Purchase Order Terms and Conditions - February 2016

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 Supplier’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 Niagara Region to the Supplier (the “Purchase Order”), including these Purchase Order Terms and Conditions;

“Deliverables” means the goods and any related services as described in the Purchaser Order;

“Indemnified Parties” means Niagara Region, its elected officials, 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 Supplier 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 Niagara Region;

“Niagara Region” means the Regional Municipality of Niagara and its consolidated agencies, boards and commissions;

“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 Supplier 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 Niagara Region 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, licences, 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

“Supplier” means the supplier identified on the face of the Purchase Order.

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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 Purchaser Order Terms and Conditions and any terms and conditions contained in any acknowledgement, order or any other form issued by the Supplier, these Purchase Order Terms and Conditions shall prevail. Changes to the Contract shall be only by written amendment signed by the parties.

2.03 Notices
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.

2.04 Severability
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 Niagara Region
Nothing in the Contract, whether express or implied, will directly or indirectly increase the indebtedness or contingent liabilities of Niagara Region beyond the obligation to pay the Rates in respect of Deliverables accepted by Niagara Region.

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.

2.07 Survival
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.

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Article 3 - Relationship Between Niagara Region and Supplier

3.01 Supplier’s Power to Contract
The Supplier 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 Niagara Region under this Contract.

3.02 Supplier Not a Partner, Agent or Employee
The Supplier shall have no power or authority to bind Niagara Region or to assume or create any obligation or responsibility, express or implied, on behalf of Niagara Region. The Supplier shall not hold itself out as an agent, partner or employee of Niagara Region. Nothing in the Contract shall have the effect of creating an employment, partnership or agency relationship between Niagara Region and the Supplier or any of the Supplier’s Related Entities.

3.03 Non-Exclusive Contract, Work Volumes
Niagara Region 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 Supplier
The Supplier agrees that it is liable for the acts and omissions of its Related Entities. The Supplier 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 Supplier shall not subcontract or assign the whole or any part of the Contract without the prior written consent of Niagara Region. Such consent shall be in the sole discretion of Niagara Region and subject to the terms and conditions that may be imposed by Niagara Region. Nothing in the Contract, or in such consent, creates a contractual relationship between any subcontractor and Niagara Region.

3.06 Conflict of Interest
The Supplier shall: (a) avoid any Conflict of Interest in the performance of its contractual obligations; (b) give notice to Niagara Region 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 Niagara Region to resolve any Conflict of Interest.

3.07 Contract Binding
The Contract can be enforced by and is binding upon the parties and their successors, executors, administrators and their permitted assigns.

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Article 4 - Performance by Supplier

4.01 Deliverables Warranty
The Supplier 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 Supplier further represents and warrants that the use or sale of the Deliverables purchased under this Contract will not infringe any patent, copyright or trademark.

4.02 Delivery
Unless otherwise stated on the face of the Purchase Order, all Deliverables shall be Delivered Duty Paid (DDP) (Incoterms 2010) to Niagara Region’s location, as specified on the face of the Purchase Order. No transportation or delivery charges of any kind, including, without limitation, packing, boxing, storage, cartage or customs brokerage charges, shall be paid by Niagara Region, unless specifically agreed by Niagara Region in writing. Goods shall be delivered on the date(s) specified in the Purchase Order and time shall be of the essence.

4.03 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 Supplier until the Deliverables are received by Niagara Region.

4.04 Inspection and Acceptance
Receipt of the Deliverables at Niagara Region’s location does not constitute acceptance of the Deliverables by Niagara Region. The Deliverables are subject to Niagara Region’s inspection and acceptance within a reasonable period of time after delivery. If any of the Deliverables, in the opinion of Niagara Region, are inadequately provided or require corrections, the Supplier shall make the necessary corrections at its own expense as specified by Niagara Region in a rectification notice.

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Article 5 - Payment for Deliverables

5.01 Payment According to Contract Rates
Niagara Region shall pay the Supplier for the Deliverables in accordance with the Rates within thirty (30) days of receipt by Niagara Region of a satisfactory invoice from the Supplier requesting payment for Deliverables that have been received and accepted by Niagara Region, unless another term of payment is specified in the Contract or on the face of the Purchase Order.

All invoices submitted by the Supplier must include: (a) the amount invoiced, exclusive of HST; (b) the amount of HST shown separately; (c) the HST # and (d) the Purchase Order Number.

5.02 No Expenses or Additional Charges
The Supplier shall pay all applicable taxes and duties, including excise taxes, incurred by or on the Supplier's behalf with respect to the Contract. There shall be no charges payable by Niagara Region to the Supplier other than the Rates.

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Article 6 - Insurance and Indemnification

6.01 Insurance
The Supplier shall put into effect commercial general liability insurance, in a form acceptable to Niagara Region, in an amount not less than $5,000,000 (unless another quantum is specified in the Contract or on the face of the Purchase Order), with Niagara Region as an additional insured. The Supplier will also put into effect such other additional insurances as specified on the Purchase Order. The Supplier shall provide Niagara Region with evidence of insurance on Niagara Region’s form of Certificate of Insurance upon request.

6.02 Supplier Indemnity
The Supplier 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 Supplier or its Related Entities, except to the extent that such liability arises out of the independent acts or omissions of the Indemnified Parties.

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Article 7 - Termination

7.01 Immediate Termination of Contract
Niagara Region may immediately terminate the Contract upon giving notice to the Supplier for any reason, notwithstanding that the Supplier might not be in default under the Contract, and in such event Niagara Region shall be liable to the Supplier only for the payment of the Rates in respect of Deliverables accepted by Niagara Region 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 Niagara Region under the Contract, at law or in equity.

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