company with less than 75% of the original shelf life remaining, per the manufactures applied expiry date.
24. INSPECTION
(a) All material and workmanship shall be subject to inspection and test at all reasonable times and places, by the Company and the Company’s customer before, during, and after performance and delivery. If the goods furnished and/or services performed under this Order do not conform to the requirements of this Order, the Company shall have the right, without prior consent or consultation, and at the Company’s option, to suspend payment to the Seller for such goods and services, reject and return same at the Seller’s expense for full credit or require the replacement or correction of the same at the Seller’s expense, or the Company may keep and rework any such materials not so conforming. Cost of repair, rework, replacement, inspection, transportation, repackaging, and/or re-inspection by the Company shall be at the Seller’s expense. All goods may also be subject to further final inspection and acceptance or rejection at the Company’s plant, the Seller’s plant, or site of installation, notwithstanding any payments, previous source inspection, or acceptance.
(b) If any inspection or test is made on the Seller’s or its subcontractors’ premises, the Seller, without additional charge, shall provide all reasonable facilities and assistance for the safety and convenience of the Company’s inspectors or representatives of the Company’s customers. The foregoing are supplementary to and not in lieu of the provisions of (a) above, and shall in no way relieve the Seller of its obligation to furnish all goods and perform all services in strict accordance with this Order.
(c) The Customer’s failure to inspect does not relieve the Seller of any responsibility to perform according to the terms of this Order.
25. JIGS AND FIXTURES
In the manufacture of goods to be supplied hereunder, the Seller shall use jigs, fixtures, and/or other devices and appliances in all processes that are conducive to the manufacture of uniform goods. The Seller agrees that whenever the Company determines that such devices or appliances are incorrect, worn, damaged, or defective to such an extent as to adversely affect basic interchangeability of the item manufactured, the Seller shall not thereafter use the same in its incorrect, worn, damaged, or defective form and shall repair or replace such devices or appliances.
26. DOCUMENT LANGUAGE
All documentation furnished under this Order, unless otherwise specified in this Order, will be written in the English language. In the event of any inconsistency between any terms of this Order and any translation thereof into another language, the English language meaning shall have precedence and the English language shall govern any question with respect to interpretation. All measurements applicable to the work performed herein will be in accordance with the Canadian system of measurement or the system of measurement prescribed in this Order.
27. PRICES
The Seller warrants that the price(s) charged for the goods and/or services specified in this Order do not exceed the selling price(s) the Seller charges its most favored customer for the same or substantially similar items, whether sold to any Government or to any other purchaser, taking into account the quantity purchased and terms and conditions of sale. The Seller further agrees that in the event of an announced price reduction prior to complete shipment of goods or performance of services, said price reduction shall be passed on to the Company for goods remaining to be shipped or services still to be performed.
28. PAYMENTS
The Seller’s invoices must be itemized to show goods delivered and/or services rendered. Errors or omissions in invoices or delays in receiving proper invoices will be considered just cause for withholding payment. Payments under this Order shall be made in Canadian currency, unless otherwise specified elsewhere in this Order. Following receipt of the Seller’s proper invoices for goods delivered and/or services rendered, and provided such goods and/or services have been accepted by the Company, the Company shall pay the Seller upon net forty-five (45) days from receipt of said invoice, unless otherwise stated on the face of the purchase order. The Company reserves the right to withhold payment for goods delivered and/or services rendered in advance of the Company’s stated schedule until the date specified on the Company’s Order. Without limiting the Company’s other remedies, if data, reports, or other deliverables are not furnished when scheduled, the Company may withhold remaining payments until such data, reports, or other deliverables are furnished. Governmental duties, taxes, other levies, when applicable, shall be itemized as separate items on the Seller’s invoices. Any and all tax exemption certificates shall be acceptable by the Seller.
29. DISPUTES
All disputes, claims, or controversies arising under or related to this Order which are not resolved by mutual agreement within a reasonable time shall be settled by arbitration. The arbitration shall be held in Halifax, Nova Scotia and shall be conducted in accordance with the Commercial Arbitration Act (Nova Scotia). The arbitration panel shall consist of three (3) arbitrators, one (1) appointed by each party and the third appointed by the first two (2) members. The arbitration panel shall resolve the questions submitted, award the relief to which each party may be entitled, and allocate the costs of arbitration. Notwithstanding the foregoing, each party shall bear the burden of its own counsel fees incurred in connection with any arbitration proceedings under this Order. The decision of the arbitrators shall be final, binding, not subject to appeal, and enforceable by any court having jurisdiction over the necessary party or its assets. Pending resolution or settlement of any dispute arising under this Order, the Seller will proceed diligently with the performance of this Order or any change hereto in accordance with the decision and instructions of the Company.
30. TAXES AND CUSTOM CHARGES
Except as may be otherwise provided in this Order, price(s) set out in this Order are inclusive of all taxes, assessments, fees, licenses, customs charges and other compulsory governmental charges, applicable to the Seller and its subcontractors. If the Seller is not required to pay any of the foregoing taxes or other charges or obtains a refund or drawback thereof, price(s) set out in this Order shall be correspondingly decreased. The Seller shall promptly notify the Company of all matters pertaining to taxes or other charges which reasonably may be expected to result in a decrease in the price(s) set out in this Order.
31. PRIORITIES
If the Seller procures any materials or products in the United States directly, by subcontract, or through other agents for the performance of this Order, and these materials or products are certified under the U.S. Defence Materials System Regulations, then the Seller and its subcontractor or other agents shall follow all applicable regulations under which priorities and allocations are defined.
32. INSURANCE AND INDEMNITY AGAINST CLAIMS
(a) The Seller shall be responsible for the actions and failure to act of all parties retained by, through, or under the Seller in connection with the performance of this Order. The Seller shall also maintain such General Liability, Property Damage, Employer’s Liability, and Workers’ Compensation Insurance and Motor Vehicle Liability (Personal Injury and Property Damage) Insurance as are specified in this Order or if none specified, such amount as will protect the Seller (and its subcontractor) and the Company from said risks and from any claims under any applicable Workers’ Compensation, or Occupational Health and Safety legislation.
(b) The Seller shall, without limitation as to time, indemnify and save the Company harmless from all claims which may be asserted against property covered hereunder, including, without limitation, mechanic’s liens or claims arising under Workers’ Compensation or Occupational Disease laws and from all claims for injury to persons or damage to property arising out of or related to such property unless the same are caused solely and directly by the Company’s negligence.
(c) Upon request by the Company, the Seller will provide proof of insurance acceptable to the Company.
33. PACKING AND SHIPMENT
(a) Unless otherwise specified, all goods to be delivered under this Order are to be packed in accordance with good commercial practice.
(b) Unless otherwise specified, a complete packing list shall be enclosed with each shipment. The Sellers located in Canada shall send two (2) copies of accounting invoices to the Company. The Sellers located in countries other than Canada shall send four (4) copies of certified Customs Invoices to the Company.
(c) A “blanket” or “original” NAFTA certificate of origin signed by the Seller’s authorized individual must be forwarded prior to the release of shipment. The Seller will be held financially responsible for all penalties or fines levied due to errors or omissions.
(d) The Seller shall mark containers or packages with the Company’s Order number, part number, part description, quantity, and the names and addresses of consignor and consignee or other markings as set out in this Order. Bills of lading shall include this Order number, package weight, and package dimensions.
(e) Unless otherwise specified, delivery shall be Ex Works (Named place of delivery) in accordance with Incoterms 2010.
34. ANTI-BRIBERY AND CORRUPTION; ANTI-MONEY LAUNDERING
(a) The Seller understands and acknowledges that the Company does not authorize and will not tolerate or authorize bribery, or any other corrupt activities, in connection with the conduct of its business.
(b) The Seller represents and warrants that:
a. The Seller has not, whether directly or indirectly, authorized, offered, promised or given a financial or other advantage (including without limitation any money, contribution, gift, bribe, rebate, payoff, influence payment, kickback, loan, reward, advantage or anything of value, including any benefit of any kind) and will not, whether directly or indirectly, authorize, offer, promise or give such financial or other advantage:
i) to another person with the intention to induce a person to perform improperly a relevant function or activity;
ii) to another person with the intention to reward a person for the improper performance of such a function or activity;
iii) to another person with the knowledge or belief that the acceptance of the advantage would itself constitute the improper performance of such a function or activity; iv) to a government official, or representative, any political party or party official, any candidate for political office, with the intention of influencing such official, party, or candidate in its or his official capacity to do or to omit to do an act in violation of the lawful duty of such party, official, or candidate with the intention of obtaining or retaining business, or to secure any improper advantage;
v) to another person, while knowing or being aware of the high probability that all or a portion of such money or thing of value will be offered, given, or promised, directly or indirectly, as a bribe or kickback;
vi) in violation of any law or;
vii) to a foreign public official or to any person for the benefit of a foreign public official (a) as consideration for an act or omission by the official in connection with the performance of the official’s duties or functions; or (b) to induce the official to use his or her position to influence any acts or decisions of the foreign state or public international organization for which the official performs duties or functions.
(c) to the extent applicable, the Seller shall have received all documentation and other information required by, and complied in all material respects with, “know-your-customer” and anti-moneylaundering rules and regulations.
(d) the Seller has not, and will not, establish or maintain any fund or asset that has not been accurately recorded in the books and records of the Seller.
The terms used herein shall have the following meanings:
(a) ‘Government official’ shall include, but shall not be limited to, an individual who is employed or appointed by a public body and any person acting in an official capacity.
(b) ‘foreign public official’ means:
a. a person who holds a legislative, administrative or judicial position of a foreign state;
b. a person who performs public duties or functions for a foreign state, including a person employed by a board, commission, corporation or other body or authority that is established to perform a duty or function on behalf of the foreign state, or is performing such a duty or function; and
c. an official or agent of a public international organization that is formed by two or more states or governments, or by two or more such public international organizations;
(c) ‘public body’ shall include, but shall not be limited to, any government, including any department, agency or instrumentality of any such government, the armed forces of any government, any other national, regional or local governing or administrative body, and any other body which exercises authority over or in relation to the public at large in any jurisdiction, any public agency or public enterprise, or any public international organization; and
(d) ‘foreign state’ means a country other than that in which the Company is resident, and includes
i) any political subdivision of that country;
ii) the government, and any department or branch, of that country or of a political subdivision of that country; and
iii) any agency of that country or of a political subdivision of that country.
The Seller will ensure that each and every officer, employee and intermediary employed or instructed by the Seller who will perform services under, or in connection with this Order or otherwise for the benefit of the Company has read and understood this Article and that they will abide by it.
35. AUDIT RIGHTS
(a) The Seller shall maintain proper accounts and records recording all payments made and received by the Seller in connection with its performance of its duties under this Order.
(b) The Seller will allow the Company (either through its employees or through an independent auditor) to access the Seller’s accounts and records (including supporting documentation such as invoices and bank statements) in order to satisfy itself that neither the Seller nor its officers, employees or intermediaries have paid bribes or otherwise acted corruptly or dishonestly in connection with the provision by the Seller of services under this Order, during the term of this Order, provided that any such access shall be on not less than two (2) days’ written notice at any time during normal business hours for the purposes of auditing or otherwise inspecting the accounts and records.
(c) The Seller shall afford to the Company all reasonable assistance in the carrying out of any such audit. The Company and its auditors shall ensure that any information obtained in the course of the audit concerning the Seller’s business is treated as confidential information according to the provisions of Article 14 and not used for any purpose other than the proper conduct of the audit concerned.
(d) If the Company has reasonable grounds to suspect that the Seller or any of its officers, employees or intermediaries has paid any bribes or otherwise acted corruptly or dishonestly in connection with the provision by the Seller of services under this Order, it may terminate this Order by reason of fundamental breach of contract by the Seller.
36. INDEPENDENT CONTRACTOR RELATIONSHIP
The Company and the Seller are independent contracting parties and this Order does not create any agency, partnership, or joint venture relationship between the Company and the Seller or between the Company and the Sellers personnel for any purpose whatsoever, nor does this Order grant any power or authority to either party to accept on behalf of the other party any order or agreement, or to create any obligation on behalf of or in the name of the other party.
37. SURVIVAL
If this Order expires, is completed, or is terminated, the following provisions shall survive: Governing Law, Export Control, Warranties, Infringement Indemnity, Seller’s Data, Property Rights, Proprietary Information, Duplication, and Disclosure, Publicity, Disputes, Insurance and Indemnity against Claims, Independent Contractor Relationship, Remedies, Waiver and Severability.
38. REMEDIES
The rights of the Company under this Order shall be in addition to the rights and remedies at law or in equity.
39. OFFSETS
This Order has been awarded cognizance of the Company’s industrial participation/offset programs. All offset credits resulting from this Order are the sole property of the Company and shall, at the Company’s option, be applied to the industrial/offset program of its choice. The Seller agrees to assist the Company in securing appropriate offset credits from respective government authorities.
40. WAIVER
The Company’s failure or delay to insist, in any one or more instances, upon the performance of any term or terms of this Order, or to exercise any right or remedy available hereunder, shall not be construed as a waiver or relinquishment of the Company’s right to such performance or the future performance of such term or terms, right, or remedy, and the Seller’s obligation in respect thereto shall continue in full force and effect.
41. SEVERABILITY
Should any provision of this Order or application thereof be deemed invalid, illegal, unenforceable, then that provision shall be deemed severed from this Order and the remainder of this Order will remain valid, enforceable and in full force and effect. The Company and the Seller shall negotiate in good faith in order to agree the terms of a mutually acceptable and satisfactory provision of like economic intent and effect.
