1. AGREEMENT: All capitalized terms not defined herein (this “Agreement”) shall have the meaning ascribed thereto in the Purchase Order. The Purchase Order, all documentation referenced in it, and this Agreement contain the entire agreement between Purchaser and Seller and supersede all previous correspondence and negotiations. This Agreement shall only be amended, modified, or changed by a written agreement between the parties hereto. Seller may not assign any of its interest or rights in the Purchase Order without the prior written consent of Purchaser, which consent may be arbitrarily withheld.
2. PRICE: Unless stated otherwise, prices in the Purchase Order (the “Purchase Price”) are not subject to change, and include all labour, materials and other resources which may be necessary to perform the Work. Purchaser may, in its sole and absolute discretion, alter, increase, or reduce the Work or adjust the Time Schedule. In the event of any such change(s), the Purchase Price or Time Schedule shall be adjusted by written agreement between Purchaser and Seller.
3. PAYMENT: Purchaser will make payment to Seller upon receipt of a duly executed statutory declaration in the form requested by Purchaser, subject to maintaining a holdback pursuant to applicable statutory holdback legislation. No payment made to Seller, either wholly or in part, shall be construed as acceptance of any defective or non-conforming Work or improper material, or as relieving Seller from its obligations or responsibilities under the Purchase Order or this Agreement.
In addition to any other rights it may have at law or in equity, Purchaser may withhold part or all of any payment in any of the following situations: (a) where a claim or lien has been filed with respect to Seller’s work or any work done by a subcontractor engaged by Seller; (b) where there is defective, non-conforming or damaged Work which Seller has failed to rectify within five (5) days of receiving written notice of such defect from Purchaser; and (c) where Seller has failed to perform any of its obligations under the Purchase Order including, but not limited to, failure to comply with the Time Schedule and failure to use or supply satisfactory equipment to perform the Work.
4 . TERMINATION: The Purchase Order shall automatically terminate upon the occurrence of any of the following events:
a) the bankruptcy or insolvency of Seller or the filing against Seller of a petition in bankruptcy where such petition remains undismissed for a period of thirty (30) days;
b) the making of an authorized assignment for the benefit of creditors by Seller;
c) appointment of a receiver for Seller;
d) upon Purchaser providing Seller two (2) days written notice in the event that Seller:
(i) refuses or fails to supply sufficient or properly skilled employees, subcontractors, equipment, or materials;
(ii) fails to pay its subcontractors or suppliers as per the terms negotiated;
(iii) fails to adequately protect property or persons so as to ensure completion of the Work under the Purchase Order within the time specified;
(iv) abandons the Work;
(v) delays unreasonably in completing the Work;
(vi) refuses or fails to comply with laws, ordinances, regulations or Purchaser’s instructions;
(vii) breaches any provision of the Purchase Order; or
(viii) where there is defective, non-conforming or damaged Work which Seller has failed to rectify within five (5) days of receiving written notice of such defect from Purchaser.
Purchaser may also terminate the Purchase Order in whole or in part at any time upon seven (7) days written notice to Seller, in which case Purchaser shall accept delivery of all customized Work completed prior to receipt of the notice. The actual demonstrated authorized costs incurred in the production of uncompleted customized Work shall be paid following delivery of the uncompleted customized Work, provided, however, that such amount plus amounts paid or payable for completed Work shall not exceed the total value of the Purchase Order. Purchaser shall not be liable to Seller for: payment of stock items which have not been customized in connection with the Work, Seller’s loss of profit, or Seller’s overhead. This provision is without prejudice to any rights of Purchaser if deliveries of Work or parts thereof are in arrears.
5. WARRANTY, TITLE AND RISK: Seller expressly warrants that all Work delivered under the Purchase Order shall conform to any sample, drawings and specifications or any other description furnished or referenced by Purchaser and shall be fit for Purchaser’s intended purpose, of first class and agreed quality, of the highest standards of performance and free from defects in materials, design, or workmanship. Any defective or non-conforming Work shall be replaced or repaired at Seller’s sole cost and expense (including costs of access, removal, and replacement). Seller guarantees the Work against all latent defects in the whole or any part of said Work which appear at any time after delivery. These warranties are in addition to and do not restrict any warranties available to Purchaser at law.
Purchaser is not responsible for any tools, equipment or personal property of Seller or its subcontractors or employees, which is not to be incorporated in the Work.
6. INSURANCE: As applicable and unless otherwise indicated by Purchaser in the Purchase Order, Seller shall furnish to Purchaser evidence of insurance in the form herein described, verifying the following minimum requirements:
a) Workers’ Compensation Insurance (as required by the jurisdiction where the Work or any portion thereof is being carried out);
b) Automobile Liability Insurance covering all Seller’s licensed vehicles used in performing the Work, whether owned or leased, with a minimum liability of not less than two million ($2,000,000) dollars inclusive of accidental injury to or death of one or more persons or damage to or destruction of property as a result of one accident or occurrence: and
c) Comprehensive general liability insurance of not less than five million ($5,000,000.00) dollars covering liability for personal injury or death of any one or more persons, and loss or damage to or destruction of property (including Purchaser’s property and for loss of use thereof) in any one occurrence.
At Purchaser’s request, Seller shall forthwith provide detailed certificates of insurance evidencing that such coverage is in force and effect with thirty (30) days’ notice of material change to coverage. All insurance required shall contain an endorsement to the effect that Seller’s insurance policies are considered primary and that any other policies shall be in excess only. Each such policy purchased by Seller shall be endorsed to waive insurer’s rights of subrogation against Purchaser.
7. INDEMNIFICATION AND LIMITATION OF LIABILITY: Seller shall indemnify and hold harmless Purchaser, its officers, directors, employees, agents, customers, successors and assigns (each an “Indemnified Party” and collectively the “Indemnified Parties”) from and against any and all claims, lawsuits, or demands of any nature or kind whatsoever brought against an Indemnified Party, or any loss or damage sustained by the Indemnified Parties arising directly or indirectly out of the performance of the Purchase Order by Seller, its subcontractors or anyone for whom it is legally responsible. Seller shall further indemnify and hold harmless the Indemnified Parties from and against any, and all liens upon the premises of Purchaser or its customers including without limitation, liens for labour performed and material furnished, attaching as a result of any act or omission by Seller or its subcontractors, and Seller shall also at its own expense ensure the discharge, release or satisfaction of any and all notices of intention or other evidence of such lien or claim thereto. This obligation will survive termination of the Purchase Order and this Agreement. Under no circumstances shall Purchaser be liable for indirect or consequential damages.
8. CONFIDENTIALITY: Seller agrees to keep and treat as confidential the entire contents of the Purchase Order and this Agreement (the “Confidential Information”) and will not, without the prior express written consent of Purchaser, disclose the Confidential Information to any third party (other than for income tax and legal purposes). Seller agrees not to release any declarations, communications, photographs, or advertising relative to the Purchase Order or this Agreement without Purchaser’s prior express written consent.
9. APPLICABLE LAW AND DISPUTE RESOLUTION: This Agreement shall be governed by the laws of the Province of Manitoba and the laws of Canada applicable therein. The remedies expressly provided for in this Agreement are in addition to any other remedies which Purchaser may have at law.