ARTICLE 1 – INTERPRETATION
1.01 Defined Terms
When used in the Contract, the following words or expressions have the following meanings:
“Conflict of Interest” includes, but is not limited to, any situation or circumstance where the Contractor’s other commitments, relationships or financial interests (i) could or could be seen to exercise an improper influence over the objective, unbiased and impartial exercise of its independent judgment; or (ii) could or could be seen to compromise, impair or be incompatible with the effective performance of its obligations under the Contract;
“Contract” means the purchase order for the Deliverables issued by the Owner to the Contractor (the “Purchase Order”), including these Owner Terms and Conditions and the competitive bid document used to solicit the Deliverables. Should there be inconsistencies between these Owner Terms and Conditions and the terms and conditions within the competitive bid document used to solicit the Deliverables, the latter shall prevail.
“Contractor” means the vendor identified on the face of the Purchase Order.
“Deliverables” means the goods, services or construction as described in the competitive bid document or Purchase Order;
“Indemnified Parties” means the Owner, its elected officials, directors, officers, agents, employees and volunteers;
“Industry Standards” include, but are not limited to: (a) the provision of all labour, supplies, equipment and other goods or services that are necessary and can reasonably be understood or inferred to be included within the scope of the Contract or customarily furnished by parties providing goods or services similar to the Deliverables in similar situations in Canada and; (b) adherence to commonly accepted norms of ethical business practices, which shall include the Contractor establishing, and ensuring adherence to, precautions to prevent its employees or agents from providing or offering gifts or hospitality of greater than nominal value to any person acting on behalf of or employed by the Owner;
“Owner” means the Corporation of the Town of Bradford West Gwillimbury;
“Rates” means the price, in Canadian funds, to be charged for the Deliverables, as set out in the Contract, representing the full amount chargeable by the Contractor for the provision of the Deliverables, including but not limited to: (a) all applicable duties and taxes; (b) all labour and material costs; (c) all travel costs; (d) all costs associated with insuring, transporting and delivering the Deliverables to the Owner at its address specified on the Purchase Order; (e) all insurance costs; and (f) all other overhead, including any fees or other charges required by law;
“Related Entities” include directors, officers, employees, agents, partners, affiliates, volunteers and subcontractors.
“Requirements of Law” means all applicable requirements, laws, statutes, codes, acts, ordinances, orders, decrees, injunctions, by-laws, rules, regulations, official plans, permits, licenses, authorizations, directions, and agreements with all authorities that now or at any time hereafter may be applicable to either the Contract or the Deliverables or any part of them; and
ARTICLE 2– GENERAL TERMS
2.01 Governing Law
The Contract shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein.
2.02 Entire Contract
The Contract, together with any additional documentation referenced in the Purchase Order, sets forth the entire agreement between the parties with regard to the provision of the Deliverables and supersedes any prior understanding or agreement, collateral, oral or otherwise, existing between the parties. In the event of any ambiguity, conflict or inconsistency between these Owner Order Terms and Conditions and any terms and conditions contained in any acknowledgement, order or any other form issued by the Contractor, these Purchase Order Terms and Conditions shall prevail. Changes to the Contract shall only be made by the issuance of an amended Purchase Order by the Owner to the Contractor.
Notices shall be in writing and shall be delivered by mail, personal delivery or email and shall be addressed to the contact identified on the face of the Purchase Order.
If any term or condition of the Contract, or the application thereof, is to any extent invalid or unenforceable, the remainder of the Contract, and the application of such term or condition (except to the extent to which it is held invalid or unenforceable), shall not be affected.
2.05 No Indemnities from Owner
Nothing in the Contract, whether express or implied, will directly or indirectly increase the indebtedness or contingent liabilities of the Owner beyond the obligation to pay the Rates in respect of Deliverables accepted by the Owner.
2.06 Force Majeure
Neither party shall be liable for damages caused by delay or failure to perform its obligations under the Contract where such delay or failure is caused by an event beyond its reasonable control, such as natural disasters, acts of war, insurrection and terrorism. If a party seeks to rely on a force majeure event, that party shall immediately notify the other party of the reason for and anticipated period of any delay.
This paragraph and paragraphs 2.01, 2.04, 2.05, 3.02, 3.04, 4.01, 6.02 shall survive the termination or expiry of the Contract, as shall any other provision which by its nature ought to reasonably survive such termination or expiry.
ARTICLE 3 – RELATIONSHIP BETWEEN OWNER AND CONTRACTOR
3.01 Contractor’s Power to Contract
The Contractor represents and warrants that it has the full right and power to enter into the Contract and there is no agreement with any other party that would in any way interfere with the rights of the Owner under this Contract.
3.02 Contractor Not a Partner, Agent or Employee
The Contractor shall have no power or authority to bind the Owner or to assume or create any obligation or responsibility, express or implied, on behalf of the Owner. The Contractor shall not hold itself out as an agent, partner or employee of the Owner. Nothing in the Contract shall have the effect of creating an employment, partnership or agency relationship between the Owner and the Contractor or any of the Contractor’s Related Entities.
3.03 Non-Exclusive Contract, Work Volumes
The Owner makes no representation regarding the volume of goods and services required under the Contract and reserves the right to contract with other parties for goods and services the same as or similar to the Deliverables.
3.04 Responsibility of Contractor
The Contractor agrees that it is liable for the acts and omissions of its Related Entities. The Contractor shall advise its Related Entities of their obligations under the Contract and shall ensure their compliance with the applicable terms of the Contract.
3.05 No Subcontracting or Assignment
The Contractor shall not subcontract or assign the whole or any part of the Contract without the prior written consent of the Owner.
3.06 Conflict of Interest
The Contractor shall: (a) avoid any Conflict of Interest in the performance of its contractual obligations; (b) give notice to the Owner without delay of any actual or potential Conflict of Interest that arises during the performance of its contractual obligations; and (c) comply with any requirements prescribed by the Owner to resolve any Conflict of Interest.
The Contractor is not permitted in any manner to advertise or publish the fact that they have been contracted to furnish the Owner with the Deliverables, without first obtaining the written consent of the Owner.
3.08 Contract Binding
The Contract can be enforced by and is binding upon the parties and their successors, executors, administrators and their permitted assigns.
ARTICLE 4 – PERFORMANCE BY CONTRACTOR
4.01 Deliverables Warranty
The Contractor represents and warrants that the Deliverables (i) shall be provided diligently in a professional and competent manner by persons qualified and skilled in their occupation in accordance with: (a) the Contract; (b) Industry Standards; and (c) the Requirements of Law; and (ii) shall be free from defects in material, workmanship and design, suitable for the purposes intended, in compliance with all applicable specifications and free from liens or encumbrance on title. The Contractor represents and warrants that the use or sale of the Deliverables purchased under this Contract will not infringe any patent, copyright or trademark.
Unless otherwise stated on the face of the Purchase Order, all Deliverables shall be delivered Duty Paid (DDP) (Incoterms 2010) to the Owner’s location, as specified on the face of the Purchase Order. No transportation or delivery charges of any kind, including, without limitation, packing, storage, cartage or customs brokerage charges, shall be paid by the Owner, unless specifically provided for on the face of the Owner Order.
4.03 Safety Data Sheets (SDS)
For any hazardous materials on this order, the Contractor shall provide the Owner with the SDS, prior to or with the receipt of Deliverables. If the SDS have not been received, the Deliverables will either be refused or shall be returned to the Contractor at no cost to the Owner.
4.04 Packaging and Risk
The Deliverables will be suitably packed in such a manner as will ensure their safe transportation undamaged to their destination. The Deliverables will remain at the risk of the Contractor until the Deliverables are received by the Owner.
4.05 Inspection and Acceptance
Receipt of the Deliverables at the Owner’s location does not constitute acceptance of the Deliverables by the Owner. The Deliverables are subject to the Owner’s inspection and acceptance within a reasonable period of time after delivery. If any of the Deliverables, in the opinion of the Owner, are inadequately provided or require corrections, the Contractor shall make the necessary corrections at its own expense as specified by the Owner in a rectification notice. The Owner reserves the right to reject or return quantities in excess of the quantity ordered.
Time is of the essence. The Owner reserves the right to cancel this order in whole or in part if the Deliverables are not delivered within the stated time schedule. If the Contractor anticipates the delivery will be delayed, the Contractor shall give immediate notice to the Owner of the cause and extent of the anticipated delay. As a result, any costs or penalties incurred by the Owner due to late delivery may be borne by the Contractor.
ARTICLE 5 – PAYMENT FOR DELIVERABLES
5.01 Payment According to Contract Rates
The Owner shall pay the Contractor for the Deliverables in accordance with the Rates within thirty (30) days of receipt by the Owner of a satisfactory invoice from the Contractor requesting payment for Deliverables that have been received and accepted by the Owner.
All invoices submitted by the Contractor must include the amount invoiced, exclusive of HST, and the amount of HST shown separately.
5.02 No Expenses or Additional Charges
The Contractor shall pay all applicable taxes and duties, including excise taxes, incurred by or on the Contractor's behalf with respect to the Contract. There shall be no charges payable by the Owner to the Contractor other than the Rates.
ARTICLE 6 – INSURANCE AND INDEMNIFICATION
The Contractor shall put into effect commercial general liability insurance, in a form acceptable to the Owner, in an amount not less than $2,000,000 per occurrence, with the Owner as an additional insured. The Contractor will also put into effect such other additional insurances as required by the Owner. The Contractor shall provide the Owner with evidence of insurance upon request. In the instance of consulting services, the Contractor shall also put into effect professional liability insurance, in a form acceptable to the Owner, in an amount of not less than $2,000,000 per claim.
6.02 Contractor Indemnity
The Contractor agrees to indemnify and save harmless the Indemnified Parties from all losses, claims, damages, actions, causes of action, costs and expenses that the Indemnified Parties may sustain, incur, suffer or be put to at any time, either before or after this Contract ends, including for infringement of third-party intellectual property rights or for third party bodily injury (including death), personal injury and property damage, arising or occurring, directly or indirectly, by reason of any act or omission of the Contractor or its Related Entities, except to the extent that such liability arises out of the independent acts or omissions of the Indemnified Parties.
ARTICLE 7 – TERMINATION
7.01 Immediate Termination of Contract
The Owner may immediately terminate the Contract upon giving notice to the Contractor for any reason, notwithstanding that the Contractor might not be in default under the Contract, and in such event the Owner shall be liable to the Contractor only for the payment of the Rates in respect of Deliverables accepted by the Owner up to the date of termination. The express rights of termination in the Contract are in addition to and shall in no way limit any rights or remedies of the Owner under the Contract, at law or in equity.