Canada Terms and Conditions

General Terms and Conditions

  1. INTRODUCTION: The following Terms and Conditions shall govern the procurement of the products and/or services which are the subject matter of any Purchase Order or purchase (the “Order”) issued by MacLellan Integrated Services Canada Ltd. (“MacLellan”) to a supplier (“Supplier”). By accepting the Order and/or performing thereunder, Supplier will be deemed to have accepted these Terms and Conditions. The Order, including these Terms and Conditions, shall constitute the entire contract between the parties, and supersedes any and all prior written and oral agreements or understandings relating to such subject matter. It is expressly agreed that the terms of the Order and these Terms and Conditions shall supersede any additional or contrary terms, limitations or conditions set forth in any acceptance, quote, proposal or other document, and no terms included in any such document shall apply. The Order and these Terms and Conditions may be amended or modified only by a writing executed by both parties. Notwithstanding the foregoing, if MacLellan and Supplier have also executed a written agreement that governs the procurement of the products and/or services which are the subject of the Order (the “Written Contract”), then the terms and conditions of that Written Contract control and supersede the provisions of the Order and these Terms and Conditions to the extent inconsistent and/or conflicting therewith.

  2. AUTHORITY: The individual agreeing to these Terms and Conditions on behalf of a Supplier that is a corporation, limited liability company or other legal entity represents and warrants that he or she has the legal authority to bind such entity to these Terms and Conditions, in which case the term “Supplier” shall refer to such entity. If MacLellan finds that the individual agreeing to these Terms and Conditions on behalf of an entity does not have the legal authority to bind such entity, the individual agreeing to these Terms and Conditions will be personally responsible for the obligations contained in these Terms and Conditions. MacLellan shall not be liable for any loss or damage resulting from MacLellan’s reliance on any instruction, notice, document or communication reasonably believed by MacLellan to be genuine and originating from an authorized representative of such entity. If there is reasonable doubt about the authenticity of any such instruction, notice, document or communication, MacLellan reserves the right (but undertakes no duty) to require additional authentication.

  3. CHOICE OF LAW: The Order and these Terms and Conditions shall be governed by the laws of the Province of Ontario, without regard to its conflicts of laws doctrines. All disputes, controversies or claims arising out of, or in connection with, the Order shall be litigated exclusively in the Provincial courts located in Toronto, Ontario. Supplier hereby agrees to accept service of process as if it were personally served within the Province of Ontario.

  4. PRICING: The prices specified in the Order are fixed prices and are valid for the entire duration of the Order. Supplier shall not make changes to the pricing or charge additional fees or surcharges which are not detailed in the Order without MacLellan’s prior written approval.

  5. SHIPMENT AND DELIVERY:

    1. a)  Supplier shall deliver all products to MacLellan as set forth in the Order, subject to the terms and conditions outlined herein. MacLellan will pay standard freight charges. MacLellan shall not be liable for any delays, loss or damage in transit.

    2. b)  Supplier may make partial shipments of products to MacLellan. Each shipment will constitute a separate sale, and MacLellan shall pay for the units based upon the agreed upon payment terms outlined herein.

  6. PAYMENT TERMS: Supplier shall remit invoices to MacLellan for the Order within 48 hours after the products are shipped or the services are completed. Supplier’s invoices must contain the relevant Order

number(s) and any invoice that fails to contain such information shall be rejected. Payment of each invoiced amount is due 45 days after the invoice date, unless otherwise mutually agreed upon in writing by MacLellan and Supplier.

  1. EMPLOYEE TAXES AND BENEFITS: Supplier shall be solely responsible for (a) withholding all local, provincial/territorial, and federal taxes from its employees who provide services under the Order (each, an “Associate”), and (b) providing to its Associates all worker’s compensation coverage and other benefits required by law. Supplier and MacLellan shall cooperate to (i) establish the rate of pay and method of payment for Associates, and (ii) provide accommodations required for Associates under applicable law, including but not limited to the Ontario Human Rights Code and the Accessibility for Ontarians With Disabilities Act, 2005. Supplier represents that Associates are not MacLellan employees or agents and that Supplier is fully responsible for its Associates’ acts. Supplier shall defend and hold MacLellan harmless from and against any actions, claims, costs (including legal fees and costs), administrative proceedings, and suits brought against MacLellan by reason of Supplier’s failure to comply with such laws and regulations or representations made herein.

  2. INSURANCE: Supplier (including its subcontractors) shall, at its sole cost and expense, procure and maintain insurance which shall include employer’s liability, workers’ compensation, comprehensive general liability, and automotive or vehicle liability, and any other necessary insurance coverages required by MacLellan, its customers, or applicable law. Supplier agrees to provide MacLellan with a certificate of insurance evidencing the required coverage, and to include a waiver of subrogation in favor of MacLellan. Unless otherwise agreed to in writing by MacLellan, the insurance coverage for Supplier (including its subcontractors) shall not be less than the following:

    1. Employer’s liability insurance in an amount of not less than One Million Dollars (CAD$1,000,000) for claims in one (1) year.

    2. Workers’ compensation providing statutory coverage that shall comply in all respects to the statutes of the jurisdiction, locality, or province/territory where the services are provided or performed.

    3. Comprehensive general liability in the form of general liability or umbrella coverage, including coverage for products, completed operations, contractual liability, bodily injury, and property damage with limits of not less than Five Million Dollars (CAD$5,000,000).

    4. Automobile or vehicle liability, including owned, non-owned, and hired vehicles, with limits of (i) not less than One Million Dollars (CAD$1,000,000) for automobiles and vehicles, (ii) Two Million Dollars (CAD$2,000,000) for trucks larger than pick-ups but smaller than tractor trailer units, and (iii) Five Million Dollars (CAD$5,000,000) for tractor trailer units, in each case with a combined single limit per occurrence. The coverage amounts may be in the form of automobile or vehicle liability or umbrella coverage.

  3. INDEMNIFICATION: Without limiting Section 7 of these Terms and Conditions, Supplier shall indemnify and hold harmless MacLellan and its officers, directors, shareholders, employees, agents, parent companies, subsidiaries, affiliates, successors and assigns from any and all liability, costs, expenses or losses arising in any way out of (a) any breach of these Terms and Conditions or the Order, (b) the acts, omissions, performance, negligence or willful misconduct of Supplier’s agents or employees (including its Associates) in connection with the Order or while on property owned or leased by MacLellan or its customers, or (c) any failure by its Associates to fully comply with all local, state, and federal laws and regulations while performing services under the Order.

10. SILICONE FREE: Notwithstanding any provision of the Order to the contrary, all products and items purchased or supplied in conjunction with the Order are to be manufactured and assembled without the use

of silicone. This includes but is not limited to all equipment, components, assemblies of components, gaskets, diaphragms, seals, lubricants, sealants, cleaning compounds, chemicals and prime or finish paints. If the products or items provided under the scope of the Order are not 100% silicone free, then immediately and in any case prior to delivery, Supplier shall notify MacLellan in writing. MacLellan will provide Supplier with a course of action to remedy the situation acceptable to MacLellan in its sole discretion. Notwithstanding anything else contained herein or in the Order, Supplier (a) acknowledges that a breach of this Section may cause significant direct, consequential, indirect or special damages to MacLellan and/or its customers, and (b) shall be responsible for any such direct, consequential, indirect or special damages caused in whole or in part by breach of this Section and without regard to any other limitation of damages provisions contained herein or in the Order. MacLellan reserves the right to cancel the Order without penalty if products or items purchased are not 100% silicone free. Please direct any questions or concerns relating to this Section to MacLellan at (859) 219-5400.

  1. SAFETY: Associates performing services on MacLellan’s or its customer’s properties shall exercise reasonable care and adhere to all local, provincial/territorial, and federal laws and regulations pertaining to workplace safety and the handling, storage, and transportation of hazardous materials while performing services under the Order. Associates while on MacLellan’s and/or its customer’s properties shall also comply with any and all workplace rules and policies established by MacLellan and its customers to ensure the safety of the workplace.

  2. CONFIDENTIALITY: MacLellan, Supplier, and their respective agents and employees (including Associates), shall not disclose to anyone any confidential, proprietary or trade secret information that comes to the attention of the receiving party, or its agents or employees (including Associates), in connection with the Order. Both parties acknowledge that compliance with this Section is necessary for each to protect proprietary and confidential information, and that a breach of this Section by either party, or its agents or employees (including Associates), may result in irreparable and continuing damage, for which money damages may not provide adequate relief. Consequently, the parties agree that in the event of a breach of this Section, the non-breaching party may be entitled to both (1) a preliminary and/or permanent injunction in order to prevent continuation of such harm (without any requirement to post any bond or other security) and (2) money damages insofar as they can be determined.

  3. NON-SOLICITATION: Supplier agrees that, during the term of the Order and for a period of eighteen months after its conclusion, Supplier will not solicit for hire any employee of MacLellan or otherwise persuade or cause any employee to discontinue working for MacLellan. MacLellan agrees that, during the term of the Order and for a period of eighteen months after its conclusion, MacLellan will not solicit for hire any employee of Supplier (including Associates) or otherwise persuade or cause any employee (including Associates) to discontinue working for Supplier. For purposes of this Section, publication of job postings in a publicly available publication or forum, such as in a trade magazine or newspaper or at a job fair or on a website, or publication of openings with a career placement office or firm, shall not be considered solicitation.

  4. WAIVER OF BREACH: The waiver by Supplier or MacLellan of a breach of a provision of the Order or these Terms and Conditions shall not operate or be construed as a waiver of any later breach of the same or any other provision thereof.

  5. SEVERABILITY: Should any provision of these Terms and Conditions or the Order be found to be unenforceable by a court of law, the remaining provisions shall not be effected thereby.

  6. ASSIGNMENT: No right or duty, in whole or in part, of Supplier under the Order may be assigned, transferred, delegated, or sold without the prior written consent of MacLellan.

  7. INDEPENDENT CONTRACTORS: The parties acknowledge that the parties are independent contracting parties, and that neither the making of the Order nor the performance of any of the provisions hereof shall be construed to constitute either party as an agent or legal representative of the other party for any purpose, nor shall the Order be deemed to establish a joint venture, partnership, franchisee, or employer-employee relationship.

  8. FORCE MAJEURE: In the event that a delay or failure of a party to comply with any obligations created by the Order is caused by a force majeure condition, that obligation shall be suspended during the continuance of the force majeure condition. For the purposes of the Order, the term “force majeure” shall mean any event beyond the control of the parties, including, without limitation, fire, flood, riots, strikes, epidemics, war (declared or undeclared and including the continuance, expansion or new outbreak of any war or conflict now in existence) embargoes, and governmental actions or decrees.

  9. ENFORCEMENT: In the event either party is in default of its obligations under these Terms and Conditions or the Order, the non-defaulting party may give written notice of the default to the defaulting party, and the defaulting party shall have seven (7) days to cure the default. If such default is not timely cured, the non-defaulting party may terminate the Order and pursue all available remedies against the defaulting party.

  10. EXTRA WORK: Any work requested by MacLellan that falls outside of the scope of the Order shall be considered extra work. Any and all extra work charges shall be invoiced separately from the Order. MacLellan shall not be liable for extra work charges unless MacLellan requests such extra work in writing.

  11. WARRANTIES: Supplier warrants that:

    1. a)  Supplier has the right to enter into the Order, and Supplier and its Associates have all necessary rights,

      permits, authorizations and licenses to provide the services and perform their obligations under the

      Order, and the same will not violate any other agreement or contract to which Supplier is a party;

    2. b)  Supplier and its Associates shall comply with all applicable laws and regulations in connection with the

      performance of the services, including without limitation, compliance with any applicable

      anticorruption and cybersecurity laws and regulations;

    3. c)  Supplier and its Associates have the proper skill, training and background so as to be able to perform

      the services in a competent and professional manner.

  12. BREACH; ATTORNEY FEES: In the event of any breach of these Terms and Conditions or the Order, the non-breaching party shall be entitled to recover its reasonable legal fees incurred in connection therewith. The remedies herein provided shall be cumulative and no single remedy shall be construed as exclusive of any other remedy. Failure of the non-breaching party to exercise any remedy at any time shall not operate as a waiver of the right of such party to exercise any remedy for the same or subsequent breach at any time thereafter.

Revision - 01/15/20

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