Acceptance

This order constitutes the entire agreement between the parties, and acceptance of this order is expressly limited to these terms and conditions and the terms and conditions set forth on the face of this order. Supplier automatically accepts the terms and conditions by express acceptance or by shipment of the goods. All prior representations, negotiations or arrangements are superseded by these terms and shall not form a basis for interpretation of these terms. Any changes must be agreed to in writing by Buyer.

Changes

Buyer shall have the right at any time to make changes in drawings, designs, specifications, materials, packaging, time and place of delivery and method of transportation. If any such changes cause an increase or decrease in the cost, or the time required for the performance, an equitable adjustment shall be made and this agreement shall be modified in writing accordingly. This right to an adjustment shall be deemed waived unless asserted within thirty (30) days after the change is ordered.

Shipping and Invoicing

Invoices shall be in duplicate and will indicate number of packages and means of transportation. Each package should indicate case number and Buyer’s purchase order number. Unless otherwise agreed upon in writing, title to the goods and risk of loss will remain with Supplier and shall not pass to Buyer until delivery and acceptance by Buyer at Buyer’s requested destination.

Price Reductions

Supplier will give Buyer the benefit of any price reductions occurring before the specified shipping date or to actual delivery date to Buyer’s warehouse whichever is more advantageous to Buyer. Supplier warrants that the price for the articles sold hereunder are not less favourable than those currently extended to any other customer for the same or similar articles in similar quantities.

Warranty

Supplier warrants that the goods shall be: (i) in merchantable condition and free from defects in design, workmanship and materials, (ii) in conformity with the order and specifications, (iii) fit for such particular purposes and uses specified by Buyer or otherwise known to Supplier, and (iv) free and clear of any liens or other adverse claims against title. Buyer may, but shall not be required to inspect the goods. All warranties statutory, express or implied will survive inspection, test, acceptance and payment by Buyer or Buyer’s customers or agents. Supplier agrees, at its own cost and expense, to defend and hold Buyer harmless from and against any and all claims made against Buyer based upon, relating to or arising of any claimed defects in the goods or work performed by Supplier pursuant to this order.

Taxes, Transportation, Other Charges

Except as otherwise provided on the face of this order, the price includes all costs and charges, including without limitation, all applicable taxes and duties and all charges for packing, loading and transportation. If Buyer has agreed on the face of this order to pay any such charges, such charges shall be listed separately on Supplier’s invoices. Goods shall be packed, marked and described and the carrier shall be selected, so as to obtain the lowest transportation cost possible, and increased charges due to failure to do so will be charged to Supplier. If any manufacturer’s excise tax, value added tax or other tax measured by selling price is included in or added to the price of the goods paid by Buyer, then, in the event all or any part of that tax shall be refunded to Supplier, Supplier shall promptly remit such refund in full to Buyer.

Time of the Essence

Time is of the essence in this transaction. In addition to the Buyer’s remedies for breach of contract, this order may be cancelled or refused without liability if the goods are not shipped as specified or on the date specified.

Default

At Buyer’s option, Supplier will repair or replace any nonconforming goods. If Supplier does not replace or correct defects in nonconforming goods promptly, Buyer, after reasonable notice to Supplier, may make such corrections or replace such goods and charge Supplier for the costs incurred by Buyer.

Indemnification

Supplier will defend and indemnify Buyer against all claims, actions, liability, damage, loss and expense (including investigative expense and attorneys’ fees incurred in litigation or because of threatened litigation) as the result of Buyer’s purchase and/or resale of the goods to its customers arising or alleged to arise from (i) patent, trademark, industrial design, copyright or other intellectual property rights infringement, (ii) the failure or alleged failure of the goods to comply with this order or with any express or implied warranties of Supplier, (iii) defects in design, material or workmanship, or (iv) Supplier’s negligence or wilful act or omission to act. Buyer may terminate this order or any part thereof if Supplier fails to comply with any of these terms and conditions or the conditions set forth on the face of this order. Buyer’s remedies shall survive any termination of this agreement.

Insurance

Supplier shall take out at its own expense the necessary insurance, in particular public and commercial general liability insurance, including bodily injury, property damage, fire damage, completed operations and product liability, with limits of not less than five million Canadian dollars per occurrence and per year. All policies shall name Buyer as an additional insured and shall be written by reputable insurance companies. Upon execution of this order, Supplier shall furnish to Buyer certificates of insurance evidencing these coverages. Supplier shall also maintain at all times additional insurance in such amounts and with such terms of coverage as is required by applicable laws.

Ethics and Social Responsibility

In accordance with the Buyer’s commitments to ethics and social responsibility, Supplier declares to: Operate in compliance with national and international laws, comply with principles of fair competition, and reject all forms of corruption. Supplier acknowledges that it has received the Buyer’s Supplier Charter and shall make commercially reasonable efforts to abide by the principles outlined in the Charter. Supplier may also agree to be audited by Buyer or a mandated third-party on its compliance with the Supplier Charter. In addition, Supplier commits to being consistent with the principles of the Universal Declaration of Human Rights, the UN Global Compact and Convention on the Rights of the Child and Conventions of the International Labour Organization, to which Buyer adheres. Supplier commits in particular: To abide by human rights and freedoms and personal dignity, not to use child labour, forced labour or covert labour, not to discriminate between its employees on grounds prohibited by applicable law, not to use any mental or physical coercion, to take reasonable action to prevent any psychological harassment and to put a stop to any psychological harassment situation in the workplace, to respect the laws in force related to employment, labour, pay equity, employment equity and health and safety. The parties agree that this provision constitutes Buyer’s prerequisite for entering into this Agreement. Should Supplier fail to meet its obligations and not remedy the situation within fifteen (15) days of a formal notice sent by Buyer, the Agreement shall be automatically terminated.

Environment

(a) Environmental Issues Related to Goods: Supplier warrants that it provides Buyer with goods complying with all applicable environmental laws and regulations in the jurisdiction where the goods are to be delivered. In case of an eco-labeled good, Supplier shall ensure that the good complies with all environmental and energy efficiency labelling requirements applicable in the jurisdiction where it is to be delivered. Supplier shall also ensure that it has been duly authorized to use such labels, and shall provide evidence of same upon Buyer’s request. Supplier undertakes to inform Buyer of the presence of any substance entering into the composition of the goods which is controlled, regulated or classified under applicable environmental laws and regulations as potentially dangerous, hazardous or toxic to human health or the environment (such as substances specified in REACH or ROHS European Regulations, or any other similar regulation in the world). Supplier undertakes to specify their nature and quantity in the Material Safety Data Sheet (MSDS) if any, and to update the information if necessary. Supplier shall keep itself informed of the evolution of all environmental laws and regulations applicable to the goods, and shall ensure that the goods are in compliance with all such laws and regulations. Supplier warrants that any information it delivers to Buyer according to this article is accurate, consistent and complete, and hereby authorizes Buyer to rely on such information. Supplier shall, upon Buyer’s request, provide evidence of its compliance with the requirements described hereinabove. Upon Buyer’s request, Supplier agrees to collaborate with Buyer by providing information on the goods’ Life Cycle, such as but not limited to, carbon footprint, recyclability, energy efficiency.

(b) Environmental Issues regarding Supplier’s operations: Supplier warrants that its activities comply with all environmental laws and regulations in force in the jurisdiction(s) in which it operates. According to Buyer’s environmental policy, Supplier undertakes to implement or maintain an environmental management system on each site where the goods are manufactured. Buyer may request that Supplier be ISO 14001 certified. In which case, Supplier shall provide evidence of such certification for all sites concerned.

Export control

Goods and associated materials supplied or licensed hereunder may be subject to various applicable export laws and regulations including export control, economic restrictions or trade embargoes imposed by any applicable governmental authority. It is the responsibility of the Supplier to comply with all such laws and regulations. Supplier shall defend, indemnify and hold harmless Buyer from any claims resulting from the breach of such laws and regulations. Supplier shall undertake that all third parties providing such supply from Supplier comply with this requirement. Notwithstanding any other provision to the contrary, if Canadian or provincial laws require export authorization for the export or re-export of any Good or associated technology, no delivery can be made until such export authorization is obtained, regardless of any otherwise promised delivery date, and Buyer will be relieved of any obligation relative to the delivery of the Good(s) subject to such delayed authorization without liability of any kind to Buyer. Further, if any required export authorization is denied, Buyer will be relieved of any further obligation relative to the purchase of the Good(s) subject to such denial without liability of any kind to Buyer. Supplier shall defend, indemnify and hold Buyer harmless from any delays or any other losses arising out of Supplier’s failure to timely provide any export or import documentation. Buyer will not comply with boycott related requests except to the extent permitted by Canadian law and then only at Buyer’s discretion.

Corruption

Supplier prohibits all unlawful payments and practices and is fully committed to the elimination of corruption in its business transactions. In addition, Supplier prohibits facilitation payments. Supplier shall comply with all applicable laws and regulations on corruption, bribery, unlawful business activities and extortion. Supplier shall never make or approve an unlawful payment to anyone under any circumstances. Supplier warrants that it has not directly or indirectly paid any commission, fees or granted any rebates to any third party, its employees or of end-customer, or made any gifts, entertainment or any other non-monetary favours or other arrangements in violation of its policies or the law.

Conflicts of interest

Buyer expects Supplier to identify and avoid situations where there is an actual or potential conflict of interest and agrees to comply therewith. Supplier must disclose any actual or potential conflict of interest. Supplier’s employees are prohibited from accepting kickbacks or bribes of any form.

Gifts and hospitality

Supplier’s policy limits its employees’ ability to accept gifts and hospitality. Gifts and hospitality are acceptable only if they are of reasonable, modest and symbolic value, occasional, transparent, and can be reciprocated. Supplier expects Buyer to refrain from offering gifts and hospitality to Supplier’s employees and will refuse all gifts and hospitality that would not correspond to those criteria.

General Provisions

(a) Supplier is active at all times in his own capacities and rights as an independent contractor from Buyer. This transaction does not create a principal-agent or partnership relationship between them, and neither one may legally commit the other in any matter whatsoever.

(b) Supplier shall comply with all laws, regulations and policies applicable to it by any jurisdiction and shall obtain all permits needed to complete this transaction under the laws of the country from which the shipment is made.

(c) If the importation of the goods results in the assessment of a countervailing duty on Buyer as the importer, Supplier shall reimburse such countervailing duty to Buyer, provided such reimbursement is permitted under Canadian laws and regulations.

(d) Supplier shall cooperate fully with Buyer at Supplier’s expense in obtaining approvals of the goods requested by Buyer from certifying organizations such as Underwriters Laboratories or CSA.

(e) Any goods that are hazardous will be packaged, marked and shipped by Supplier to comply with all federal, provincial and local regulations and will further comply with all special Buyer requirements. Supplier shall furnish Buyer a Material Hazard Data Sheet covering all such goods.

(f) Supplier shall treat as confidential any proprietary information it has received from Buyer in connection with this order.

(g) Unless otherwise specified on the order, payment of the purchase price shall be due on the first day of the second month following the later of Buyer’s receipt of Supplier’s correct invoice for such shipment or the date on which the goods are received and accepted by Buyer.

(h) If Supplier ceases to conduct normal business activities or becomes subject to bankruptcy or insolvency proceedings, Buyer may elect to terminate this purchase order without any liability or penalty.

(i) Buyer may waive performance of any condition, but waiver by Buyer of a condition shall not be considered a waiver of that condition for succeeding performance. None of Buyer’s remedies hereunder shall limit any other recourse available to Buyer in law or in equity.

(j) This purchase order is not assignable by Supplier without the prior written consent of Buyer.

(k) This transaction and all its terms shall be construed in accordance with and all disputes shall be governed by the laws of the province of Canada from where this purchase order is issued, and excluding the provisions of the Convention on the International Sale of Goods. Parties hereto submit to the jurisdiction of the courts from the province of Canada where this purchase order is issued in the event of any proceedings or disputes.

(l) Supplier and Buyer agree that in the event any portion of the transactions contemplated herein are hereafter effected using Electronic Data Interchange (“EDI”) the terms and conditions of this document shall continue to apply thereto notwithstanding any EDI trading agreement between the parties. Any data electronically transmitted will be as legally sufficient as a written paper document signed and exchanged between the parties provided each party has adopted appropriate digital identification.

(m) Buyer regularly conducts internal audits of the past three (3) calendar years of operations in all of its divisions to identify incorrect payments and to verify accuracy in entitlement processing such as volume rebates, purchase and early payment discounts etc. Should Buyer identify any such incorrect payment or inaccuracy, Supplier will be provided with at least fifteen (15) days’ written notice (“Claim Review Period”) of any such audit claim, and will be deemed to have accepted the audit claim unless it objects to the same in writing to Buyer within the Claim Review Period. In the event Supplier objects in writing to any audit claim, the parties agree to negotiate in good faith with regard to such claim. Supplier agrees the amount of such claim may be set off by Buyer, at Buyer’s option, against other amounts owed to Supplier, if applicable, in accordance with the provisions of this Agreement.

 

Vendor accepts Purchaser’s order on the express condition that Purchaser agrees to and is bound by the terms and conditions set forth below. All orders by Purchaser shall be subject to the following terms and conditions of sale. Such agreement shall be conclusively and irrevocably evidenced by Purchaser accepting delivery of shipment under such order or by Purchaser’s payment of the invoice covering such payment.

ACCEPTANCE
Acceptance of any order is subject to credit approval by Vendor, acceptance of the order by Vendor and, when applicable, by Vendor’s suppliers (i.e. manufacturers, vendors, or other third parties that provide goods to Vendor for resale to Purchaser). If Vendor, in its sole discretion, determines that Purchaser’s ability to pay or credit becomes unsatisfactory or it has reasonable grounds for insecurity, Vendor reserves the right, upon notice to Purchaser, to terminate the Purchase Order with no liability to Vendor.

EFFECTS OF TERMS AND CONDITIONS
The sale of the Goods described herein (the “Goods”) is subject to and governed solely by these terms and conditions and no terms or conditions of Purchaser’s purchase order, any agreement or any other understanding shall be binding on Vendor or apply in any manner to the sale of such Goods. No modification of these terms and conditions shall be of any force or effect unless signed by an authorized officer of Vendor. No specification, drawing, print or photograph prepared by Purchaser relative to Purchaser’s order shall be binding on Vendor for any purpose unless signed by an authorized officer of Vendor. Vendor reserves the right to modify these terms and conditions and the terms of any offer/quote at any time and from time to time without notice in its sole discretion.

PRICES & TERMS OF PAYMENT
Prices for Goods are subject to adjustment to reflect (i) any increase in import duty, import surcharge or other government charge such as tariffs, insurance or freight which becomes effective after the date of the Purchase Order and is payable by Vendor, and (ii) any increase in the cost of manufacture of the Goods caused by an extraordinary increase in price of raw materials which could not have been foreseen on the date of the Purchase Order.

Purchaser further acknowledges that price-volatile Goods may lead to short notice price increases on the part of Vendor’s suppliers and Vendor reserves the right to charge these subsequent price adjustments to Purchaser on the date of the invoice.

Unless otherwise specified, prices are quoted in Canadian dollars for Goods being sold from inventory. Payment terms are net thirty (30) days for payment without discount.

Payments made using cash, cheques, Electronic Funds Transfer (EFT), debit cards, online banking and Interac transfer will be applied to the Purchaser’s account at full value. Vendor will accept payments made by credit card at the time of purchase and apply it to the Purchaser’s account at full value. Where credit card payments are made non-concurrent with the purchase, the Vendor in its discretion may apply a service fee to the Purchaser’s account. Where credit card payments are accepted outside a self-service portal and Vendor provides a service in processing the credit card, the Vendor in its discretion may apply a service fee to the Purchaser’s account.

Interest at the rate of 2% per month will be charged on past due accounts (26.8% per annum). If Purchaser’s account is past due, in addition to other rights and remedies, Vendor may suspend shipments, deliveries or performance hereunder or under any other contract with Purchaser until Purchaser’s account becomes current or until Vendor receives satisfactory security or cash prior to shipment.

Vendor may at all times set off any amount that Purchaser, or any affiliate of Purchaser, owes to Vendor against any amount that Vendor, or any Vendor affiliate, owes to Purchaser.

DELIVERY
Unless otherwise agreed in writing with Purchaser, delivery terms are, as per current Incoterms 2020, Ex Works – Vendor’s delivery truck at Vendor’s warehouse, and Ex Works – Manufacturer’s plant for domestic Goods being drop-shipped to Purchaser or as otherwise agreed to by Vendor’s written consent.

Shipping dates are approximate only and Vendor disclaims any liabilities for late deliveries. If Purchaser requires emergency deliveries or outside of normal business hours, any extra costs shall be borne by Purchaser. The time period specified herein within which delivery is to be made shall commence upon receipt by Vendor of Purchaser’s written acceptance of Vendor’s Order Acknowledgement. Delivery must be taken by Purchaser, or adequate shipping instructions shall be furnished by Purchaser to Vendor within ten (10) days of Vendor’s notification that the Goods are ready for delivery, failing which the full purchase price shall forthwith become due and payable, and Vendor may at its option, either store the Goods and bill Purchaser for storage charges or dispose of same for Purchaser’s account and risk at a public or private sale, or exercise such other rights and remedies as may be available to Vendor in the circumstances.

TITLE AND RISK OF LOSS OR DAMAGE
All right, title and interest in and to the Goods shall remain with Vendor until such Goods have been paid for in full. However, such Goods shall be entirely at Purchaser’s risk from the time placed on a common carrier and the loss, damage, deterioration or destruction of the Goods thereafter shall not release Purchaser from its obligations hereunder. In the event of any default to make payment by the Purchaser, Vendor shall have the right to take possession of any Goods already delivered and to remove same without notice and without legal proceedings, in which case all payments theretofore made shall be credited to the Purchaser’s account after deduction of a reasonable rental fee and the costs of repossession, if any, including reasonable legal fees. Purchaser hereby agrees to defend, indemnify, and save harmless Vendor from any and all loss arising out of any or all claims, suits and demands by reason of, but not limited to, the retention of title to the Goods by Vendor while same are at the Purchaser’s risk.

QUOTATIONS
All quotations expire thirty (30) days from the date of the quotation unless otherwise noted on the quotation. This time limit applies even if Purchaser uses the quotation to submit a job or project bid to any other party. Quotes are subject to Purchaser’s credit approval by Vendor and do not imply acceptance of an order by Vendor.

RETURN OF PRODUCTS AND ORDER CANCELLATION
Vendor shall accept returns of normal stock Goods for a period of forty-five (45) days following shipment for exchange or refund of the purchase price; provided, that Goods must be in their original cartons, unopened and unused and original invoice must be provided by Purchaser to Vendor. Stock returns that are used, opened, and/or not in their original packaging may be subject to a minimum 15% restocking fee, or the return may be refused based on the condition of the returned material which must be in resalable condition. Non-stock returns will generally be disallowed except for situations where a return material authorization or appropriate credit has been provided by the Vendor. Applicable sales tax will be refunded where allowed by applicable law or statute.

TERMINATION
Vendor may terminate the whole or any part of any order if (a) Purchaser ceases to conduct operations in the normal course of business, (b) any proceeding under any bankruptcy or insolvency laws is brought by or against Purchaser, (c) a receiver is appointed or applied for by Purchaser, or (d) an assignment for the benefit of creditors is made by Purchaser.

PRODUCT USE AND SAFETY
BEFORE PURCHASER USES OR INSTALLS ELECTRICAL PRODUCTS, IT IS PURCHASER’S RESPONSIBILITY TO CONSULT THE NATIONAL ELECTRIC CODE AND ANY PERTINENT LOCAL, PROVINCIAL OR NATIONAL CODES, RULES OR REGULATIONS FOR APPROVED INSTALLATION PROCEDURES AND PRECAUTIONS.

CLAIMS
All claims for missing items, damaged items, or inaccuracies must be made within two (2) days of the date of Purchaser’s receipt of Goods and must state with detail all material facts concerning the claim. Failure by Purchaser to give notice within such two (2) day period shall constitute an unqualified acceptance of such Goods by Purchaser and a waiver of any rights to reject or revoke acceptance of such Goods.

TAXES
Any tax of any nature including, without limitation, any excise, sales, use, Goods and services or other similar taxes which the Vendor may be required to pay, to collect or to reimburse to others, by reason of the manufacture, ownership, use or sale of any product sold or service provided hereunder shall be the sole responsibility of Purchaser and shall be added to the amount to be paid hereunder.

LIMITS OF CONTRACT
Unless expressly specified in the Purchase Order, installation, repair, or other similar services are not included in the sale. However, should any services be so specified in the Purchase Order, they shall also be governed by the terms and conditions hereof.

TECHNICAL DATA
All drawings, descriptive matter, weights, dimensions and performance data submitted with or made a part of Vendor’s Order Acknowledgement are based upon information furnished by the Purchaser in accordance with its requirements and Vendor assumes no responsibility for the accuracy of such information. Purchaser waives any rights against Vendor for error or omission made by Purchaser on the Purchase Order.

Vendor acts as a distributor of the Goods and cannot under any circumstances be held responsible for the accuracy of the characteristics of shape, dimensions, weight, performance, function specifications and, more generally, for any technical characteristics of the Goods indicated in catalogs, prospectuses, price lists, advertising material, etc., issued by vendor, irrespective of the medium used. This information is provided for guidance only and may be modified at any time without notice. In addition, Purchaser is advised that Vendor may use automated approaches, including the use of Artificial Intelligence (AI) capabilities, to improve the quality and completeness of technical product data. Purchaser shall in any event always refer to the manufacturers’ most current instructions/specifications and any other information attached to or displayed on the Good or its packaging.

FORCE MAJEURE
For all purposes hereof, force majeure includes but is not limited to any act of God, epidemic, pandemic, war, mobilization, governmental regulation, strike, lockout, drought, flood, total or partial fire, obstruction of navigation, loss, damage or detention in transit, defective materials or delays caused by shippers, or other contingences or causes beyond Vendor’s control which might prevent the manufacture, shipment or delivery of Goods covered hereby. Performance of Vendor’s obligations may be suspended pending force majeure, without Vendor being responsible to Purchaser for any damages or losses resulting from such suspension.

LIMITED WARRANTY
Subject to the following, Vendor warrants that the Goods sold by it hereunder will conform to specifications and applicable industry standards and title will be clear from any security interests or encumbrances. Vendor shall ensure that Purchaser benefits from existing manufacturers’ warranties and in no event shall Vendor’s warranty exceed the warranty given by manufacturers of the Goods including for any indemnification for intellectual property infringement. The sole obligation of Vendor under such warranty shall be to replace or repair as deemed appropriate by manufacturer and provide assistance to Purchaser for any claim made to manufacturer of the Goods. THE ABOVE IS THE SOLE AND EXCLUSIVE WARRANTY, EXPRESS OR IMPLIED, PROVIDED BY VENDOR AND IS IN LIEU OF ALL OTHER WARRANTIES, OF ANY NATURE WHATSOEVER, CONTRACTUAL, LEGAL, STATUTORY OR OTHER, AND WHETHER FOR MERCHANTABILITY, QUALITY, FITNESS OR OTHERWISE.

LIMITATION OF LIABILITY
THE LIABILITY OF VENDOR WILL NOT UNDER ANY CIRCUMSTANCES EXCEED THE PURCHASE PRICE OF THE GOODS FURNISHED AND IN NO EVENT SHALL VENDOR BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY OR CONTINGENT DAMAGES OR COMMERCIAL LOSS OF ANY KIND (INCLUDING DAMAGES FOR LOSS OF PROFITS) ALLEGEDLY SUSTAINED BY PURCHASER. Purchaser acknowledges that the allocation of risk set forth in these terms and conditions allows Vendor to provide the Goods at a lower cost, and Vendor would not enter into this transaction without these limitations on its liability.

INDEMNITY
Purchaser agrees to indemnify and hold Vendor harmless with respect to any third-party claims for personal injury (or death), property damage or other loss which claims are based upon defective or allegedly defective design, material or workmanship furnished by Vendor.

COMPLIANCE
In accordance with the Vendor’s commitments to ethics and social responsibility, Purchaser declares to: (a) operate in compliance with national and international laws, (b) comply with principles of fair competition, (c) reject all forms of anti-trust, bribery and corruption, and (d) directly or indirectly, not make any payment or gift to its customers, to government officials or to directors and employees of Vendor in a manner contrary to applicable laws. Purchaser acknowledges and confirms that it has received and read a copy of Vendor’s Code of Conduct and Ethics Guide, which are also available on the Vendor’s website.

In addition, Purchaser commits to being consistent with the principles of the Universal Declaration of Human Rights, the UN Global Compact and Convention on the Rights of the Child and Conventions of the International Labour Organization, to which Vendor adheres. Purchaser commits in particular: (i) to abide by human rights and freedoms and personal dignity, (ii) not to use child labour, forced labour or covert labour, (iii) not to discriminate between its employees on grounds prohibited by applicable law, (iv) not to use any mental or physical coercion, (v) to take reasonable action to prevent any psychological harassment and (vi) to put a stop to any psychological harassment situation in the workplace, (vii) to respect the laws in force related to employment, labour, pay equity, employment equity and health and safety. The parties agree that this provision constitutes Vendor’s prerequisite for entering into this agreement. Should Purchaser fail to meet its obligations and not remedy the situation within fifteen (15) days of a formal notice sent by Vendor, Purchaser’s violation of any of the obligations contained in this Section 18 may be deemed by Vendor a material breach and the agreement shall be automatically terminated. Purchaser shall defend, indemnify and hold Vendor harmless from all liabilities incurred as a result of any such violation and termination of these terms and conditions.

AUDIT RIGHTS
Purchaser grants Vendor, or its designated representatives, the right to audit (“Audit”) the Purchaser’s records, systems, and processes related to any transactions between Purchaser and the Vendor. Vendor shall provide Purchaser with a written notice before conducting such Audit. This Audit shall be conducted during normal business hours and in a manner that minimizes disruption to the Purchaser’s business operations.

Purchaser agrees to provide reasonable cooperation and access to its records, systems, and personnel as necessary to facilitate the Audit. Failure to provide such cooperation may be deemed a material breach of this agreement.

The Audit may include, but is not limited to, the examination of financial records, compliance with anti-corruption policies, and any other documents or systems that Vendor deems necessary to verify Purchaser’s compliance with obligations set forth hereunder and to verify that Purchaser is adhering to anti-corruption laws and ethical standards.

The costs of the Audit shall be borne exclusively by Vendor, save and except if the Audit reveals any discrepancies, breaches of these terms and conditions or any other agreement between Purchaser and Vendor, or violations of applicable anti-corruption laws or any ethical standards. Shall such breach occurs, Purchaser agrees to promptly address and rectify such issues to the satisfaction of Vendor. Vendor reserves the right to take any further action as permitted under these terms and conditions or applicable law.

Any information obtained during the Audit shall be treated as confidential and used solely for the purpose of verifying compliance, and shall not be disclosed to any third party, except as required by law or in the context of legal proceedings related to compliance matters between Purchaser and Vendor.

EXPORT CONTROL
Goods and associated materials supplied or licensed hereunder may be subject to various applicable export laws and regulations including export control, economic restrictions or trade embargoes imposed by any applicable governmental authority. It is the responsibility of the Purchaser to comply with all such laws and regulations. Purchaser shall defend, indemnify and hold harmless Vendor from any claims resulting from the breach of such laws and regulations. Purchaser shall undertake that all third parties receiving such supply from Purchaser comply with this requirement.

Notwithstanding any other provision to the contrary, if Canadian or provincial laws require export authorization for the export or re-export of any Good or associated technology, no delivery can be made until such export authorization is obtained, regardless of any otherwise promised delivery date, and Vendor will be relieved of any obligation relative to the delivery of the Good(s) subject to such delayed authorization without liability of any kind to Vendor. Further, if any required export authorization is denied, Vendor will be relieved of any further obligation relative to the sale and delivery of the Good(s) subject to such denial without liability of any kind to Vendor. Purchaser shall defend, indemnify and hold Vendor harmless from any delays or any other losses arising out of Purchaser’s failure to timely provide any export or import documentation. Vendor will not comply with boycott related requests except to the extent permitted by Canadian law and then only at Vendor’s discretion.

ANTI-MONEY LAUNDERING, RESTRICTIONS
Vendor rejects questionable orders and payments: except for pre-approved credit arrangements, Vendor rejects third-party payments, cashiers’ cheques, money orders and bank drafts. Vendor accepts only cheques imprinted with Purchaser’s name; wire transfers originated in Purchaser’s account; letters of credit with Purchaser as account party; and credit or debit cards in Purchaser’s name. All payments must be by single instrument in the amount of the invoice, less credits, from banks acceptable to Vendor.

CORRUPTION
Purchaser prohibits all unlawful payments and practices and is fully committed to the elimination of corruption in its business transactions. In addition, Purchaser prohibits facilitation payments. Purchaser shall comply with all applicable laws and regulations on corruption, bribery, unlawful business activities and extortion. Purchaser shall never make or approve an unlawful payment to anyone under any circumstances. Purchaser warrants that it has not directly or indirectly paid any commission, fees or granted any rebates to any third party, its employees or of end-customer, or made any gifts, entertainment or any other non-monetary favours or other arrangements in violation of its Group policy or the law.

CONFLICTS OF INTEREST
Vendor expects Purchaser to identify and avoid situations where there is an actual or potential conflict of interest and agrees to comply therewith. Purchaser must disclose any actual or potential conflict of interest. Purchaser’s employees are prohibited from accepting kickbacks or bribes of any form.

GIFTS AND HOSPITALITY
Purchaser’s policy limits its employees’ ability to accept gifts and hospitality. Gifts and hospitality are acceptable only if they are of reasonable, modest and symbolic value, occasional, transparent, and can be reciprocated. Purchaser expects Vendor to refrain from offering gifts and hospitality to Purchaser’s employees and will refuse all gifts and hospitality that would not correspond to those criteria.

ASSIGNMENT
Purchaser shall not assign or transfer this agreement or any interest in, or monies under, it without the written consent of Vendor and any assignment made without such consent shall be null and void.

GOVERNING LAW AND INVALIDITY
Any provision hereof which is contrary to law will not invalidate any other provision thereof. The foregoing sets forth the sole and entire agreement between the parties with respect to the Goods supplied hereunder. These terms and conditions and the agreement evidenced thereby shall be governed by and interpreted in accordance with the laws of the province of Canada where the Goods are delivered and with the laws of Canada applicable therein. If deliveries are made outside Canada the governing laws shall be the laws of the province from where the Goods are shipped. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this agreement or to any related order.

ENTIRE AGREEMENT
These terms and conditions contain the complete and exclusive understanding between the Vendor and the Purchaser and no other agreements, understanding or proposal, written or oral, between the Vendor and the Purchaser shall be binding unless agreed to in writing by the Parties. Any additional or conflicting terms in any document generated by the Purchaser will not operate as an acceptance unless such terms are agreed upon in writing by the Vendor. These terms and conditions can only be amended by Vendor in accordance with Section 1 above or by a writing signed by the Parties.

 

These Terms and Conditions cover the sale by Jacmar, a division of Rexel Canada Electrical Inc. (“Jacmar”) to its customer (“Buyer”) of the hardware, software, and/or services (individually a “Product” and collectively “Products”) set forth and included in the applicable scope of work (the “Work”).

GENERAL

These Terms and Conditions along with the applicable scope of work, provided by Jacmar in this proposal (the “Agreement”) is the entire agreement of the parties, superseding any previous agreements and understandings, whether oral or written. In the event of any conflict between the applicable scope of Work and these Terms and Conditions, the provisions of the applicable scope of Work shall prevail. This Agreement exclusively will govern the sale and/or licensing by Jacmar of the Work and any other Products furnished under this Agreement. No addition or modification to this Agreement will be binding unless mutually agreed to in writing. Each party rejects any other terms and conditions that are in addition to or not consistent with this Agreement that may be proposed by the other party or that appear or are referenced in Buyer’s purchase order or other requisition or in Jacmar’s invoice.

PRICE

As provided in the applicable scope of work exclusive of applicable taxes and duties unless otherwise specified.

PAYMENT

Net thirty (30) days from date of the invoice issued, or in accordance with the Pricing and Payment Schedule, if applicable, that is set forth in the applicable scope of work.

DELIVERY

Ex Works Jacmar’s facility or warehouse (per current Incoterms) or as otherwise specified in the applicable scope of work (Delivery). Shipping dates are approximate only and Jacmar assumes no responsibility for delays.  In all cases, title transfers to Buyer upon full payment for the Work by the Buyer of the Work, except that title to all intellectual property rights associated with the Work remains with Jacmar or its suppliers and licensors. However, such Products shall be entirely at Buyer’s risk from the time placed on a common carrier.

ACCEPTANCE

Acceptance of the Work occurs either (i) on the date the Work conforms to acceptance criteria in the applicable  scope of Work or is otherwise beneficially used by Buyer, but in no event later than thirty (30) days from start-up or five (5) five days following Delivery whichever occurs first; or (ii) if no acceptance criteria is specified in the applicable scope of Work then acceptance occurs upon Delivery.

Interim Approvals. Any Jacmar provided interim Work deliverable requiring Buyer approval pursuant to the applicable scope of Work will be deemed accepted if formal

Buyer approval, written or as otherwise required, is not received by Jacmar within two (2) calendar weeks after the date submitted.

CHANGES

Any change resulting from any of the following circumstances is subject to equitable adjustments to price, scheduling, and other affected terms and conditions:

Buyer requested order changes, including those affecting the identity, scope, and delivery of the Work or Products;

Concealed or otherwise unknown physical conditions differing materially from those indicated or anticipated in the applicable scope of work or that otherwise differ materially from those ordinarily found under similar circumstances;

Any delays caused by Buyer, its employees, affiliates, other contractors to Buyer, or any other party within Buyer’s reasonable control;

Any emergency endangering persons or property. In such circumstances, Jacmar may act at its discretion to prevent damage, injury, or loss;

(e) All changes, except actions necessitated by emergencies as provided in (d) above, must be executed by a written change order signed by both parties or otherwise definitively authorized by both parties. Jacmar will not begin work on a change until such change order is properly authorized. All claims relating to a change must be made within a reasonable time after the occurrence giving rise to the claim. If the parties cannot agree on a change in pricing or schedule, it will be resolved pursuant to Section 26, Disputes.

(f) Jacmar reserves the right to substitute using the latest superseding revision or series or equivalent Product having comparable form, fit, and function, and such substitutions shall not be considered changes subject to the other terms of this section.

RETURNS

All returns of Products will be pursuant to Jacmar’s instructions.

DEFAULT, DELAYS, AND TERMINATION

Default by Jacmar. If Jacmar is in material default of its obligations in the Agreement, Buyer shall give Jacmar written notice, and Jacmar shall have five (5) business days to begin action and ninety (90) days (or longer if agreed to in writing) to cure the default. If Jacmar fails to cure the default, Buyer may terminate this Agreement to the extent that Jacmar is in default. Jacmar’s liability shall be limited to (a) the proportionate price of the terminated portion of the Work and (b) any documented direct excess re-procurement costs incurred by Buyer to complete the Work to a capability not exceeding that provided in the applicable scope of Work, but Jacmar’s liability for documented direct excess re-procurement costs shall be limited to one hundred percent (100%) of any amounts paid for the terminated portion of the Work.

Convenience of Buyer. Except as set forth in the applicable scope of work, Buyer may terminate this Agreement for convenience prior to shipment by giving thirty (30)-day written notice to Jacmar. Buyer shall pay for any Work performed before receipt of notice and any additional costs of termination (including third-party commitments, reasonable profit, and overhead as may be more specifically provided in the applicable scope of work).

Delays or Default by Buyer. If Buyer, its employees, affiliates, other contractors to Buyer, or any other party within Buyer’s reasonable control causes the delivery, installation, or acceptance of the Work to be delayed beyond the time period set forth in the applicable scope of work, or if Buyer materially fails to fulfill any condition of the terms of this Agreement, Jacmar may elect to (a) withhold deliveries and suspend Work, or (b) place the Products in storage at Buyer’s risk and cost. If such delay or other non-fulfillment is not rectified by Buyer within a reasonable time upon notice, Jacmarmay terminate this Agreement, and Buyer shall pay all costs of termination (including third-party commitments, reasonable profit, and overhead).

Temporary Suspension of Work by Buyer. Except as set forth in the applicable scope of work, Buyer may, by providing prior written notice, request that Jacmar temporarily suspend performance and delivery of the Work, in whole or in part. The notice shall specify the portion of the Work to be suspended, the effective date of suspension, Buyer’s anticipated duration of suspension, and the reasons for the suspension. Jacmar shall suspend Work as requested, except as necessary for the care or preservation of Work previously executed. On or before the date the suspension begins, Buyer must pay Jacmar the unpaid balance of the portion of the Work previously executed plus any additional costs incurred by Jacmar as a result of the suspension. Jacmar shall resume the suspended Work after a change order is executed covering adjustments to the price, schedule, and any other affected terms or conditions resulting from the suspension. Unless otherwise agreed, the maximum cumulative period for suspension is sixty (60) days. Upon expiration of this or any shorter period agreed upon as provided above, Jacmar may terminate this Agreement, and Buyer shall pay all costs of cancellation (including third-party commitments, reasonable profit, and overhead).

FORCE MAJEURE

Neither party will be liable for any loss, damage or delay arising out of its failure (or that of its subcontractors) to perform due to causes beyond its reasonable control, including without limitation, acts of God, acts of civil or military authority, fires, strikes, floods, epidemics, quarantine restrictions, war, riots, acts of terrorism, delays in transportation, or transportation embargoes. In the event of such delay, performance date(s) will be extended as reasonably necessary to compensate for the delay.

SOFTWARE LICENSES AND OWNERSHIP.  This Section shall only apply if software is identified as a specific deliverable in an applicable scope of work.

Standard Software. Software comprised of firmware or standard software (including, but not limited to packaged software, Jacmar’s or its suppliers’ preexisting templates, models and library files, and commercially available software) (collectively “Standard Software”) is subject to Buyer’s acceptance of additional terms and conditions set forth in separate Jacmar or third-party click-wrap license agreements provided with such Standard Software. Such terms and conditions shall be the exclusive terms and conditions applicable to such Standard Software, excluding Buyer’s obligation to pay any license fee which shall be identified in the applicable scope of work.

Documentation and Application Software. Jacmar hereby grants to Buyer a non-exclusive, non-transferable license to modify and use solely in conjunction with the Work all documentation and any Application Software created by Jacmar or the manufacturer as specified in the applicable scope of Work. Application Software includes application project files for control programming, design, configuration, and visualization in source code and/or scripting code created by Jacmar or the manufacturer under the Agreement for operational use with the Standard Software or the Buyer’s system as specified in the Statement of Work. Buyer is solely responsible for its modifications to documentation and Application Software. Except for any Buyer or third-party confidential information, Jacmar retains all right, title, and interest to documentation and Application Software developed by Jacmar. Buyer shall not sublicense or assign the documentation or the Application Software except to a customer who purchases the Work from Buyer. Buyer may make an additional archival copy of such documentation and Application Software for backup.

In the absence of a separate Jacmar or manufacturer license agreement for software provided by Jacmar or such manufacturer  under a Statement of Work, Jacmar or manufacturer  hereby grants Buyer a non-exclusive, non-transferable license to use such software solely in conjunction with the Work for the project identified in the applicable scope of Work without the right to sublicense, disclose, disassemble, decompile, reverse engineer, or otherwise modify the software (except for modifications of Application Software as set forth above). Ownership of the respective Jacmar or third-party software shall remain with Jacmar or the third party.

Ownership of Pre-existing Intellectual Property. Each party shall own all right, title, and interest in all patents, trademarks, copyrights, confidential information, trade secrets, mask rights, and other intellectual property rights as it owned on the date of this Agreement.

No Other Licenses. Except as expressly set forth in this Agreement, no license under any patents, trademarks, copyrights, confidential information, trade secrets, mask rights, or other intellectual property rights is granted or implied by either party.

WARRANTY.

Products Warranty: Jacmar will make available to Buyer all transferable warranties made to Jacmar by the manufacturer of the Products. Jacmar is a distributor and not the manufacturer of the Products sold under this Agreement and makes no warranty, indemnity or the like relative to such Products.  Jacmar’s obligation will be to pass through Buyer all available warranties provided by such manufacturer for the Products. Jacmar warrants to Buyer for the period of  twelve (12)  months from shipment, that the Products will be free of defects in material, fabrication, and workmanship provided that: (1) the operating conditions and use of the Products are in accordance with any standards set forth in the Statement of Work, manufacturer’s  published specifications, and applicable recommendations of Jacmar; and (2) the installation, adjustment, tuning, and start-up of the Products have been properly performed in accordance with the manufacturer’s published specifications and any applicable recommendations of Jacmar. Repaired or replacement Products provided pursuant to subparagraph (d) below are warranted for the remainder of the original warranty term, or for a longer period, in accordance with the manufacturer’s warranty.

Services Warranty: Jacmar warrants to Buyer for the period of thirty (30) days from the date services are provided that services shall be performed in a workmanlike manner conforming to standard industry practice.

Remedies: Remedies under this warranty will be limited to, at Jacmar’s discretion, replacement, repair, re-performance, modification, or issuance of a credit for the purchase price of the Products involved, but only after Jacmar’s receipt of Buyer’s written notification of non-conforming Products or Work and the return of such Products pursuant to Jacmar’s instructions. Replacement Products, at Jacmar’s discretion, may be new, remanufactured, refurbished, or reconditioned. If the repair, re-performance, or replacement does not cure the defective performance, Buyer may request emergency on-site service, which will be at Jacmar’s expense (consisting of time, travel, and expenses incurred by Jacmar related to such services). If the defective performance is not due to warranted defects in the Work or Products, the on-site service will be at Buyer’s expense. On- site warranty services performed at Jacmar’s expense shall not include removal or reinstallation costs related to large-scale assemblies such as motors or transformers. The foregoing will be the exclusive remedies for any breach of warranty or breach of contract arising from warranted defects.

General: Warranty satisfaction is available only if (a) Jacmar is provided prompt written notice of the warranty claim, and (b) Jacmar’s examination discloses that any alleged defect has not been caused by misuse, neglect, improper installation, operation, maintenance, repair, alteration, or modification by other than Jacmar, accident, or unusual deterioration or degradation of the Products or Work or parts thereof due to physical environment or electrical or electromagnetic noise environment.

THE ABOVE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESSED; IMPLIED OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE.

INTELLECTUAL PROPERTY INDEMNITY. Jacmar or manufacturers  will pay costs and damages finally awarded in any suit against Buyer to the extent based on a finding that the design or construction of any Work or Products as furnished,  infringe any patent, utility model, copyright, or trademark granted or registered in the country of Jacmar’s shipping destination, provided that, Buyer: (i) promptly informs Jacmar of the alleged infringement in writing; (ii) provides Jacmar the exclusive right to defend and settle the suit, at Jacmar’s expense; and, (iii) provides all reasonable information and assistance requested for the defense.  Jacmar shall have no liability for any infringement that is based upon or arises out of: (a) compliance with Buyer’s instructions, specifications or designs; (b) use of Work or Products in a Buyer or third-party process; or (c) combinations with other equipment, software or materials not supplied by Jacmar. The foregoing states the sole and exclusive obligations of Jacmar and the manufacturers for intellectual property infringement.

GENERAL INDEMNITY

Jacmar agrees to indemnify the Buyer from any suit or proceeding by third parties (which are not Jacmar employees) for damage to third-party tangible property and for bodily injury to the extent directly caused by Jacmar’s negligence in the performance of this Agreement. This indemnity is contingent upon Buyer giving Jacmar prompt notice of any such suit or proceeding and all necessary information and assistance so that Jacmar may defend or settle such claim and provided Buyer does not take any adverse position in connection with such claim. If any such damage or injury is caused by the joint or concurrent negligence of Jacmar and Buyer, or any agent, subcontractor, or supplier to Buyer, each party shall pay for its own defense, and the liability of each party shall be borne in proportion to the party’s negligence.

DISCLAIMER AND LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY BUSINESS INTERRUPTION OR LOSS OF PROFIT, REVENUE, MATERIALS, ANTICIPATED SAVINGS, DATA, CONTRACT, GOODWILL, OR THE LIKE (WHETHER DIRECT OR INDIRECT IN NATURE) OR FOR ANY OTHER FORM OF INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY KIND. EACH PARTY’S MAXIMUM CUMULATIVE LIABILITY RELATIVE TO ALL OTHER CLAIMS AND LIABILITIES, INCLUDING OBLIGATIONS UNDER ANY INDEMNITY, WHETHER OR NOT INSURED, WILL NOT EXCEED THE LESSER OF $1,000,000 OR THE COST OF THE WORK. JACMAR DISCLAIMS ALL LIABILITY RELATIVE TO GRATUITOUS INFORMATION OR ASSISTANCE PROVIDED BY BUT NOT REQUIRED OF JACMAR BY THE STATEMENT OF WORK. ANY ACTION BY EITHER PARTY MUST BE BROUGHT WITHIN EIGHTEEN (18) MONTHS AFTER THE CAUSE OF ACTION ACCRUES. THESE DISCLAIMERS AND LIMITATIONS OF LIABILITY WILL APPLY REGARDLESS OF ANY OTHER CONTRARY PROVISION AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTY OR CONDITION OR EXCLUSION OF DAMAGES IS SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION. THIS PROVISION EXTENDS TO THE BENEFIT OF JACMAR’S PARENT, SUBSIDIARIES, AFFILIATES, VENDORS (INCLUDING ROCKWELL AUTOMATION, INC.), AND OTHER AUTHORIZED RESELLERS AS THIRD-PARTY BENEFICIARIES.

BUYER SPECIFICATION.

Unless otherwise specified in the applicable scope of work, Jacmar does not warrant or indemnify and will not otherwise be liable for (i) design, materials, or construction criteria furnished or specified by Buyer and incorporated into the Work or Products, (ii) products supplied by, made by or sourced from Buyer or other manufacturers or vendors specified by Buyer; or (iii) commercially available computer software, hardware, and electrical components. (Such Buyer supplied/specified products shall include but not be limited to any identified in the applicable scope of Work.) Any warranty or indemnity applicable to such Buyer supplied/specified products will be limited solely to the warranty or indemnity, if any, extended by the original manufacturer or vendor other than Jacmar to the extent permissible thereunder.

RoHS: Buyer supplied/specified products will meet all applicable material restrictions as defined in RoHS. If it does not, Buyer will notify Jacmar prior to shipment of the Buyer supplied/specified products to Jacmar.  Buyer will indemnify Jacmar against any claim arising out of Jacmar’s use of Buyer supplied/specified products.

INSURANCE

During the term of this Agreement, Jacmar shall maintain, at its sole expense, the following minimum insurance coverages:

Workers’ Compensation: statutory in accordance with applicable law;

Contingent Employer’s Liability: $1,000,000 per accident, per employee, per disease;

Commercial General Liability: $2,000,000 per occurrence single limit of liability, $2,000,000 general aggregate that shall include but not be limited to contractual liability, premises liability, advertising liability, and product liability; and

Commercial Automobile Liability: $2,000,000 per occurrence combined single limit of liability, covering all owned, leased, and non-owned vehicles.

Professional Liability: $1,000,000 per occurrence, $1,000,000 general aggregate.

BUYER INFORMATION.

Buyer represents and warrants that it has the rights to the information provided or made available by Buyer to Jacmar, including but not limited to technical specifications, drawings, source code, application code, communication interfaces, protocols, and all other documentation (collectively “Buyer Information”), for Jacmar to perform its obligations under this Agreement and that such access to and use of Buyer Information under this Agreement will not infringe or violate any agreement, confidentiality obligations, copyrights, or other intellectual property rights of the original vendor or any other third party. Buyer agrees to indemnify Jacmar from any claims arising out of Jacmar’s use of Buyer Information pursuant to the Statement of work.

In Jacmar’s performance of services, sales activities, or in connection with Buyer’s use of Jacmar Products, Jacmar may obtain, receive, or collect data or information, including Buyer’s contract information, computer system profile, Jacmar Product installation data, and Buyer’s usage specific data of Jacmar Products (collectively, the “Data“). In such cases, Buyer grants Jacmar and its suppliers a non-exclusive, worldwide, royalty-free, perpetual, non-revocable license to use, compile, distribute, display, store, process, reproduce, or create derivative works of the Data solely to facilitate the performance of sales and services by Jacmar and its affiliates (including, but not limited to, quality, safety, energy, and security analytics, product and service diagnostics and prognostics, and reporting), and to facilitate or improve Buyer’s use of the Products. In addition, Buyer grants Jacmar and its affiliates a license to use and aggregate the Data in support of Jacmar’s marketing and sales activities. Jacmar and its affiliates may also use this information in the aggregate, in a form which does not personally identify Buyer, to improve Products and Jacmar may share anonymous aggregate data with our third party suppliers and service providers.

SAFETY AND STANDARDS.

Jacmar is responsible for compliance of the Work with laws, regulations, and standards, including safety regulations and standards, of the country where the Work will be located that are applicable to the Work at the effective date of this Agreement.

Buyer must inform Jacmar of any other laws, regulations, or standards that may apply to the Work. Jacmar will be responsible for compliance with such other safety or other standards only if documented in the applicable scope of Work.

Jacmar is not responsible for laws, regulations, or standards that apply to Buyer’s (or end user’s, if different from Buyer) facility, equipment, process, information system, or data.

SITE RULES, LICENSES, PERMITS, SITE PREPARATION.

Jacmar agrees to comply with all applicable posted site rules of Buyer (unless inconsistent with the obligations set forth in the applicable scope of Work) and any additional Buyer’s site rules that have been incorporated into the applicable scope of Work.

Buyer is responsible for:

all licenses, permits, clearances, and site access rights;

all sites being ready and equipped with all necessary Buyer furnished equipment and facilities;

the sites, including any required Buyer fixtures or facilities being safe, hazard free; structurally sound, and sufficient;

reasonable access to the worksite;

properly using, calibrating operating, monitoring and maintaining the Work consistent with all Jacmar or third-party provided instructions, warnings, recommendations and documentation;

all other factors affecting the Work that are outside of the direct control of Jacmar; and

indemnifying Jacmar for any claims to the extent directly caused by Buyer’s breach of the obligations listed in this section 19(b) above.

GOVERNMENT CONTRACTS AND CLAUSES. No governmental contract clause, specification or regulation shall apply to the Work, the Products or this Agreement except to the extent agreed to in writing by Jacmar.

EXPORT CONTROL. Products and associated materials supplied or licensed hereunder may be subject to various export laws and regulations. It is the responsibility of the exporter to comply with all such laws and regulations.  Notwithstanding any other provision to the contrary, if Canadian or provincial laws require export authorization for the export or re-export of any Product or associated technology, no delivery can be made until such export authorization is obtained, regardless of any otherwise promised delivery date, and Jacmar will be relieved of any obligation relative to the delivery of the Product(s) or Work subject to such delayed authorization without liability of any kind to Buyer or any other party. Further, if any required export authorization is denied, Jacmar will be relieved of any further obligation relative to the sale and/or license and delivery of the Product(s) or Work subject to such denial without liability of any kind to Buyer or any other party. Jacmar will not comply with boycott related requests except to the extent permitted by Canadian law and then only at Jacmar’s discretion.

ASSIGNMENT. This Agreement may not be assigned in whole or in part by either party without the written consent of the other party. However, consent will not be required for internal transfers and assignments between party and its parent, subsidiaries or affiliates in connection with a consolidation, merger or any other form of corporate reorganization.

INDEPENDENT CONTRACTORS. The parties at all times will be independent. Neither party is an employee, joint venturer, agent or partner of the other; neither party is authorized to assume or create any obligations or liabilities, express or implied, on behalf of, or in the name of the other. The employees, methods, facilities, and equipment of each party at all times will be under the exclusive direction and control of that party.

DISPUTES. THE PARTIES WILL ATTEMPT IN GOOD FAITH TO PROMPTLY RESOLVE ANY DISPUTE BY NEGOTIATIONS BETWEEN REPRESENTATIVES WHO HAVE AUTHORITY TO SETTLE THE DISPUTE. ANY DISPUTE NOT RESOLVED BY NEGOTIATION MAY THEN BE SUBMITTED TO A COURT OF COMPETENT JURISDICTION IN ACCORDANCE WITH THE TERMS PROVIDED IN THIS AGREEMENT. THESE PROCEDURES ARE THE EXCLUSIVE PROCEDURES FOR THE RESOLUTION OF DISPUTES BETWEEN THE PARTIES.

GOVERNING LAW AND FORUM. This Agreement and all disputes arising under it will be governed by and interpreted in accordance with the internal laws and will be subject to the exclusive jurisdiction of the courts of the Province where the Services are being provided and the laws of Canada applicable therein but specifically excluding the provisions of the 1980 UN Convention on Contracts for the International Sales of Goods.

CONFIDENTIALITY.

During the term of this Agreement and for a period of three years thereafter, each party will maintain in strict confidence all technical and business data and information disclosed by one party to the other that is marked “Confidential” and will not use or reveal such information without the prior written authorization of the other; provided that Jacmar may disclose, use and reveal any such data and information to its suppliers in the performance of or related to its obligations under this Agreement and such Jacmar suppliers may disclose, use and reveal such data and information in the performance of their obligations related to Jacmar’s obligations under this Agreement.

“Recipient” and “Discloser” shall refer to Buyer and Jacmar in their respective roles as both recipient and discloser of Confidential Information under this Agreement.

The obligations of confidentiality and non-use will not apply to information (i) that is published or becomes part of the public domain other than by means of a breach of this Agreement; (ii) that the Recipient can prove by written documentation was known to it prior to disclosure by the Discloser; (iii) that the Recipient subsequently rightfully receives from a third party without an obligation of confidentiality; (iv) that the Discloser discloses to a third party on a non-confidential basis; or (v) that was independently developed by the Recipient.

The Recipient shall not use or disclose any Confidential information, except as expressly authorized by this Agreement, and shall protect all such Confidential information using the same degree of care which Recipient uses with respect to its own similar proprietary information, but in no event with safeguards less than a reasonably prudent business would exercise under similar circumstances. Recipient shall take prompt and appropriate action to prevent unauthorized use or disclosure of the Confidential Information.

If any Confidential information must be disclosed to any third party by reason of legal, accounting or regulatory requirements beyond the reasonable control of the Recipient, the Recipient shall promptly notify the Discloser of the order or request and permit the Discloser (at its own expense) to seek an appropriate protective order.

SEVERABILITY

If any provision of this Agreement is held to be unenforceable by law, the remainder of the Agreement shall remain in full force and effect. Delay or failure to enforce any right or remedy under this Agreement shall not prejudice or waive such right or remedy.

COUNTERPARTS

This Agreement may be executed in multiple counterparts.

NOTICE

Written notice shall be deemed to have been given under this Agreement on the date the party notified personally delivers such notice to the other party or sends notice to the other party by certified or registered mail or facsimile, addressed to the addresses and telephone numbers set forth in this Agreement, unless written notice of change of address has been given in accordance with this clause.

LANGUAGE

The parties acknowledge that they have required that the agreement evidenced hereby be drawn up in English. Les parties reconnaissent avoir exigé la rédaction en anglais du Contrat. In the event of a conflict between the English and other language versions, the English version will prevail.