SCHEDULE “A” TERMS AND CONDITIONS OF PURCHASE ORDER

1. These terms and conditions form part of the contract between the customer ( “Customer”) and the supplier (the “Supplier”). 

2. Supplier is to supply all work, services, products, materials, project documentation, shop drawings, samples and other items as set out in the Purchase Order (collectively, the “Products”). 

3. Supplier is to ensure that it has received a copy of all applicable plans, reports, specifications, prime contract (as applicable) and all addendum for the Products (collectively, the “Plans”). This Purchase Order will bind Supplier to meet and satisfy the requirements of the Plans unless otherwise stated. Supplier is to comply with all requirements for the packaging and location of delivery for the Products. The contents of each Products shall be clearly identified on the face of any crate, skid or package. 

4. Supplier shall strictly comply with any schedule for the Project or any other applicable schedules or deadlines for the Products as indicated on this Purchase Order, the Plans and/or the approved shop drawings (collectively, the Schedules). Supplier agrees time is of the essence for this Purchase Order. Supplier shall immediately notify Customer if the Products or parts thereof are delayed beyond the Schedule or any milestone or delivery date, within three days of the delay occurrence. Supplier shall take all reasonable steps to mitigate any delays at its own costs, including overtime and acceleration and shall provide a recover plan and schedule to the Customer. The Supplier shall be held liable for any loss or damage arising from any delay and/or non delivery including, but not limited to, actual, consequential and/or liquidated damages incurred by the Customer. For clarity, the Customer shall not be liable to Supplier for any delays, price fluctuations or increases or storage fees, whether such delays, price fluctuations or storage fees are beyond the control of the Supplier or not (due to pandemics, epidemics or supply chain shortages or otherwise).   

5. Title for, and risk of loss of, Products will remain the sole responsibility of the Supplier until the Products are received and accepted by the Customer in accordance the terms set out in this Purchase Order.  

6. Progress billings or applications for payment under this Purchase Order are to be made in a format agreeable to the Customer. Payment by the Customer shall not constitute an acceptance of the Products. The Customer shall have the right to set-off against any payments owed to the Supplier under this Purchase Order, any sums or credits owed by the Supplier or its affiliates to the Customer (including on other projects). 

7. The amounts set out in this Purchase Order are inclusive of all labour, materials and equipment of any kind to fully provide the Products (including any work, services or materials that are reasonably inferable to be provided according to the Laws, Plants and the intended use of the Products, whether expressly set out in this Purchase Order and the Plans or not). The cost of returnable packaging for the Products, will be the responsibility and cost of the Supplier, if applicable. 

8. Customer reserves the right to make changes to this Purchase Order including changes to the Plans, Products, method of shipment or packing, place or time of inspection, and delivery or acceptance of goods or services by giving reasonable notice to the Supplier (collectively, “Changes”). If Changes affect the cost of, or the time required for, performance of this Purchase Order, the Supplier must provide written notification of the same to the Customer within 5 business days of the date of the Change along with substantiation and document to support the same. In the event such sufficient notice is not provided within the 5 business days, the Supplier forever waives, is barred from, and gives up, any claim to additional compensation or time. In the event that a claim is made by the Supplier on account of a Change in accordance with this paragraph, the Supplier shall be entitled to an adjustment of the price for the actual and direct costs it incurs as a result of the Change and the time extended as a direct result of the Change. Nothing in this Article excuses the Supplier from delivering the goods and/or services described in the Purchase Order.   

9. All project closeout documentation, i.e.: maintenance manual insertions and other items required by this Purchase Order and the Plans, must be received by Customer’s office prior to the release of any holdback funds, to the extent applicable. 

10. In the event that any of the Products are rejected due to: (i) the failure of the Products to conform to applicable laws, regulations, rules, the Plans or any other requirements communicated by Customer to Supplier; or (ii) any defect, Customer will be entitled to request that such defects be remedied promptly. If the defaults cannot be remedied, the Customer shall be entitled to a refund. 

11. Without restricting any warranty stipulated or implied by applicable Laws and the Plans, Supplier warrants to Customer that the Products and any other services or materials provided under this Purchase Order, shall be free from defects in materials, workmanship, design and fit for the intended use for the Project in accordance with the duration of such warranties set out in the Plans. The Products shall be free from any liens or encumbrances. If no warranty is specified in the Plans, the warranty period will be no less than 1 year from the date the Products are delivered to the Customer. The Supplier shall provide a warranty for the Products in favour of any entity that the Customer may direct. 

12. If Supplier should neglect to prosecute its work properly, or otherwise fail to comply with the requirements of this Purchase Order (including not strictly complying with the Schedule or taking reasonable steps to mitigate any delays), the Customer may notify Supplier in writing that it is in default of its obligations and instruct it to correct the default within three days of the receipt of such notice or, where immediate action is required, in such lesser time as may be specified in the notice. If Supplier fails to correct the default, the Customer may, without prejudice to any other right or remedy it may have, correct such default and deduct the cost thereof from any amounts owed to Supplier or terminate this Purchase Order.   

13. The Customer may be entitled to terminate this Purchase Order immediately upon written notice in the event that the Supplier becomes insolvent, bankrupt, institutes any form of insolvency process, is grossly negligent or commits acts of fraud, dishonesty or deceit or commits acts that endanger the life and safety of any persons involved with the Project. In which case the Customer shall be entitled to all of its damages and costs against the Supplier, including its legal fees on a full indemnity basis. 

14. Supplier shall indemnify and save Customer and its directors, officers, agents, employees and Customers harmless from all costs, fees expenses, liabilities, debts, demands or damages whatsoever for which they may suffer arising out of a breach by Supplier (or its employees, directors, officers subcontractors, consultants, agents and affiliates) of this Purchase Order, delays in delivery of the Products, a defect in the manufacture of the Products, an infringement of trade mark or any claims by third parties relating to defects in the manufacture of the Products. 

15. In no event shall Customer be liable to Supplier for any delays, special, incidental, indirect, consequential or punitive damages, including but not limited to lost profits, lost business revenue, damages resulting from loss of data or loss of or damages claimed against Supplier by any other person, arising under any circumstance. In addition, in no circumstances shall Customer be liable to Supplier for more than the balance of the amount owed under this Purchase Order. The foregoing limitations of liability shall apply regardless of the form of action, whether in contract, negligence, strict liability, other tort or otherwise. Any action against Customer must be brought within twelve (12) months after the cause of action arises. Customer shall further not be liable for any lost or stolen Products that have not been accepted into Customer’s possession or have not been properly cared for or protected by Supplier through reasonable diligence. Notwithstanding anything herein, Customer shall only be liable for simple interest at the Courts of Justice Act rate on any amounts that may be found to be owing by Customer to Supplier. 

16. This Purchase Order, the Plans, and documents referred therein, constitutes the entire agreement between Customer and Supplier and supersedes all prior negotiations, representations, or agreements, either written or oral, relating in any manner including any bid documents or quotes. 

17. This Purchase Order shall be governed by the laws of the Province of Ontario and shall enure to the benefit of and be binding upon the parties hereto, their respective heirs, legal representatives, successors, and permitted assigns. All disputes must be resolved in the Ontario Superior Court of Justice in Toronto and the parties irrevocably consent and attorn to that jurisdiction. Each of the provisions of this Purchase Order is severable from every other provision hereof.  

18. No amounts will be paid in addition to this Purchase Order unless written approval is provided by Customer for those amounts prior to any additional supplies or work being provided. 

19. In the event the project is delayed, put on hold or otherwise terminated for any reason by Customer or the Owner, Customer shall have the right to terminate the Purchase Order at no cost other than the value of Products delivered to the project to the date of termination. Without limiting the generality of the foregoing, if there is any labour dispute that adversely impacts the subject project in whole or in part Customer may, at its option, terminate or cancel the Purchase Order on 72 hours notice, in which event Customer shall be responsible only for payment for Products delivered to the project to the date of termination. 
20. Prior to the release of any payment to Supplier and if requested, Supplier must provide Customer with a current Insurance Certificate for commercial general liability coverage protecting the Customer or any of their respective agents, servants and employees, against liability for injury to persons or damage to property of others arising out of or relating to its materials and/or services provided and maintain such coverage for the duration of the project at its own costs, with limits of not less than $5,000,000 per occurrence. If Supplier is responsible to deliver the purchased product “FOB Customer Warehouse” or other similar terms of sale, Motor Truck Cargo Insurance for the full invoice value of this Purchase Order inclusive of all freight, duty and customs charges on a “warehouse to warehouse” basis up to and including unloading at the destination specified in this Purchase Order, as well as Business Auto Liability insurance with limits of at least $2,000,000.00 per occurrence and which must include coverage for liability arising out of all owned, leased, hired and non-owned automobiles.  Insurance shall be underwritten on an “All Risk” or “Special” basis of coverage and be provided by insurance companies licensed to do business in the Province of Ontario. Customer does not represent that the policies described above will be sufficient to protect Supplier against all of their responsibilities under this Purchase Order. Supplier may purchase and obtain such additional insurance as they may consider necessary to protect its business operations. Customer shall be given additional insured status with respects to the above coverages.