GENERAL TERMS & CONDITIONS – GOODS AND SERVICES
These terms and conditions shall apply to the purchase order (the “Purchase Order”) to which they are attached or referred to (the Purchase Order and these terms and conditions are referred to together as this “Agreement”), notwithstanding any different conditions that may be contained on Vendor’s quotation or acknowledgement of the Purchase Order. If all of these terms and conditions are not acceptable to Vendor (as such term is defined in the Purchase Order) it must immediately notify the ordering Groupe Robert entity (“GR”) of its objections in writing within five (5) days of receipt hereof; if Vendor fails to so object, it shall be deemed to accept, and hereby waives its right to further object to, these terms and conditions. If there is any conflict between GR’s Purchase Order and these terms and conditions, the Purchase Order shall prevail. Acceptance of the Purchase Order includes acceptance of these terms and conditions. Neither the Purchase Order nor these terms and conditions may be modified without GR’s prior written consent. Vendor’s commencement of work or shipment of goods shall constitute acceptance of this Agreement.
1. PRICES AND PAYMENT TERMS; SECURITY.
The prices on the Purchase Order may not be increased without the prior written approval of GR. Unless otherwise provided, the prices include all applicable taxes. Payment terms shall be net forty- five (45) days after GR’s receipt of (1) compliant goods or the performance of services, (2) complete required documentation or (3) a detailed invoice, whichever occurs the latest, unless otherwise agreed to by the parties in writing. A detailed invoice must include, as applicable, purchase order numbers, item numbers, quantities delivered and such other information required by the Purchase Order.. GR may withhold payment due to: (a) defective, deficient, or nonconforming goods or services provided by Vendor under the Purchase Order (b) claims against GR or third parties, or reasonable evidence indicating that such claims have been or will be asserted, in any way relating to or arising out of the goods or services provided or to be provided by Vendor under the Purchase Order (c) GR’s reasonable doubt that Vendor cannot complete the Purchase Order in the time required and for the price stated; (d) damage caused by Vendor or any of its sub-suppliers or sub-contractors under the Purchase Order; (e) any breach of or default under the Purchase Order by Vendor; (f) Vendor’s failure to provide GR any requested documents or information, such as, but not limited to, proof of required insurance, lien/claim waivers, material certifications, welding certificates, safety documentation, warranties, test results, inspection reports, shipping documents, compliance statements, or any other document requested by GR at any time in connection with the Purchase Order. At any time, GR may require Vendor to provide security satisfactory to GR to ensure Vendor’s performance of the Purchase Order and Vendor shall immediately comply with all such requirements. Such security may include, but is not limited to, letters of credit, parent company guarantees, and bank guarantees. GR may also withhold up to 20% of any invoice, as holdback; such holdback to be released upon the later to occur of: thirty (30) days after final completion; and, a final release provided by Vendor to GR in form and substance acceptable to GR.
2. SHIPPING AND PACKAGING.
Unless otherwise stated on the Purchase Order, shipping terms shall be DDP for any road or air transport and CIF for transport by sea in accordance with INCOTERMS 2010, All bills of lading, packing lists and other shipping documents must be provided to GR. No charges for cartage, blocking, packing, drayage, demurrage, boxing or crating will be allowed unless agreed to in advance and in writing
by GR. All shipments must be adequately boxed or crated with any special handling instructions clearly marked and the contents protected to prevent damage in transit and, in the case of export shipments, must be waterproofed and packaged to meet all export requirements and standards. GR’s purchase order number must clearly appear on each package, box, crate or other type of container. Packaging must meet any applicable requirements of the country of destination and transit. Material for two or more GR locations must be packaged separately and marked accordingly.
3. TERMINATION AND MODIFICATION FOR CONVENIENCE; CHANGES; CLAIMS.
GR may terminate or suspend work under this Agreement in whole or in part at any time by giving written notice (including in electronic form) to Vendor of such termination or suspension. In the event of termination, the Vendor shall immediately stop all work. GR shall pay Vendor for actual direct material and labour costs incurred by Vendor up to the time of such termination. In the event of suspension, the Vendor shall immediately cease all work. Vendor shall immediately resume such work upon notice from GR. At such time of resumption of work, Vendor shall notify GR of its actual direct costs reasonably incurred as a result of such suspension, and GR shall pay Vendor for such costs. In each case, Vendor shall use its best efforts to mitigate the costs incurred. Additionally, GR may, at any time, make changes, additions, or substractions (“change(s)”) to the scope of work required under the Purchase Order, which changes may include, but are not limited to, change in drawings, specifications, quantities, delivery or performance schedules, places of delivery or methods of shipment or packaging, or any other change, and Vendor shall comply with such changes. Vendor must assert claims for equitable adjustment of price and delivery or performance schedule within five (5) days of receiving notice of a change (or sooner if required by GR) or of any event giving rise to a claim for equitable adjustment. If GR requires that a change is executed under a particular payment method (e.g., lump sum or cost plus), Vendor shall present its claim for adjustment according to such method and provide GR with all substantiating information requested by GR. If Vendor fails to so assert its claim within such five (5) day (or sooner) period, Vendor waives its right to make such claim. GR may, at its option, terminate this Agreement in accordance with this section if the parties cannot agree on an equitable adjustment within a reasonable time. Except as set forth in this section, no modifications or terminations of this Agreement may be made without GR’s written agreement.
4. TITLE, RISK OF LOSS AND INSPECTION.
Title to the goods covered by this Agreement shall immediately pass to GR upon the earlier of (i) delivery or (ii) GR’s full payment for such goods. Possession of and risk of loss of the goods covered by this Agreement shall pass to GR upon delivery at GR’s designated facility. All work and goods are subject to inspection at the discretion of GR and/or its authorized representatives (which may include a third-party inspection company or GR’s customer). In case of any deficiency in the goods or services, GR may require Vendor to rectify such deficiency at any time by notice to Vendor. Vendor shall rectify the deficiencies at its own cost, upon demand, and without impacting the schedule, all to GR’s satisfaction. If Vendor fails to do so, GR may perform the corrections, or have them corrected on Vendor’s behalf at Vendor’s cost. Any additional expenses (including, but not limited to, costs for personnel, travel expenses and shipping costs for returned goods) incurred by GR and/or its representatives due to deficiencies, errors or omissions by Vendor and/or its subvendors) and/or any other reason attributable to Vendor and/or its sub-vendor(s) will be Vendor's responsibility. The terms of this section shall apply
notwithstanding any contradictory Incoterms set forth in this Agreement.
5. WARRANTY.
Vendor warrants the goods and services furnished hereunder (whether materials, parts or equipment) to be (1) as specified, (2) free and clear of all liens or other security interests and encumbrances, good, valid and marketable title thereto being solely in Vendor, (3) made exclusively of new materials, (4) free of defects of any type (whether in design, material, workmanship or otherwise), (5) of good and merchantable quality and (6) fit for the intended and general purposes for which GR is purchasing them. Unless a longer time is set forth on the Purchase Order, such goods or services warranty shall last for the longer of 12 months from the first date of operation of the goods or 24 months from the date of shipment of the good or completion of the service. If any such goods, or services are found to be in breach of any of the foregoing warranties, Vendor shall at its sole cost promptly, at GR’s option, either (1) replace the goods, at the named destination of GR, (2) repair the goods or (3) re-perform the services found to be defective. Vendor shall be responsible for all costs arising out of the breach of warranty and repair, replacement or re- performance, including, but limited to, disassembly, reassembly, transportation, installation, storage, commissioning and retesting. If Vendor fails to promptly replace or repair the goods or re-perform the services, GR may have such goods repaired or replaced or the services reperformed by GR or a third party at Vendor’s expense. Repairs, replaced goods and re-performed services shall be warranted in accordance with the terms of this Agreement. If repair, replacement or re-performance is not possible, GR may terminate the Purchase Order and Vendor shall refund GR the full purchase price and be liable for all direct and indirect expenses, costs and damages incurred by GR. The foregoing and all other, legal, statutory, express and implied warranties that can have application to the goods and services furnished hereunder shall be deemed conditions of this order and the remedies provided in this paragraph shall be cumulative and in addition to any other or further remedies, GR may have, including under applicable law. The warranties and remedies provided for in this paragraph shall inure to the benefit of GR, its successors, assigns and customers and to the users of its products and GR’s inspection, approval, acceptance of and/or payment for goods or services or any drawings do not relieve Vendor of the warranties provided herein.
6. INDEMNIFICATION.
Vendor assumes responsibility for and shall indemnify, defend and hold GR and GR’s successors, assigns, customers, directors, officers, employees, shareholders, advisors, representatives and agents harmless from and against any and all claims, demands, suits, judgments, actions, proceedings, liability, losses, damages and expenses including fees, expenses and costs, whether or not involving a third party claim, that, in whole or in part, is caused by, relates to or arises out of Vendor’s performance (or non-performance) of the obligations under this Agreement or the misconduct or negligent act or omission of Vendor or its employees, agents and representatives in connection with or relating to this Agreement and the goods and/or services ordered hereunder.
7. INTELLECTUAL PROPERTY INDEMNIFICATION.
Vendor shall indemnify and hold harmless GR and GR’s successors, assigns, customers, directors, officers, employees, shareholders, advisors, representatives and agents against all losses, damages, liability, claims, demands, suits, judgments, proceedings and actions, whether or not involving a third party claim, for actual or alleged infringement of any letters patent, trademarks or corresponding rights, because of the sale or use of any goods or articles specified in this Agreement except those which have been specifically and solely designed by GR. Vendor shall have the right, with GR’s assistance if required, to conduct
settlement negotiations or the defense of any litigation involving a third party originating from such alleged infringement, and Vendor shall pay all judgments, damages, fees, costs or expenses awarded against or incurred by GR. If all or any materials, parts or equipment are alleged or held to infringe a patent and the use thereof is enjoined or GR deems the continued use thereof inadvisable, Vendor shall, at its expense, procure for GR the right to continue the use of such part of the materials, parts or equipment, or replace or modify the same with non-infringing materials, parts or equipment maintaining the original performance characteristics of the materials, parts or equipment.
8. DELIVERY.
Vendor shall deliver by the date(s) specified on the Purchase Order. Time is of the essence for all shipments and performance of services under this Agreement. If at any time, GR determines that the schedule is not being met or is at risk due to an act, error, or omission of Vendor, or Vendor is not taking reasonable steps to remedy any delays, without prejudice to any other rights or remedies, GR may deliver written notice (including in electronic form) to Vendor directing Vendor to accelerate the performance of the order. Vendor shall comply with such directive at its sole cost and expense until performance is back into conformity with the schedule and Purchase Order requirements. If delivery is delayed beyond the specified delivery date, GR shall have the right to cancel the unfilled portion of the Purchase Order without obligation to Vendor and GR shall have the right to place the unfilled portion of the Purchase Order with another supplier or suppliers, and any resulting costs or consequent increase in cost to GR shall be paid by Vendor.
9. CONFIDENTIAL INFORMATION.
In addition to any signed confidentiality agreement between the parties, and except as may be required by law or court order or as necessary in connection with the operation, repair, maintenance and modification of materials, parts and equipment, Vendor agrees to keep and maintain confidential any and all proprietary information obtained by Vendor from GR or in connection with this Agreement, including, without limitation, all information on the face of the Purchase Order and to not make use of such information, without the prior written consent of GR, except in connection with this Agreement. Such information shall not be disclosed to any third party without the previous written consent of GR.
10. COMPLIANCE WITH LAWS.
Vendor acknowledges it is committed to comply with the requirements of all applicable federal, provincial, state and local laws, statutes, rules, regulations and orders. Vendor shall hold GR and its successors, assigns, customers, directors, officers, employees, shareholders, advisors and agents harmless from and indemnify them for any and all losses and damages, whether or not involving a third party claim, resulting from Vendor’s violation of the provisions of any such laws, statutes, rules, regulations and orders, including, without limitation, those relating to labor, wages, hours and other conditions of employment and laws relating to prices and unfair competition.
11. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT AND TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW: (A) GR SHALL NOT BE LIABLE TO VENDOR FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, CONTINGENT OR INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES; LOSS OF PROFIT OR REVENUE; LOSS OF USE OF GOODS OR EQUIPMENT; DAMAGE TO ASSOCIATED GOODS, DATA OR EQUIPMENT; COST OF CAPITAL; OR OTHER TYPES OF ECONOMIC LOSSES, ALL IRRESPECTIVE OF WHETHER SUCH DAMAGES, LOSSES OR COSTS CONSTITUTE
DIRECT OR CONSEQUENTIAL DAMAGES AND WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE; AND (B) IN NO EVENT SHALL GR’S AGGREGATE LIABILITY TO VENDOR EXCEED THE PURCHASE PRICE STATED ON THE PURCHASE ORDER.
17. INSURANCE.
Prior to commencing the work, the Vendor shall, for the entire duration of the contract, maintain insurance coverage that fully meets the requirements of GR in order to guarantee GR against any material damage to its property or against any material or bodily injury caused to the property and to the person of his staff or third persons, during the delivery of the equipment covered by this contact. The Vendor shall provide GR with a Certificate of Insurance and insurance forms or policies in accordance with GR’s requirements as proof of coverage of civil liability and that of its employees, for an amount of two million dollars ($ 2,000,000) per claim, each claim or lawsuit to be considered a claim. The Vendor must require its insurer (s) to notify GR in writing at least 30 days prior to the termination or non-renewal of the coverage and waives subrogation rights against GR and its affiliates.
18. SUBCONTRACTING.
Vendor shall not sublet, subcontract or sub-supply any portion of the Purchase Order without GR’s prior, written consent, which consent may be withheld, conditioned, revoked, or delayed in GR’s absolute discretion at any time. Vendor shall remain fully responsible and liable for the acts and omissions of any of its sub-vendors and of any persons employed by any of them, and Vendor shall not be relieved from any responsibility for the portion of the order that is sublet, subcontracted or sub-supplied. Nothing contained in this Agreement shall create any contractual relationship between GR and the sub-vendors. Vendor shall provide an unpriced copy of all Purchase Orders and contracts for work or goods that are sublet, subcontracted or sub-supplied. GR shall have the right to expedite and inspect all such work and the production of such goods as though they were being performed by Vendor. Vendor’s subcontractors and suppliers of all tiers must obtain written permission from an authorized representative of GR prior to mobilization to or demobilization from all GR project sites, if applicable.
19. DEFAULT.
If (1) Vendor becomes insolvent, (2) Vendor files a voluntary petition under any bankruptcy or insolvency law, (3) a petition is filed against Vendor under any bankruptcy or insolvency law, (4) Vendor makes an assignment for the benefit of creditors, (5) Vendor fails to deliver the goods and/or services in accordance with this Agreement that GR has paid for, (6) Vendor comes under the controlling influence of a competitor of GR; or (7) Vendor breaches any provision of these terms or the Purchase Order (each, a default), GR shall have the right to: terminate all or any portion of this Agreement for default, require satisfactory assurances of performance, take over all or any portion of the work itself or assign it to a third party at Vendor’s cost, withhold all further payments until the work is complete, and/or exercise or demand any and all other rights and remedies available under this Agreement or the law, all such rights and remedies being cumulative and without prejudice to any other right or remedy. Upon a default, , GR shall retain title to all of GR’s property and goods GR has paid for, and Vendor irrevocably grants GR the right to enter and access Vendor’s facilities to remove such property and paid-for goods. If a court of competent jurisdiction subsequently determines that GR’s termination under this section was wrongful or unjustified, then such termination shall be automatically considered a termination for convenience as set forth in section 3 and Vendor shall have the rights under that provision, but no other rights or claims for damages.
20. LIENS ON THIRD-PARTY PROPERTY.
This Agreement may involve goods and services that GR will resell to one or more third-party customer of GR. Vendor is not a third-party beneficiary of any agreements between GR and its customers. To the extent permitted by applicable laws, Vendor waives its rights, if any, and shall require any subvendors to waive their rights, if any, to file, take, or register any security interest, charge, hypothec, mechanics’ lien or similar liens (“liens”)) against the real or personal property of any and all such third- party customers of GR. If Vendor (or any subvendor) files, takes, or registers any such liens, Vendor shall immediately discharge and release such lien and execute releases (including obtaining any such discharge and release from any subvendor) promptly upon GR’s request. If at any time Vendor fails to promptly provide any discharge and release as requested by GR, GR may hold back payments due from GR until Vendor has provided such discharge and release.
24. GOVERNING LAW.
This order and all matters arising hereunder shall be governed by the laws of the province of Québec, without regard to conflict of laws provisions.
25. DISPUTE RESOLUTION.
Any dispute arising under or relating to this Agreement that cannot be resolved within a reasonable amount of time by good faith negotiations shall be finally resolved by binding arbitration. Such arbitration shall be conducted in accordance with the Rules of Arbitration of the Quebec Code of civil procedures by a single arbitrator appointed pursuant to such rules. The arbitration shall be conducted in the English language and occur in the city of Montreal or at such other location as may be agreed to by the parties. The arbitrator’s ruling shall be set forth in writing and be final and binding on the parties.
26. LANGUAGE.
This Agreement and all other agreements, notices and other agreements required in connection with this Agreement shall be in the English language. Les parties reconnaissent leur volonté expresse que le présent contrat, ainsi que tout autre document en lien avec le contrat, soit rédigé en langue anglaise.
27. INVALIDATION AND NON-WAIVER.
In the event that any portion of this Agreement or its terms and conditions are rendered invalid by a court of law, the remainder of the Agreement shall be and remain valid, binding, and fully enforceable. Failure by GR to insist upon strict performance of any term of this Agreement shall not constitute a waiver of any of the terms of this Agreement or of any default.
28. COMMUNICATIONS.
Any notices to be given under this Agreement shall be made in writing and mailed to GR or Vendor at the address listed on the Purchase Order. Electronic communications are acceptable and constitute a writing under this Agreement.
29. ASSIGNMENT.
Neither this Agreement nor any monies due hereunder may be assigned without GR’s prior written consent.