Purchase Order Terms and Conditions
Version 1.0 – September 2019
DELIVERY OF MATERIALS OR PRODUCT
- DELIVERY – Delivery of materials or product (the “Product”) shall be as specified on the Purchase Order, as defined below. Title to the Product and risk of loss shall pass on Delivery. Delivery shall be deemed to have occurred upon delivery to and acceptance by a Technica Designate, and shall be evidenced by the Technica Designate having signed for receipt of the Product. Technica shall have the right to specify the carrier and/or the method of transportation to be used in transporting the Product. No packing, packaging or transportation charges shall be payable by Technica unless specifically stated on the face of the Purchase Order.
- LATE DELIVERIES – If the Vendor does not deliver the Product within the time specified on the Purchase Order,Technica shall have the right to request any special method of transportation, including express or where practical air shipment, and the Vendor shall pay any resulting additional transportation costs unless the delays
are due solely to causes beyond the control of the Vendor.
- NON-CONFORMING PRODUCT – Technica shall have the right to test any Product after delivery for conformity to
the Purchase Order and the terms of this Agreement. Acceptance of all or any part of the Product shall not be deemed to be a waiver of Technica’s right either to cancel or return all or any part of a shipment because of failure to conform to order specifications or by reason of defects, latent or patent, or other breach of warranty, or to make any claim for damages. Such right shall be in addition to any other remedies available to Technica by law or in equity. Acceptance of any part of the Purchase Order shall not bind Technica to accept future shipments. Technica will notify the Vendor of any Product that is rejected as not being in accordance with the terms of the Purchase Order or that is to be returned to the Vendor. Upon such notice, the Vendor shall forthwith remove the rejected Product from the Operating Site or point of delivery, as the case may be, at its own cost and expense. The Vendor shall be responsible for all costs related to non-conforming Product and shall pay any and all transportation charges incurred in returning and replacing any non-conforming Product. Title and risk of loss to rejected Products shall pass to the Vendor upon the removal of said Products from the Operating Site or delivery point, as the case may be, by the Vendor.
- DELIVERY DOCUMENTATION – Where applicable, a Product requiring a Safety Data Sheet (“SDS”) shall have the SDS sheet attached to the shipments, clearly visible, as applicable, for all deliveries on the Purchase Order, including such labor and/or Product as may be described on the Purchase Order.
- WORK – The Vendor shall provide the services to Technica in accordance with the specifications in the applicable statement of work or purchase order (the “Work”). The Vendor agrees to assume all obligations specified in the Work, the terms of the statement of work/Purchase Order, and these Terms and Conditions. Unless otherwise agreed by Technica, the Vendor shall furnish and promptly pay for all labor and materials required to perform the Work including the provision of equipment, materials and/or services, and all permits, licenses, inspections and certificates, that are desirable or required to complete the Work. The Vendor shall complete the Work: (a) in accordance with the terms and subject to the conditions set forth in the respective statement of work or Purchase Order, as well as this Agreement; (b) using personnel of required skill, experience and qualifications; (c) in a timely, workmanlike and professional manner; and (d) in accordance with the generally recognized industry standards in Vendor’s field.
- CHANGE ORDER REQUIRED – Notwithstanding anything to the contrary in this Agreement, no change to the Vendor’s obligations, including but not limited to, a change to the specifications, contract price, or completion date of the Work, will be binding on Technica unless expressly stated and executed by Technica. The Vendor agrees to do no extra work or make changes to the Work specified in the Purchase Order without the prior written consent of Technica and understands that Technica will not pay for additional work or changes unless authorized by Technica in writing. Should the scope of the Work or dollar value outlined in the Purchase Order change, regardless of the reason or amount, the Vendor shall forward all requests for changes to the contact person responsible for the Work at Technica. Where Technica and the Vendor agree to the changes, Technica will provide the Vendor with an Updated Purchase Order. The changes shall be effective as of the date specified on the change order, or if no date is specified, shall be effective on the date of the signature of the last party signing the change order. The adjustment in the amount for a change shall be determined on the basis of the actual and direct costs and expenditures or savings of the Vendor attributable to the change, unless Technica agrees otherwise.
- UNAUTHORIZED WORK – If Vendor or its subcontractor(s) performs Work that is contrary to the terms, conditions or intent of the applicable statement of work or Purchase Order, or this Agreement, including any related Change Order, then such Work is performed at the Vendor’s sole risk, cost, and expense.
- COMPLIANCE WITH LAWS – The Vendor is in compliance and shall comply with and complete the Work in accordance with the terms of the Purchase Order, all applicable federal, provincial, or local government laws, regulations, ordinances, rules and permits pertaining to the Work including work practices and standards required by the profession, industry, or trade involved in the Work.
- COMPLIANCE WITH TECHNICA’S POLICIES – Notwithstanding the other provisions of this Agreement, the Vendor undertakes that it shall adhere to, and ensure that its employees and agents are conversant with and adhere to, Technica’s Health and Safety Policy and Procedures (the “Policy”) while completing the Work and at all times at the Operating Site. The Policy is available to the Vendor upon request and is incorporated by reference and forms part of this Agreement. Where the rules, regulations, policies and codes of conduct of Technica applicable to the Work and the Operating Site are amended, supplemented or replaced, Technica shall provide the Vendor with a copy of such amendments, supplements or replacements, and upon delivery thereof such amendments, supplements or replacements shall form part of Technica’s Policy for the purposes of this Agreement.
- TRAINING – Upon Technica’s request, the Vendor shall ensure its employees and agents have completed a Technica Mining Indoctrination within 12 months of commencing the Work.
- OPERATING SITE – The Vendor shall ensure its employees and agents refrain from smoking while on site, unless in a designated smoking area. The Vendor shall leave the site clean, and ensure all employees and agents respect and comply with the rules, regulations, ordinances and practices required by the applicable health and safety legislation of the province in which the Work is performed. The Vendor shall provide Technica with records of training required for the Work on request. The Vendor is responsible to supply all safety equipment and apparel required to complete the Work. The Vendor shall make arrangements to protect partially completed Work and equipment or materials and will be responsible for any damage incurred by the Vendor’s failure to do so. The Vendor represents and acknowledges that it has examined the Operating Site and the surrounding areas and warrants that it is practical to complete the Work at the Operating Site. Any variance in actual conditions at the Operating Site from those observed by the Vendor prior to the execution of this Agreement or contemplated by any of the documents reviewed by or furnished to the Vendor shall not be the basis for extra compensation or extension of time by Technica to the Vendor, unless and only to the extent that such variance was not reasonably capable of discovery by the Vendor prior to the execution of this Agreement.
- WORKERS COMPENSATION AND INSURANCE – The Vendor shall have and maintain workers compensation insurance with coverage limits in compliance with applicable law. Prior to commencing the Work, Vendor shall furnish to Technica a clearance certificate from the provincial Workers’ Compensation Board or equivalent in the province of Work showing that Vendor is in good standing, or if in the United States, shall furnish such documentation as is required by workers’ compensation laws where the Work is being performed. Vendor shall have and maintain General Liability and Property Damage insurance, with coverage of not less than two million dollars ($2 million) per occurrence and shall provide certificates of insurance. The Vendor shall also have and maintain auto liability insurance in the amount of one million ($1 million) for each of bodily injury and property damage, if vehicles are being used, and any other insurance as may be required. Any waiver shall not void the Vendor’s indemnity contained herein. The Vendor shall provide thirty (30) days prior written notice to Technica of its intent to change or cancel any insurance coverage. Failure of the Vendor to maintain valid insurance coverage or provide the thirty (30) days prior written notice of any change or cancellation shall be cause for termination of this Agreement by Technica. In the event of an incident or accident, the Vendor shall report the
incident or accident immediately to Technica.
- ENVIRONMENTAL CONCERNS – The Vendor undertakes to comply, and to cause its employees and agents to comply, with all Environmental Law applicable to the Work. The Vendor accepts sole liability for compliance with Environmental Law in respect of the Work. The Vendor will advise Technica in writing as soon as reasonably practicable of any spill, discharge or release of Substances into the environment and of any other damages and/or losses related to the environment and arising from the Work. The Vendor will take all reasonable care in mitigating any potential adverse effects of a spill, discharge or release of Substances into the environment. If the Vendor encounters Substances at the place of Work, or has reasonable grounds to believe that Substances are present at the place of Work, which were not disclosed prior to commencement of the Work or which were disclosed but have not been dealt with in accordance with legal requirements, the Vendor shall take all reasonable steps to ensure that no person’s exposure to any Substances exceeds the levels prescribed by any Environmental Law or environmental regulations at the place of Work, and immediately report the circumstances to Technica in writing.
Environmental Law means any applicable law relating to the protection and preservation of the environment, occupational health and safety or transportation of dangerous goods, wastes or contaminants, including without limitation the Canadian Environmental Protection Act, the federal Transportation of Dangerous Goods Act and regulations thereunder.
Substance means any substance or material which is defined or regulated pursuant to any Environmental Law, including without limitation any substance or material defined to be hazardous, dangerous, a contaminant, a pollutant or a waste.
- TIME FOR PERFORMANCE – Time shall be of the essence. The Vendor agrees to complete the Work in accordance with the date specified herein or instructions from Technica as provided from time to time. No oral extensions of time for performance of this Agreement shall be accepted, without the prior written agreement of Technica. The Vendor shall ensure each work crew contacts the person responsible for Work at Technica and signs in, as required by Technica. This Agreement shall commence on the commencement date outlined in the scope of work or Purchase Order and shall continue, subject to prior termination in accordance with the terms of this Agreement, until (a) the end date if an end date has been specified or (b) if no end date has been specified, the completion of the Services (the “Term”).
- PRIOR WORK – To the extent the Vendor knows or ought to have known that work that precedes the Vendor’s Work, has been done by others in an improper manner, the Vendor shall be responsible to report such to Technica prior to commencing the Work. In the event the Vendor fails to provide such report, the Vendor shall be liable for any costs, damages and expenses whatsoever accruing to the Vendor or Technica and shall indemnify Technica for any costs accruing to Technica.
- HOLDBACKS – With the request for final payment, the Vendor shall provide Technica with a signed Statutory Declaration or applicable lien waiver in a form acceptable to Technica. Holdback or retainer amounts, if any, shall be paid as soon as possible upon expiration of the lien period applicable or in accordance with applicable law, whichever is earlier, however Technica may retain out of the holdback or retainer amount a sum as is required to satisfy any claims which may be enforceable against Technica. Subject to applicable law, the Vendor shall not have any lien or right of retention of whatsoever nature in respect of the Operating Site and expressly waives all rights that it may have in this regard.
- PROTECTION OF WORK – The Vendor shall be solely responsible to protect partially completed Work and equipment or materials left at the Work site and to be liable for any damage incurred by the Vendor’s failure to do so.
- SUBSTANDARD WORK – If Technica, in its sole discretion, determines that the Vendor has failed or is failing to satisfactorily perform any aspect of the Work, Technica may, at no extra cost to Technica and at its sole option notify Vendor in writing that Vendor is in default of this Agreement and require Vendor to correct the default within two (2) working days of receiving the notice.
If the work or action stated in such notice as requiring correction cannot be completed within the two (2) working days specified, Vendor shall be considered to be in compliance with Technica’s instruction if Vendor commences such work or action within the specified time, provides Technica with an acceptable schedule for performance, and proceeds to perform such work or action in accordance with such schedule.
If the Vendor should neglect to complete the Work properly or fail to perform any provisions of the Agreement, Technica may without prejudice to any other right or remedy it may have: (a) correct such default, replace and/or re-execute faulty or defective Work done or materials furnished, and deduct the cost thereof from the payment then to thereafter due to Vendor; (b) require the Vendor to increase the number of workers assigned to the Work and/or to use overtime labor (including work on holidays) to complete the Work on schedule; (c) take possession of Vendor’s materials and utilize Vendor’s construction machinery and equipment, the whole subject to the rights of third parties, and finish the Work by whatever method it may deem expedient but without undue delay or expense; (d) withhold any further payments to Vendor until the Work is finished; (e) upon total performance of the Work, charge Vendor the amount by which the full costs of finishing the Work together with a reasonable allowance to cover the cost of any corrections required by the warranties for which Vendor is liable exceeds the unpaid balance of the contract price; and (f) on expiry of such warranty period as might exist, charge Vendor the amount by which the cost of corrections under warranty exceeds the allowance provided for such corrections, or if the cost of such correction is less than the allowance, pay Vendor the difference.
The Vendor shall be responsible for all costs or expenses, including legal fees and expenses, incurred by Technica as a result of Vendor’s failure to satisfactorily perform the Work. The preceding provisions in this Section are not meant to exclude any right to terminate that Technica might have at law.
TERMS APPLICABLE TO PRODUCTS AND SERVICES
- GENERAL – In the event the Vendor provides services and/or Product to Technica either directly or through a subcontractor, the Vendor agrees for itself, and agrees to require any subcontractor who provides services and/or Product to Technica pursuant to a Purchase Order to agree to all Terms and Conditions set forth herein as a condition of their providing the Work. Both the Vendor under a Purchase Order and any of its subcontractors shall be referred to as the “Vendor” herein.
- TERMINATION – The Parties agree that Technica may terminate or suspend this Agreement at any time. In the event this Agreement is terminated by Technica without cause and prior to completion, Technica’s sole liability to the Vendor hereunder shall be limited to the Vendor’s out-of-pocket costs for labor and material for the actual Work satisfactorily performed by the Vendor to the date of termination, as determined in the sole discretion of Technica, supported by reasonable and sufficient records. Under no circumstances will the Vendor be entitled to recover lost profits or other damages from Technica as a result of such early termination. The occurrence of any one or more of the following shall, so long as it subsists, constitute an “Event of Default”: (a) if the Vendor defaults on any of the obligations set forth in this Agreement; (b) if a fatal or serious injury occurs in the provision of Services or delivery of the Product as a result of negligent or willful acts or omissions on the part of the Vendor; and (c) if the Vendor becomes bankrupt, makes an assignment for the benefit of creditors or a proposal or similar action under applicable law, or commences (or has commenced against it) any other proceedings relating to it under any applicable law related to reorganization, arrangement, readjustment of debt, dissolution or liquidation or by any act indicating its consent to, approval of, or acquiescence in, any such proceeding; or the Vendor takes steps to wind-up, dissolve or terminate its existence; or a receiver or receiver and manager, official manager, trustee or similar official is appointed over all or any part of its assets.
Where the Vendor has committed an Event of Default, Technica may order the performance of the Services or delivery of the Product suspended, in whole or in part, without any adjustment to the contract price (and for certainty, without any payment for demobilization or cancellation costs) or terminate this Agreement, in each case with immediate effect on written notice to the Vendor and the Vendor shall indemnify Technica for all costs, fees and damages suffered by Technica as a consequence of such termination.
- PURCHASE ORDER AND AGREEMENT – The offer by Technica in the form attached to these Terms and Conditions shall be defined as the “Purchase Order”. The Purchase Order, together with these Terms and Conditions, any Specifications, Change Order, and the proof of delivery for Product shall be referred to as the “Agreement”. A Purchase Order does not constitute an acceptance by Technica of any offer or proposal by the Vendor, whether in the Vendor’s quotation, acknowledgement, invoice or otherwise. In the event the Vendor’s quotation or proposal is held to be an offer, that offer is expressly rejected and is replaced in its entirety by the offer made by the Purchase Order. A contract is formed when the Vendor accepts the Purchase Order. Each Purchase Order shall be deemed accepted by the Vendor upon its terms and this Agreement unless the Vendor sends Technica a notice rejecting the Purchase Order within one (1) business day of receipt of the Purchase Order. Acceptance of the Purchase Order is expressly limited to the terms and condition contained in this Agreement and such terms and conditions as are otherwise expressly referenced on the face of the Purchase Order. No purported acceptance of a Purchase Order on terms and conditions which modify, supersede, supplement or otherwise alter the terms and conditions of this Agreement shall be binding upon Technica and such terms and conditions shall be deemed rejected and replaced by the terms and conditions of this Agreement unless the Vendor’s proffered terms or conditions are accepted in writing by Technica, notwithstanding Technica’s acceptance of or payment for shipment of materials or similar act of Technica.
- PAYMENT – Technica agrees to pay all undisputed amounts for Products and Work within the times specified on the Purchase Order, or forty-five (45) days from delivery or completion of the Work, as applicable, if there is no time specified on the face of the Purchase Order. In connection with Work, payments shall be subject to applicable industry lien laws. All payments for Work are conditional on Technica’s receipt of current workers compensation clearance certificates and the insurance documentation.
- OFF-SET – If the Vendor is in any way indebted to Technica, moneys due to the Vendor hereunder may be withheld as an offset against other such other indebtedness.
- WARRANTIES – The Vendor warrants that the Product and/or Work covered by this Purchase Order conforms to the specifications, drawings, samples or descriptions furnished or specified by Technica, will be fit and sufficient for the purposes intended, will be of quality, made with good materials and workmanship, free from defects, and in respect of the Work, is of professional standards of the industry. In addition, the Vendor acknowledges that the Vendor knows of Technica’s intended use and expressly warrants that all Products and/or Work covered by each Purchase Order will be fit and sufficient for the particular purpose intended by Technica.
- INDEMNITY BY VENDOR – The Vendor agrees to indemnify and hold harmless Technica, Technica’s affiliates, designates, directors, officers, employees and agents (the “Representatives”) against all liabilities, damages, losses, costs, claims, expenses, suits, proceedings and demands with respect to any part of the Product and/or Work covered by this Agreement and the applicable Purchase Order, including but not limited to reasonable legal fees and disbursements, suffered or incurred by the Representatives, including for bodily injury to or death of any person, or damage to or destruction of property resulting from the Product and/or Work, regardless of whether the Vendor has insurance, arising out of, occasioned by or in connection with: a) the failure of any representation or warranty made by the Vendor under this Agreement to be true and correct, b) negligent acts or omissions or willful misconduct of the Vendor and those for whom the Vendor is responsible at law for performance of this Agreement, and c) actual or claimed trade mark, trade name, patent or copyright infringements, or any litigation based thereon. Such obligations shall survive acceptance of the Product and/or Work and payment therefore by Technica.
- CONFIDENTIALITY – The Vendor agrees to keep confidential all of the information and materials it obtains from Technica or its agents in connection with the Purchase Order, and the Vendor agrees not to use or disclose such information to any person, other than for performance of the Work hereunder on a need-to-know basis.
- MODIFICATIONS TO THIS AGREEMENT – This Agreement may not be modified orally, and no modifications or any claimed waiver of any of the provisions hereof shall be binding unless in writing and signed by the party against whom such modifications or waiver is sought to be enforced. No acknowledgement of Purchase Order from the Vendor containing terms and conditions shall have the effect of modifying these Terms and Conditions.
- TIME OF THE ESSENCE – Time is of the essence of this Agreement.
- NO ASSIGNMENT – The Vendor agrees to not assign this Agreement or any part thereof and without the prior written consent of Technica.
- GOVERNING LAWS – This Agreement shall be governed by and construed in accordance with the laws of the province in which the Work is performed or the final destination for the Product.
- ENTIRE AGREEMENT – Except as may be expressly agreed in writing by authorized representatives of the parties, this Agreement includes the Purchase Order, these Terms and Conditions, any Specifications required for the Work, any change orders approved pursuant to Section 8 above, and constitutes the entire agreement between the Parties related to the Product and/or Work and replaces any earlier agreements, whether oral or written. The Purchase Order, and these Terms and Conditions are paramount to any invoice related thereto. The parties agree that there are no other agreements, representations or warranties other than those expressed herein.
- NO WAIVERS – The failure or delay by Technica to exercise or enforce any right or provision of these Terms and Conditions will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized Technica representative.
- SEVERABILITY – If any provision of these Terms and Conditions is invalid, illegal, void or unenforceable, that provision will be deemed severed from the Terms and Conditions and will not affect the validity or enforceability of the remaining provisions of these Terms and Conditions.
- SUCCESSORS AND ASSIGNS – This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
- SURVIVAL – The provisions of Sections 3, 5, 6, 7, 13, 16, 17, 18, 23, 24, 25, 26, 27 as well as any other provision that must survive in order to give proper effect to their intent, survive the expiration or earlier termination of this Agreement for the period specified in the applicable provision or, if no period is specified, indefinitely.