Yara Canada General Terms and Conditions of Purchase
1.1 The following definitions shall apply for these General Terms and Conditions of Purchase:
- “Agreement” shall mean the purchase agreement and/or Buyer’s purchase order(s), these General Terms and Conditions of Purchase and any other appendices, and agreed amendments or variations to said documents, as a whole.
- “Buyer” shall mean the entity identified in the Agreement as the buyer of the Deliverables.
- “Chemical Laws” shall mean all applicable legislation pertaining to the registration, evaluation, authorization, restriction, manufacture and import of the Deliverables, or any component thereof.
- “Claims” shall mean any claim, demand, action, cause of action, suit or proceeding which is attributable to bodily injury, sickness, disease or death or to damage to or destruction of tangible property.
- “Close Relative” shall mean an individual’s spouse/partner, the individual’s and the spouse/partner’s grandparents, parents, siblings, children, nieces, nephews, aunts, uncles, and the spouse of any of these people.
- “CLP Laws” shall mean all applicable legislation pertaining to the classification, labeling and packaging of any Deliverables, or any component thereof.
- “Confidential Information” shall mean all documents, data, information and other material of a confidential or proprietary nature related to the business or affairs of a party, including but not limited to information relating to a party’s operations, processes, plans, product information, Intellectual Property Rights, trade secrets, software, market opportunities and customers.
- “Control” or “Controlling” shall mean the ability to direct the affairs of another person, whether by virtue of the ownership of shares, contract or otherwise.
- “Deliverables” shall mean all goods, services, works, documents, certificates and packaging, as appropriate, to be delivered by Supplier pursuant to the Agreement.
- “Force Majeure” shall mean any one of the following events, provided that the occurrence or effects of such event could not have been avoided, prevented or mitigated against by the Contractor exercising reasonable care and diligence or by Supplier making commercially reasonable alternative arrangements: (a) acts of God including tornados, earthquakes, landslides, floods, washouts, and fires; (b) strikes or other labour disturbances which are the result or part of a general industry labour strike or disturbance; (c) acts of terrorism, sabotage, war, insurrections, vandalism or riots; (d) restraints by governments or governmental agencies; (e) the order of any court or the directive or ruling of any governmental or administrative body; (f) accidents in transporting the Deliverables to the Buyer’s site; or (g) any other similar cause beyond the reasonable control of the Contractor.
- "GST" means the goods and services tax as provided for in the Excise Tax Act (Canada), or any successor or replacement Laws.
- “HESQ” shall mean health, environment, occupational and process safety, security, product stewardship and chemical compliance, emergency response and quality management.
- “Intellectual Property Rights” shall mean, without limitation, patent rights, registered and unregistered designs, copyright, trademarks, trade names, technical know-how and advice and all other Intellectual Property Rights of any kind wherever and however in the world enforceable.
- “Losses” shall mean all direct losses, claims, charges, costs, liabilities, penalties, fines and expenses (including, without limitation, damages, legal and other professional fees and costs, and the cost of pursuing any insurance providers).
- “Payment Legislation” means the prompt payment and adjudication provisions of The Builders’ Lien Act (Saskatchewan).
- “Personal Information” shall mean any information relating to an identifiable individual, or as otherwise defined in applicable privacy legislation.
- “Personal Information Breach” shall mean the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Information.
- "PST" means the tax payable under The Provincial Sales Tax Act (Saskatchewan).
- “Public Official” shall mean anyone employed by or acting on behalf of, whether on a full or part time basis, a national, provincial, state, territorial, regional or local government; government owned or controlled company or other entity; employees or agents of public international organizations (such as the United Nations, European Union, World Bank and other international development organizations); political parties, political party officials and candidates for public office; and anyone else acting in an official capacity for or on behalf of a government agency or entity, including persons holding a legislative, administrative or judicial post and members of the military and police.
- “Sanctioning Body” shall mean any of the following: (i) the United Nations Security Council; (ii) the European Union; (iii) the Office of Foreign Assets Control of the Department of Treasury of the United States of America; (iv) Global Affairs Canada; and (v) any Competent Authority for administering Sanctions in the country which is the domicile of the Supplier or its ultimate holding company, or the Buyer.
- “Sanctions” shall mean economic or financial sanctions, trade embargoes and restrictions relating to terrorism imposed, administered or enforced by a Sanctioning Body from time to time.
- “Sanctions Event” shall mean the events listed in condition 25.1.
- “Sanctions List” shall mean any list of specifically designated nationals or blocked or sanctioned persons or entities (or similar) imposed, administered or enforced by a Sanctioning Body in connection with Sanctions from time to time.
- “Supplier” shall mean the entity that is the counterparty of the Buyer according to the Agreement.
- “Yara Group” shall mean Yara International ASA and/or any other entities which it directly or indirectly Controls, including, without limitation, Yara Belle Plaine Inc. and Yara Canada Inc.
2.1 These General Terms and Conditions of Purchase shall apply to the Agreement to the exclusion of any other terms that i) the Supplier seeks to impose or incorporate, whether contained in any printed form of Supplier, on Supplier’s internet site, attached to an invoice, or contained in a proposal, report, or acknowledgment, and Supplier agrees to fully waive them; or ii) are implied by trade, custom, practice or course of dealing, unless acceptance is explicitly confirmed in writing by the Buyer. Receipt of any Deliverables shall not be deemed as such acceptance.
2.2 In the event of any conflict between the provisions of the Agreement, the various agreement documents shall be given priority in the following order: (i) the purchase agreement; (ii) Buyer’s purchase order(s); (iii) these General Terms and Conditions of Purchase; and (iv) all other appendices to the Agreement.
3 GENERAL OBLIGATIONS OF SUPPLIER
3.1 Supplier shall without undue delay prepare and provide offer documentation and order confirmations free of charge, and any deviations from Buyer’s orders/requests shall be expressly specified. Delivery by Supplier of the Deliverables ordered hereunder or the commencement of performance by Supplier of its obligations shall be deemed an acceptance by the Supplier of the Agreement, including, without limitation, these General Terms and Conditions of Purchase.
3.2 Buyer will normally provide a purchase order to Supplier in respect of the Agreement. If such purchase order has not been received by Supplier before delivery or performance of the Deliverables, Supplier shall request that Buyer provides such purchase order.
3.3 The Deliverables shall be properly labeled and packaged according to the nature of the Deliverables and according to Buyer’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Deliverables are delivered in undamaged condition. The agreement and purchase order numbers and other agreed references shall be quoted on the accompanying packing slip.
4.1 The Supplier shall, without limiting its obligations or liabilities under the Agreement, maintain and keep in force, at its own expense, the following insurance policies with limits not less than those stated below:
- commercial General Liability Insurance:
(i) with a limit of not less than $5,000,000 for each occurrence, if the Supplier will be attending the Buyer’s site to perform services, covering all amounts that the Supplier becomes legally obligated to pay as damages arising from bodily injury, death, and property damage and including product liability coverage;
(ii) with a limit of not less than $2,000,000 for each occurrence, if the Supplier will not be attending the Buyer’s site to perform services, covering all amounts that the Supplier becomes legally obligated to pay as damages arising from bodily injury, death, and property damage and including product liability coverage
- if the Supplier will be attending the Buyer’s site to perform services, automobile Liability Insurance covering owned, non-owned and hired vehicles, with a limit of not less than $2,000,000 for each occurrence of bodily injury, death, and property damage;
- if the Supplier will be attending the Buyer’s site to perform services, employer’s Liability Insurance with a voluntary compensation endorsement, in the amount of $2,000,000 for each employee providing work in the jurisdiction of the Buyer’s location who is not covered by workers’ compensation coverage under the applicable Act in that jurisdiction; and
- any other insurance with the Supplier is required by any laws to provide, or otherwise required in the Agreement.
4.2 The Supplier’s insurance shall provide and maintain the insurance policies described in condition 4.1 in accordance with the following terms and conditions:
- the Supplier shall provide the Buyer with a certificate of insurance prior to commencement of work under this Agreement evidencing that the insurance required under condition 4.1 has been so obtained, with deductibles or self-insured retention satisfactory to the Buyer, and evidencing all applicable endorsements required pursuant to this condition 4.2;
- each insurance policy shall provide that 30 days prior written notice shall be given to the Buyer of any cancellation or material change of such policy;
- the Supplier shall ensure that the Buyer, its affiliates and their personnel are included as additional insureds for the Commercial General Liability Insurance, regarding the Contractor’s operations under this Agreement;
- each insurance policy shall specifically provide that the insurance is primary and non-contributing with any insurance carried by the Buyer or its affiliates;
- the Supplier shall make each insurance certificate available for inspection upon request by the Buyer;
- each insurance policy (excluding Automobile Liability Insurance) shall be endorsed to provide that the insurer will have no right against the Buyer, its affiliates or their personnel; and
- each insurance policy shall be maintained from the date of commencement of the Agreement until at least two years after delivery of the Deliverables.
4.3 None of the providing of insurance by the Supplier in accordance with the requirements of the Agreement, the insolvency or bankruptcy of any insurance company, or failure of any insurance company to pay any claim accruing, shall be a waiver of any other provisions of the Agreement with respect to liability of the Supplier to indemnify the Buyer or otherwise, unless otherwise stated in the Agreement.
4.4 The Supplier shall require all its subcontractors to obtain and keep in force insurance coverage equivalent to that required in condition 4.1, and in accordance with the terms and conditions set forth in condition 4.2. The Supplier shall be responsible for ensuring that subcontractors maintain such insurance during the course of the subcontractor’s performance of any work under the Agreement. The Buyer may in writing, reduce or waive all or any portion of such insurance requirements for subcontractors under circumstances where the work subcontracted does not warrant equivalent insurance coverage or it cannot be reasonably obtained, provided that such reduction or waiver shall in no way reduce or waive the Supplier’s responsibility or liability for work performed under the Agreement.
5.1 Buyer shall not be deemed to be the employer of Supplier or Supplier’s personnel, even if such personnel are to perform all or parts of the Deliverables at Buyer’s location(s), in cooperation with Buyer or otherwise.
5.2 If the Agreement appoints key personnel in Supplier’s organization, such personnel shall not be replaced without Buyer’s prior written approval. Such approval shall not be unreasonably withheld.
5.3 Supplier shall, at its own expense, immediately replace personnel who in Buyer’s sole opinion conduct themselves in an improper manner or are unsuitable to perform or produce the Deliverables.
6 INSTALLATION AND TESTS
6.1 The provisions of this condition 6 only apply if it has been agreed that the Deliverables shall include installation work, tests or other services to be carried out at Buyer’s premises.
6.2 Supplier shall prior to any work being performed request and familiarize itself with Buyer’s HESQ rules, and shall ensure that work at Buyer’s premises are carried out in compliance with any and all rules in force relating to HESQ.
6.3 Delivery occurs when the installation work and/or tests have been completed and Buyer has confirmed in writing that the Deliverables have been accepted. Such confirmation shall be given without undue delay.
6.4 Supplier shall in due time, however not later than one (1) week, before commencement of the installation work and/or tests provide a list of any goods and/or services which Buyer shall provide to assist in the installation according to the Agreement.
6.5 The contract price to be paid for the Deliverables includes costs of installation work and/or tests.
7 PROGRESS AND DELIVERY
- Supplier shall deliver and perform the Deliverables according to the agreed delivery date(s). If such delivery dates have not been agreed, Supplier shall deliver and perform the Deliverables within a reasonable time according to normal business practice.
- If Supplier should have cause to believe that it will be unable to meet the delivery date(s), Supplier shall immediately notify Buyer in writing stating the reason for the delay, the effect on the agreed delivery date(s) and furthermore include a proposal on how the delay can be minimized. Supplier will undertake to shorten or make up the delay by all means and shall bear its own costs incurred to minimize the delay, unless the delay is wholly caused by Buyer.
- In addition to liquidated damages, Supplier is liable for Losses suffered by Buyer which could have been avoided if Supplier had given notice of the delay in due time.
- Supplier shall in a reasonable time before delivery obtain delivery instructions from Buyer. As soon as possible and at the latest upon shipment, Supplier shall notify Buyer of the effected shipment so that, if required, the receipt of the Deliverables may be properly prepared.
- If the Deliverables include goods, delivery shall be deemed to have taken place when the Deliverables have been handed over to Buyer or delivered according to the agreed Incoterms, and agreed installation work and tests have been completed and accepted by Buyer (if applicable).
- If the Deliverables include work/services, Supplier shall notify Buyer in writing as soon as possible when Supplier considers the work/services provided as completed. Without undue delay after receiving such notice, Buyer shall in writing either accept the work/services as completed, or declare that the services are not accepted as completed and the reason for this. Delivery will not be deemed to have taken place before all Deliverables have been accepted in writing by Buyer.
8.1 Delay exists when Supplier or someone Supplier is responsible for fails to comply with the deadlines set out in condition 7.1(a), or it is evident that such failure will occur, unless the delay is documented as wholly caused by Buyer.
8.2 If the Deliverables are defective at delivery, Buyer may in its sole discretion elect to treat this as delay for the period the Deliverables may not be used for their intended purpose.
9 CHANGES TO THE DELIVERABLES
9.1 The provisions of this condition 9 shall only apply to the extent the Deliverables are manufactured especially for Buyer and for work mentioned in condition 6.
9.2 Buyer may at any time order changes with regard to the quality and/or the quantity of the Deliverables as well as the delivery date(s).
9.3 Supplier shall immediately notify Buyer in writing and request Buyer to issue a change order if Supplier is of the opinion that: (i) a change to the Agreement is required; or (ii) Buyer requests the performance of specific work which is not part of its obligations under the Agreement.
9.4 Any change order request shall be approved by Buyer by means of a written change order before Supplier initiates the change to the work (unless a delay will cause a disadvantage to the Deliverables or Buyer).
9.5 When Buyer requires a change, Supplier shall, without undue delay, submit a written confirmation describing the change work together with an estimate of any effects on the contract price, the work schedule and the agreed delivery date(s). If such confirmation is not received by Buyer within 30 calendar days after submission of the change order, Supplier may not claim any changes to the Agreement to its advantage.
9.6 Compensation for change work shall be in accordance with the prices, norms and rates contained in the Agreement, or otherwise in accordance with the original price level of the Agreement. If a change entails cost savings for Supplier, Buyer shall automatically be informed and credited accordingly, unless otherwise agreed.
9.7 If the parties disagree as to the amount to be added to or deducted from the contract price or any other consequences due to a change, Supplier shall upon receipt of a change order implement the change without awaiting the final outcome of the dispute. Undisputed amounts shall be paid by the Buyer as normal.
10 SUSPENSION OF WORK/SERVICES
10.1 Buyer may at any time and without cause temporarily suspend any work/services, or parts thereof, with immediate effect by written notification to Supplier. Following such notification Supplier shall, without undue delay, inform Buyer of the effects the suspension will have on the delivery and/or performance of the work/services. Supplier shall resume the work/services without undue delay after notification by Buyer.
10.2 If the suspension period exceeds 90 calendar days, Supplier is thereafter entitled to cancel the Agreement by a 14 calendar days’ written notice to Buyer.
10.3 During the suspension period, Buyer shall only: (i) pay for delivered or performed Deliverables; and (ii) compensate Supplier for direct, documented and necessary expenses incurred as a result of the suspension, such as expenses in connection with demobilization and mobilization of personnel.
11 CANCELLATION OF WORK/SERVICES
11.1 Buyer may at any time and without cause cancel any work/services, or parts thereof, with immediate effect by written notification to Supplier.
11.2 Following cancellation, Buyer shall only: (i) pay for delivered or performed Deliverables; and (ii) compensate Supplier for direct, documented and necessary expenses incurred as a result of the cancellation, such as expenses in connection with demobilization of personnel.
12 INSPECTIONS AND NOTICE OF DEFECTS
12.1 Neither Buyer’s inspection pursuant to condition 26.3 nor the fact that Supplier has sent drawings, goods or samples for Buyer’s inspection limits Supplier’s responsibility for ensuring that the Deliverables are in compliance with the contractual requirements.
12.2 Buyer may issue written notices of defect to Supplier pursuant to condition 12.4, if required. Buyer’s obligation to perform inspection of the Deliverables applies correspondingly where Supplier has performed rectification work.
12.3 Buyer is under no obligation to inspect or approve the Deliverables. If Supplier shall carry out installation work, the obligation to perform inspection does not arise until the Deliverables are ready for acceptance pursuant to condition 6.3.
12.4 Buyer shall issue a written notice of defect to Supplier within a reasonable time following discovery of any defect and its causes, and in no event later than the expiry of the agreed warranty period, or according to applicable local legislation, whichever is earlier. The same time limit applies in respect of any replaced or repaired parts, calculated from the time the replacement or repair took place. The time limit for making a notice of defect does not commence as long as the Deliverables may not be used for their intended purpose or rectification work or other activities necessary to comply with the contractual requirements are performed.
12.5 No review or approval made or given by or on behalf of the Buyer with respect to any Deliverables operates as: (i) acceptance of any part of the Deliverables; (ii) a waiver of any of the Buyer’s rights, remedies, powers or privileges under the Agreement; (iii) relief of any of the Supplier’s obligations under the Agreement; or (iv) a modification, release, waiver or termination of, or otherwise affects, the warranties, guarantees or obligations or any other covenant or undertaking of the Supplier, whether in contract or in tort.
13 PAYMENT TERMS AND PRICES
13.1 Supplier shall submit a final invoice within ninety (90) days after the Buyer has accepted the Deliverables as completed. The final invoice shall include all claims to be made by Supplier pursuant to the Agreement. Claims not included in the final invoice cannot be submitted later.
13.2 Unless otherwise specified in the Agreement, and subject to Payment Legislation (if applicable), payments will be made within 60 calendar days after receipt of invoice, subject to: (i) complete delivery of the Deliverables by Supplier; (ii) the invoice complying with Buyer’s policies; and (iii) receipt of any agreed bank guarantee or parent company guarantee (or similar) from Supplier.
13.3 The following shall be quoted on and/or attached to all invoices: (i) clear description of what the invoiced amount relates to; (ii) any agreement and purchase order numbers and other agreed references; (iii) all customs invoices and proofs of origin (if applicable); and (iv) any other requirements set out in the Agreement or relevant purchase order(s). Buyer is entitled to return invoices that do not meet these requirements.
13.4 If Buyer is to pay for the Deliverables based on time and/or quantities spent, Supplier shall ensure continuous registration by Supplier and approval by Buyer of such time and/or quantities. Details of the registered and approved time and/or quantities shall be attached to the relevant invoice.
13.5 The contract price is exclusive of GST and PST. Unless otherwise agreed, the agreed prices are fixed for the term of the Agreement and include all other costs related to handling, packaging, transportation and insurance, customs duties and applicable taxes. No increase in the price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer. Buyer does not accept and will not pay any additional invoice fees (or similar).
13.6 Buyer is entitled to deduct any prepayments and accrued liquidated damages (if any), as well as any other amounts owed by Supplier to Buyer, against Supplier’s invoices. Disputed or insufficiently documented amounts may either be withheld until resolved or set-off against Supplier’s invoices.
13.7 Supplier must submit to Buyer in writing any claims arising under the Agreement relating to billing or payment within sixty (60) calendar days after due date, and Supplier’s failure to do so will constitute a waiver by Supplier of any legal or equitable rights with respect to the subject matter of the claim.
13.8 Buyer is entitled to audit at Supplier’s premises all payments for reimbursable work for up to two years after receipt of the final invoice. Such audits shall be carried out by an independent third party that has undertaken customary confidentiality undertakings. In the event an audit indicates inaccuracies, overbilling, or other violation of the Agreement by Supplier resulting in a cost to Buyer, in addition to Buyer’s right to recovery of such costs, Supplier will be responsible for the reasonable costs associated with such audit.
13.9 Buyer may withhold, set-off or deduct from any amount otherwise due to the Supplier on any application for payment (including any application for release of holdback) or make demand under any security available, any amount that is reasonably necessary to reimburse, indemnify or protect the Buyer from any loss or damage resulting from or attributable to the Supplier’s breach of the Agreement, or to reimburse the Buyer for any amounts otherwise due and payable by the Supplier to the Buyer under or arising from the Agreement.
14.1 Supplier is responsible for the collection and reporting of all applicable transaction taxes, such as sales, use, withholding, value added, or similar taxes, and will remit such taxes to the appropriate taxing jurisdiction. Transaction taxes are in addition to the agreed prices and will be shown as a separate line item on the invoice. If tax withholding is required by applicable law, Buyer will adhere to such tax withholding requirements.
14.2 Supplier’s failure to evidence that tax and other levies relevant for Buyer have been paid in accordance with applicable laws and regulations entitles Buyer to withhold payment until Supplier either produces such documentation, or provides satisfactory security for payment of such taxes and levies. Buyer may recover from Supplier at any time any liability incurred by Buyer as a consequence of Supplier failing to pay in the required taxes and levies.
15 WARRANTIES AND REMEDIES
15.1 Supplier warrants that the Deliverables will: (i) strictly conform to the drawings, specifications, samples (if any), and other requirements referred to in the Agreement or specified by Buyer; (ii) be of merchantable quality and suitable for the purposes intended; (iii) conform with all applicable laws and regulations; (iv) be free and clear of all liens, security interests or other encumbrances; (v) not infringe or misappropriate any third party’s patent or other Intellectual Property Rights; and (vi) unless otherwise specified in the Agreement, be free from defects in materials, design, performance, operation, and workmanship, for a period of twelve (12) months after being placed in service by Buyer or twenty-four (24) months from delivery to Buyer, whichever period expires earlier.
15.2 Supplier warrants that it: (i) possesses all necessary expertise, facilities, equipment, licenses and consents, personnel, and operations suitable to perform the work/services; (ii) will meet all specifications, requirements, standards, and other obligations and deadlines specified by Buyer or required by applicable law; and (iii) shall perform any consulting and any other professional services with that degree of skill, care, diligence and good judgment normally exercised by recognized professional firms performing work of the same or similar nature.
15.3 If Supplier delivers more or less than the quantity of Deliverables ordered, Buyer may reject all or any excess Deliverables or demand immediate delivery of any shortfall quantity. Any such rejected Deliverables shall be returned to Supplier at Supplier’s sole risk and expense.
15.4 If the received Deliverables do not conform to the agreed warranties, Buyer may, at its option: (i) hold any rejected Deliverables for Supplier’s instructions and at Supplier’s risk and expense; (ii) return rejected Deliverables to Supplier at Supplier’s risk and expense and require their replacement or correction to the contractual level; (iii) require reperformance or correction of rejected work/services to the contractual level; or (iv) request an equitable price reduction for acceptance of the Deliverables. If Buyer requires replacement, reperformance or correction of the Deliverables, Supplier shall, at its sole risk and expense, promptly replace, reperform or correct the nonconforming or defective Deliverables and pay for all related costs, including, but not limited to, costs for the dismantling, handling and return of the defective Deliverables and the delivery and reintegration of replacement Deliverables.
15.5 As requested by Buyer, Supplier will correct any defects or deficiencies in Deliverables at no cost to Buyer and subject to subsequent acceptance or rejection by Buyer. If Supplier fails to remedy or replace the defective Deliverables within a reasonable time, Buyer is entitled to, at its option: (i) remedy the defects itself or employ a third party to do so at Supplier’s expense or (ii) replace them with goods from a third party at Supplier’s expense, hereunder claim compensation for any costs and price difference related to a substitution purchase. The same shall apply if awaiting Supplier’s remedy will cause substantial inconvenience to Buyer.
15.6 Buyer is entitled to claim compensation for all Losses suffered due to defects to the extent possible pursuant to applicable law. For the avoidance of doubt, Losses include but is not limited to, costs related to i) investigating, limiting and mitigating defects and other warranty breaches and any effects thereof (hereunder costs relating to changes in production output patterns); and ii) internal and outsourced repair work or support, hereunder the use or rental of equipment and machinery.
15.7 Buyer may terminate the Agreement if a defect (or failure to rectify such defect) constitutes a material breach of the Agreement. In such event, Buyer is entitled to reject Supplier’s offer to remedy the defect and/or reperform or replace the Deliverables.
16.1 Either party may without any liability give notice in writing to the other terminating the Agreement with immediate effect if: (i) the other party commits a material breach of the Agreement or it is evident that such breach will occur and (if such breach is remediable) fails to remedy that breach within either a reasonable deadline set by the non-defaulting party, or (if no deadline is specified) within a period of thirty (30) calendar days of being notified in writing to remedy such breach; (ii) the other party repeatedly breaches any of the terms of the Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Agreement; (iii) a petition is filed, a notice is given, a resolution is passed, or an order is made for the winding up or bankruptcy of the other party; or (iv) the other party suspends or ceases, or threatens to suspend or cease, performing all or a substantial part of its business.
16.2 Furthermore, the Buyer may without any liability give notice in writing to the Supplier terminating the Agreement with immediate effect if: (i) Supplier is in breach of any of conditions 5.2, 8.1 or 25 - 29; (ii) the maximum amount of liquidated damages has been accrued; (iii) part or all of Supplier’s assets intended or useful for the performance of the Agreement are seized, attached, frozen or have in any way become unavailable; (iv) Supplier undertakes any act, deed or matter which would result in the creation of any lien or encumbrance of any kind whatsoever on Buyer’s property; or (v) there is a change of Control of Supplier.
16.3 Termination entails that the parties shall return at the defaulting party’s risk and expense all deliveries and payments made as at the time of termination without undue delay. Buyer may, however, at its sole discretion elect to demand delivery of or keep: (i) work-in-progress at the time of termination for a reasonable price (not including loss of anticipated profits or any consequential loss); and/or (ii) non-defective Deliverables for a proportionate part of the agreed price.
16.4 Furthermore, each party shall promptly, upon request from the other: (i) return to the other party all equipment, materials and property belonging to the other party that the other party had supplied to it in connection with the supply of the Deliverables under the Agreement; and (ii) return to the other party or erase (to the extent possible) all documents and materials (and any copies) containing the other party’s Confidential Information.
16.5 Termination of the Agreement shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination. Conditions which expressly or by implication survive termination of the Agreement shall continue in full force and effect.
17.1 Supplier shall defend, indemnify and hold harmless Buyer from and against all liability, damage, losses, expenses or costs (including reasonable legal fees on a solicitor and own client basis), suffered or incurred as a result of Claims that are made, brought or prosecuted in any manner whatsoever against Buyer by a third party, to the extent any such Claim is based upon, arises out of, results from or is attributable to: (a) the negligent acts or omissions, gross negligence, strict liability, or willful, wanton or intentional misconduct, of any of Supplier; or (b) any breach by Supplier of the Agreement.
17.2 Supplier shall in respect of the above not enter into any settlement without Buyer’s prior written consent
18 LIMITATION OF LIABILITY
18.1 Neither party shall under any circumstances whatsoever, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, be liable to the other party for any indirect or consequential damage suffered.
19 SEVERAL LIABILITY
19.1 If there is more than one Buyer under the Agreement, the obligations and liability of each Buyer are several, and neither joint nor joint and several, as regards each Buyer’s own purchases of Deliverables.
20 FORCE MAJEURE
20.1 A party shall not be considered in breach of the Agreement to the extent it is proven that it was unable to fulfill its contractual obligations due to Force Majeure. Each party shall cover its own costs resulting from Force Majeure.
20.2 The party invoking Force Majeure shall notify the other party thereof without undue delay. Such notice shall also include the cause of the delay and the presumed duration thereof.
20.3 Each party is entitled to cancel the Agreement without any liability and with immediate effect if the Force Majeure situation continues, or it is obvious that it will continue, for more than 60 calendar days.
21 TRANSFER OF TITLE AND RISK
21.1 If the Deliverables are manufactured or performed specifically for Buyer, the Deliverables are Buyer’s sole property as and when the Deliverables are produced or performed. Other Deliverables become Buyer’s sole property as and when the Deliverables are paid for or delivered (whatever occurs first).
21.2 All risk associated with the Deliverables will remain with the Supplier until delivery has taken place according to condition 7.2.
21.3 Supplier shall clearly mark the Deliverables in its possession that are Buyer’s property and, if possible, keep such Deliverables separate from other goods.
22 INTELLECTUAL PROPERTY RIGHTS
22.1 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in the Agreement are granted to the other party or to be implied from the Agreement.
22.2 Unless otherwise agreed by the parties:
- The Deliverables (including any reports, drawings, specifications and similar documents, including computer programs) shall be the Buyer’s sole property; and
- All Intellectual Property Rights incorporated into or arising in relation to the Deliverables shall be owned by the Supplier provided, however, that the Buyer shall be granted a non-exclusive, world-wide, paid-up, irrevocable and perpetual license to any such Intellectual Property Rights held by the Supplier to the extent necessary for the Buyer’s use and enjoyment of the Deliverables for any purpose whatsoever.
22.3 Supplier shall indemnify and save harmless Buyer and its agents, officers, directors and employees from and against all claims, demands, actions, costs (including legal fees on an solicitor and own client basis and experts' fees), expenses, judgments, losses, damages, suits or proceedings in any manner based upon, arising out of, resulting from or attributable to a claim or assertion by any person that the manufacture or supply by Supplier or use by Buyer of any portion of the Deliverables infringes or violates any Intellectual Property Rights or applicable laws.
23.1 All Confidential Information exchanged or otherwise transferred between the parties shall be treated as confidential, not be disclosed to any third parties and only exploited commercially for the purposes and within the scope of the Agreement according to the terms of this Agreement. The parties will use best efforts to safeguard all Confidential Information of the other party in the same manner and to the same extent as it safeguards its own Confidential Information.
23.2 A party may nevertheless make such information available to third parties provided that the information was already known to that party at the time the information was received, or that the information is or becomes part of public domain other than through a fault of either of the parties, or is rightfully received from a third party without an obligation of confidentiality or it is necessary due to applicable laws and regulations.
23.3 Information may be disclosed to third parties to the extent necessary for execution of the Agreement, provided that the receiver of such information shall be bound by a confidentiality obligation similar to this condition 23. Notwithstanding the foregoing, any disclosure by Buyer reasonably required for the Buyer’s proper use of any Deliverables shall not be subject to the confidentiality provisions set out herein.
23.4 Without Buyer’s written consent, Supplier shall not issue any press release, refer to or use Buyer’s business name(s) and logo(s) or otherwise advertise that this Agreement has been entered into.
23.5 The obligations in this condition 23 shall survive the expiry/termination of this Agreement and shall remain in force for ten (10) years after any such expiry/termination.
24 SUBCONTRACTING, ASSIGNMENT AND CHANGE OF CONTROL
24.1 Supplier may not subcontract or assign any of its rights and obligations with regard to any part of the Deliverables without Buyer’s prior written consent. Such consent does not exonerate Supplier from any obligations pursuant to the Agreement, and Supplier shall ensure that all HESQ requirements and all of Buyer’s rights pursuant to these General Terms and Conditions of Purchase are made applicable and binding for all subcontractors. Upon Buyer’s request, Supplier shall (i) submit reports on the use, performance and compliance of any subcontractors to Buyer; and (ii) obtain collateral warranties from subcontractors for the benefit of Buyer or other third parties.
24.2 Buyer is entitled to assign its rights and obligations pursuant to the Agreement, fully or partly, to any entity within the Yara Group.
24.3 Supplier shall notify Buyer without undue delay once a change of Control of Supplier has taken place.
25 STANDARDS OF BUSINESS CONDUCT
25.1 The Supplier shall comply with all applicable laws, regulations, codes and sanctions relating to the Agreement, and in particular relating to human rights, bribery, corruption, money-laundering, accounting and financial controls and anti-terrorism, including the Code of Conduct for Yara’s Business Partners available at https://www.yara.com/this-is-yara/ethics-and-compliance/policies/code-of-conduct-for-business-partners/
25.2 The Supplier warrants, agrees and undertakes that in connection with the Agreement it has not and will not make, give, offer, promise or authorize any type of bribes, “facilitation” or “grease” payments by way of improper or illegal payment, gift, advantage or other item of value, whether directly or indirectly, to any third party.
25.3 The Supplier represents and warrants that except as otherwise disclosed in writing to the Buyer, no Public Official or its Close Relatives are presently (i) owning any Controlling interest in the Supplier (directly or indirectly); (ii) or has a right to any benefit if the Buyer enters into the Agreement with the Supplier.
25.4 The Buyer may at any time and at its own cost and upon reasonable notice in writing perform regular integrity due diligence reviews and audits of the Supplier to ensure compliance with this condition 25. Subject to appropriate confidentiality procedures, the Supplier shall fully cooperate with the Buyer in the performance of any such reviews and audits, and comply with any and all reasonable requests upon reasonable notice in writing for access to facilities, information, individuals and documentation.
25.5 The Supplier shall ensure that all its business partners who perform services or provide goods in connection with the Agreement do so only on the basis of a written contract, which imposes on and secures from such business partners terms substantially equivalent to those imposed on the Supplier in this condition 25. The Supplier shall be responsible for reasonable and appropriate due diligence procedures prior to engaging its business partners relating to the Agreement, and for monitoring the adherence and performance by such persons of its compliance obligations.
25.6 Notwithstanding any other provision of the Agreement, the Buyer may, upon written notice to the Supplier, (i) suspend payment of any price or fee if, and for as long as, the Buyer reasonably believes that the Supplier has breached or failed to properly carry out any of its obligations set out in this condition 25; and/or (ii) terminate the Agreement if the Supplier has materially breached or failed to properly carry out any of its obligations set out in this condition 25.
25.7 As agreed from time to time, the Buyer and Supplier shall cooperate in arranging and participating in compliance trainings, seminars and projects at their own cost.
25.8 The Buyer and Supplier shall without undue delay report any suspected infringements of this condition 25 to the other party.
26.1 Supplier shall prior to any work being performed request and familiarize itself with Buyer’s HESQ rules, and shall ensure that work at Buyer’s premises are carried out in compliance with any and all rules in force relating to HESQ.
26.2 Supplier shall itself, and ensure that its representatives and subcontractors, at all times: (i) observe and comply with all applicable legislation, rules and regulations relating to HESQ and any other requirements of any relevant public authority; (ii) observe and comply with all Buyer’s HESQ standards set out in the Agreement and any other security requirements that apply at the Buyer’s and third party premises; (iii) notify the Buyer as soon as it becomes aware of any HESQ hazards or issues which arise in relation to the Deliverables; (iv) work according to a recognized quality management system and have a satisfactory system for HESQ assurance and quality assurance suitable for the Deliverables; (v) strive to keep the impact to the environment to a minimum and continuously reduce the environmental impact of its activities; and (vi) obtain and maintain all public permits necessary to deliver the Deliverables, and shall upon Buyer’s request produce documentation showing that the necessary permits have been obtained.
26.3 The Buyer reserves the right to refuse the Supplier and its representatives and subcontractors access to its premises in case of non-compliance with the obligations set out in this condition 26.
26.4 Buyer is at any time entitled to carry out upon reasonable notice in writing, and Supplier shall assist in carrying out, HESQ audits and inspections of the Deliverables and relevant operations at Supplier’s or any subcontractors’ premises.
27 PROTECTION OF PROPERTY
27.1 The Supplier shall take all necessary precautions to protect the Deliverables, Buyer’s property and, where the Deliverables require work at the Buyer’s premises, the property of any other person located in, upon or about the Buyer’s premises (including, without limitation, all overhead and underground utilities, structures and pipelines) from damage due to any cause related to the Deliverables.
27.2 If the Supplier or any person for whom it is responsible damages the Buyer’s property, the Supplier shall reimburse the Buyer for any costs reasonably and necessarily incurred by the Buyer to make good such damage.
28 CHEMICAL COMPLIANCE
28.1 To the extent required, the Supplier warrants that it, and all sub-suppliers of substances used in relation to the Deliverables, complies with the Chemical Laws, CLP Laws and any other chemical compliance rules and regulations relevant for the Deliverables. For the avoidance of doubt, the Supplier shall adhere to the strictest standards regarding HESQ and chemical compliance pursuant to the Agreement and applicable rules and regulations.
28.2 The Supplier undertakes that all those substances incorporated in the Deliverables which are subject to registration or other notification under the Chemical Laws, have been registered (or the applicable notice has been provided) by the Supplier (and, where applicable, by all relevant sub-suppliers) covering the uses of Buyer, in each case in accordance with the requirements of the Chemical Laws. For the avoidance of doubt, this undertaking also applies to any ancillary substances and/or products, such as coatings, colors or micronutrients which may have been added to or incorporated in the Deliverables. The Supplier and/or its sub-suppliers shall not register the substances as Intermediates.
28.3 The Supplier shall ensure at all times that Buyer is provided promptly with relevant and up-to-date Safety Data Sheet(s) in accordance with the requirements of the Chemical Laws and the CLP Laws.
28.4 Upon Buyer’s request Supplier shall forthwith provide Buyer with all information relating to substances in the Deliverables that is reasonably necessary to enable Buyer to fulfill its own obligations in relation to the Chemical Laws and the CLP Laws.
29 DATA PRIVACY
29.1 Buyer and Supplier shall, during the term of the Agreement comply with, and procure that all representatives comply with, applicable data privacy laws and regulations, including information security requirements, relating to their performance under the Agreement.
29.2 If a party becomes aware of a Personal Information Breach, it shall notify the other party without undue delay and provide reasonable assistance to the other party to ensure compliance with applicable data protection laws and regulations.
30.1 Each party represents, warrants and undertakes to the other party, on the date of the Agreement, that it: (i) is not a person or entity that is named on any Sanctions List or directly or indirectly owned or controlled by any such person or entity or otherwise directly or indirectly targeted under any Sanctions; (ii) does not have any director, officer, employee or agent that is named on any Sanctions List or is the subject of any inquiry, claim or proceeding with respect to Sanctions; (iii) is not violating and will not violate any applicable Sanctions in connection with the Agreement; and (iv) has not involved and will not involve any persons or entity mentioned above in this condition 29 in connection with the negotiation of, entry into or performance of the Agreement, (each a Sanctions Event).
30.2 If a Sanctions Event occurs in relation to a party after the date of the Agreement and before the later of expiry or termination of the Agreement and the date that all obligations under the Agreement are fully and finally discharged: (i) the party to whom the Sanctions Event applies shall promptly notify the other party in writing with full details of the Sanctions Event together with, following any request from the other party for it to do so, any other information reasonably requested by the other party; (ii) without limiting anything in this condition or the Agreement, the other party may at any time during which the Sanctions Event is continuing, suspend performance of the Agreement by notice to the party to whom the Sanctions Event applies. No party shall be liable for non-performance of any of its obligations during the period of suspension, provided that the party to whom the Sanctions Event applies shall continue to use all reasonable efforts to resolve, and shall keep the other party informed of developments with respect to, the Sanctions Event. The suspension shall end, and the parties shall resume performance of their obligations as soon as reasonably and lawfully practicable following cessation of the Sanctions Event; and (iii) the other party may, at any time during which the Sanctions Event is continuing, terminate the Agreement by notice to the party to whom the Sanctions Event applies. Such termination shall be without further liability to either party, but shall not affect liabilities which accrued prior to the earlier of the date of suspension or termination in accordance with this condition 29 and which are lawful for the relevant party to discharge as at the date of termination.
31 AMENDMENT AND WAIVER
31.1 The Agreement may not be amended unless mutually agreed by the parties, recorded in a written instrument and signed by each party.
31.2 A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
31.3 Failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
32.1 The Agreement constitutes the entire agreement between the parties and supersedes all previous discussions, correspondence and negotiations between them relating to the Deliverables.
32.2 If delivery has been agreed according to Incoterms, the latest version in force at the date the Agreement was entered into shall apply. In the event of any conflict or inconsistency between the terms of the Agreement and the applicable Incoterm, the terms of the Agreement shall govern to the extent of the conflict or inconsistency.
32.3 All notices, claims, etc. which the Agreement requires to be presented in writing, must be given without undue delay to an authorized representative of the receiving party either personally (including by courier) or by email, at the address and email address for each party set in the Agreement or at any other address or email address or to the attention of any other authorized representative of which a party notifies the other party in accordance with this condition 31.3.
32.4 All notices or other communications will be considered given: (a) in the case of personal delivery or delivery by courier, when delivered; (b) in the case of mail, three days after they are postmarked; and (c) in the case of email, on the same day except if such notice is transmitted after 5:00 pm in the place in which it is received in which case it shall be deemed to have been received on the next working day. For the purposes hereof, a “working day” is any day other than a Saturday, Sunday or statutory holiday in the jurisdiction where the Deliverables are to be provided.
32.5 This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
32.6 If any provision of the Agreement (or part of any provision) is found by any court or another authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Agreement, and the validity and enforceability of the other provisions of the Agreement shall not be affected.
32.7 For purposes of the Agreement (including the attached schedules), (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; and (b) the word “or” is not exclusive. Whenever the singular is used herein, the same shall include the plural, and whenever the plural is used herein, the same shall include the singular, where appropriate. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. The Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. Any Schedules referred to in this Agreement or attached to this Agreement shall be construed with, and as an integral part of, the Agreement to the same extent as if they were set forth verbatim herein. The headings in the Agreement (including the attached Schedules) are for reference only and shall not affect the interpretation of the Agreement. Time is of the essence in the performance of the Agreement.
33 APPLICABLE LAW AND LEGAL VENUE
33.1 The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the Province of Saskatchewan (and the federal laws of Canada applicable therein), including Payment Legislation (if applicable), without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the Province of Saskatchewan (and the federal laws of Canada applicable therein). The applicability of (i) the UN Convention on Contracts for the International Sale of Goods; and (ii) The International Sale of Goods Act (Saskatchewan) is specifically excluded. Subject to the dispute resolution process prescribed by Payment Legislation (if applicable), the Supplier attorns to the exclusive jurisdiction of the courts of the Province of Saskatchewan.