The following Wajax Terms and Conditions of Purchase (the “Terms”) apply to all purchases of products by and/or the performance of all services for any of Wajax Limited, Delom Services Inc., Delstar Power Inc., Motion Electric Motor Services Inc., Northpoint Technical Services ULC and Tundra Process Solutions Ltd. and/or any of their respective affiliates or related entities from time to time (each a “Wajax Entity”). The specific Wajax Entity which will be bound by these Terms with respect to a particular purchase shall be the Wajax Entity which is a party to the relevant Contract (as defined below).
1. Definitions
In these Terms:
a. “Change Order” means a written change order for Work issued by Wajax to the Vendor;
b. “Contract” means the contract formed between the Vendor and Wajax pursuant to a written contract (of which these Terms form a part) or pursuant to an Order which has been issued by Wajax to the Vendor (of which these Terms shall be deemed to form a part), in any case with respect to the Work;
c. “Order” means a written purchase order or service order of Wajax;
d. “Parties” means the Vendor and Wajax together;
e. “Products” means the goods, materials, equipment, parts and/or products to be sold by the Vendor to Wajax, or to be supplied by the Vendor as part of the Services, pursuant to and as specified in the Contract;
f. “Purchase Price” means the price payable by Wajax to the Vendor pursuant to the Contract for the Work, including all applicable taxes;
g. “Services” means the services to be provided by the Vendor to Wajax pursuant to and as specified in the Contract;
h. “Vendor” means the seller of the Products and/or Services pursuant to the Contract;
i. “Wajax” means the Wajax Entity identified in and party to the Contract; and
j. “Work” means the Products and the Services.
2. Entire Agreement
The Contract, including these Terms, is the complete and entire agreement between the Parties with respect to the subject matter of the Contract. Wajax hereby objects to and shall not be bound by any additional, different or conflicting terms, whether printed or otherwise, in any other communication between the Parties (including on any of the Vendor’s forms), it being understood that the terms and conditions of the Contract (including these Terms) shall prevail notwithstanding any such additional, different or conflicting terms.
3. Acceptance of Order
Each Order, bearing an Order number, is the only authorization that will be recognized by Wajax for charges to its account. If the Vendor does not accept the Order or a Change Order, it shall send a notice of rejection to Wajax. Receipt by Wajax of an Order or Change Order acknowledgment within five (5) business days, or the Vendor starting to perform any of the obligations of the Order or Change Order, or shipment of the Products, whichever comes first, shall be deemed to be complete acceptance by the Vendor of the Order, or Change Order, and the Terms.
4. Acceptance of Work
All Work shall be received subject to Wajax’s inspection, testing and acceptance at the named point of delivery notwithstanding any inspection or testing at the Vendor’s premises or any prior payment for such Work. Wajax may inspect and test all Work at reasonable times and on notice to the Vendor before, during and after manufacture, delivery or performance thereof. Work rejected by Wajax as not conforming to the Order or Work specifications, whether provided by the Vendor, furnished with the Work or provided by Wajax, may be returned to the Vendor at the Vendor’s risk and expense and, at Wajax’s option, shall promptly be repaired, replaced or refunded. Notwithstanding any receipt for the Work given by Wajax, the Work shall remain liable to rejection if not in accordance with the Order. Rejected Work will be held at the risk and expense of the Vendor. No inspection, testing or acceptance by Wajax or its customer shall invalidate or otherwise affect any warranty or other liability of the Vendor under the Contract or these Terms.
5. Obligations of the Vendor
The Vendor shall:
a. comply with all applicable laws, ordinances, codes, rules, regulations and orders in connection with the manufacturing, packaging, labelling, importing, shipping and sale of the Products to Wajax and with the provision of Services to Wajax;
b. comply with all applicable anti-bribery and anti-corruption laws, including the Corruption of Foreign Public Officials Act (Canada), the Foreign Corrupt Practices Act (United States) and the U.K. Bribery Act;
c. obtain and maintain as necessary or advisable all governmental or other approvals, authorizations, certifications, registrations, filings, licenses and permits relating to design, manufacture and sale of the Products (including certifying the Products for sale);
d. not use any form of forced labour or child labour, as such terms are defined in in An Act to enact the Fighting Against Forced Labour and Child Labour in Supply Chains Act and to amend the Customs Tariff (Canada), in its supply chain;
e. manufacture the Products in accordance with the Contract and the Vendor’s published specifications or as otherwise provided in the Contract. Wajax’s specifications for the Products will supersede the Vendor’s in the event that Wajax provides same; and
f. observe and comply with the principles stated in Wajax’s Code of Business Conduct.
6. Warranty
The Vendor warrants and guarantees to Wajax as follows:
a. the Products sold and delivered to Wajax shall be new (unless otherwise specified), be in good and undamaged condition, be merchantable and fit and safe for the purpose for which they are intended to be used and be free of any defects in design, material and workmanship;
b. the Work shall comply with all applicable laws and regulations including, as applicable, certification, packaging and labelling requirements;
c. the Work shall comply with all applicable laws and regulations including, as applicable, certification, packaging and labelling requirements;
d. the Work does not infringe any copyright, patent, trademark, trade secret or other intellectual property right of any kind of any third party;
e. the Work shall be free and clear of any liens, privileges, charges, security interests or encumbrances of any kind whatsoever; and
f. the Work shall be created, developed and performed diligently, in a professional, workmanlike and timely manner, in compliance with high industry standards and with appropriate levels of personnel, in accordance with this Contract (including all specifications contained in the Contract).
Warranties in respect to defect in design, material and workmanship will be effective for two (2) years from the date of installation or from the date that the Work is put into use, whichever is greater, and all other warranties will continue without limitation as to time. Any Work which is repaired or replaced under warranty shall continue to be covered by the warranty for the remaining duration of the warranty.
If the Vendor does not promptly fulfill its warranty obligations or if any situations arise which require the immediate performance of actions to remedy the breach of warranty, then, on notice to the Vendor, Wajax or its customer, without prejudice to other remedies, may remedy the breach of warranty by any reasonable means (including the engagement of and procurement from third parties) and the Vendor will be liable to and will promptly refund Wajax and its customer, as applicable, for all reasonable costs incurred for same.
The Vendor’s warranty is assignable and will extend to any and all permitted assignees and successors of Wajax, and all customers and end- users of the Products. The Vendor agrees to assign to Wajax the benefit of all assignable warranties provided by its subcontractors including all manufacturer’s warranties, and if the Vendor is unable to assign such warranties, it will, at Wajax’s or its customer’s or end- user’s request, pursue related warranty claims for Wajax’s and its customer’s or end-user’s benefit.
7. Delivery and Title
Unless otherwise specified in the Order, risk of loss and title to the Work shall pass to Wajax at the point of delivery stipulated in the Order. If Wajax free issues (that is, provides at no cost) a product to the Vendor to perform Work such as integration, the risk of loss in such product shall pass to the Vendor when the product is shipped to the Vendor. While the product is in the Vendor’s possession, it shall protect the product from loss and damage.
8. Order Procedure and Changes
The Vendor shall sell and deliver the Work to Wajax in such quantities and at such confirmed delivery dates as set out in the Order as the same may be modified by Wajax by way of a Change Order. No deviation from the item description, specifications or any other requirements contained in the Contract shall be made without the prior written consent of Wajax. The Vendor shall monitor and regularly update Wajax on the progress of the Work. In the event that the Vendor determines that the delivery date is not likely to be met, it shall immediately notify Wajax in writing in order to obtain Wajax’s consent to a revised delivery date, and the Vendor shall without delay prepare a written statement of the specific measures it will undertake, at its sole cost and expense, to improve the delivery date, including but not limited to, expedited freight, overtime work and employing additional personnel.
If any Change Order will, in the opinion of the Vendor, cause any variations in the price or time for performance or any other obligation of the Vendor, written notice thereof shall be submitted by the Vendor within five (5) business days after receiving such Change Order from Wajax, failing which it shall be deemed that no such variations will be claimed by the Vendor. If any such Change Order will cause a variation in the price or delivery date or other obligations and the Vendor has notified Wajax of such impact as required, the Vendor shall not proceed with any such variation until written acceptance and duly signed Change Order is received from Wajax confirming the adjustment in the price and/or time for performance and/or any other obligations of the Vendor. If the Vendor gives notice of a variation in Purchase Price or delivery date or other obligations, Wajax shall be entitled to confirm or withdraw the Change Order.
9. Shipment and Shipment Charges
The Vendor must obtain at its own risk and expense any export or import license or other official authorization and carry out, where applicable, all customs formalities necessary for the import of Products into Canada. The Vendor shall be liable for freight and customs charges and damage to the Products resulting from any failure by the Vendor to comply with this provision. If Products are deemed to be dangerous and/or hazardous, the Vendor shall ensure all required documentation is prepared and submitted to the carrier prior to shipment with copy to Wajax. No transportation or delivery charges of any kind including packing, boxing, storage or cartage charges shall be paid by Wajax or reimbursed to the Vendor unless specifically agreed to by Wajax in writing. All invoices, shipping documents and other writings pertaining to the Contract shall refer to Wajax’s Order number.
10. Packing and Markings
The Vendor shall adequately and securely pack all Products in such a manner as to prevent loss or damage in transit. Special packing instructions may be contained in the Contract. Wajax shall have the right to reject any Products damaged in transit and to recover from the Vendor any damages which Wajax has suffered arising from the Vendor’s failure to comply with the provisions of this clause. Unless otherwise stated in the Contract, the cost of packing materials, packing cases and other packing charges shall be deemed to be included in the Purchase Price.
The Products shall be properly tagged showing the Vendor’s equipment identification numbers as well as Wajax’s Order number. Unless otherwise detailed in the Contract, all packing slips shall show the Order number and a description of the goods as described in the Contract, together with the Vendor’s equipment identification number for correlation thereto. As a minimum requirement, a copy of the packing slip must be affixed to the outside of the package and a copy of the packing slip must be included inside the package. Products received not in accordance with the above instructions may be subject to rejection. Upon shipment, the Vendor shall promptly notify Wajax in writing of the dispatch together with the routing information and anticipated time of receipt.
11. Returns
Wajax shall be entitled to return Products for immediate full credit or refund, at the Vendor’s cost and without Wajax being charged any re- stocking or other fee, in the following circumstances if:
a. Products do not conform to the requirements of the Contract;
b. Products are subject to a warranty claim;
c. Products are the subject of an intellectual property claim or related allegations or litigation; or
d. Products are subject to a product recall.
Wajax shall be entitled to return all Products which are in saleable condition if a return request is made within 45 days of receipt of the Product by Wajax, subject to a 10% restocking fee.
12. Payment and Prices
Prices specified in the Contract shall, unless otherwise expressly stated, be fixed and in the currency stated in the Contract, inclusive of export taxes and duties in the country of origin and all packaging and loading at the Vendor’s facility, but exclusive of any Canadian federal or provincial taxes (HST, GST and/or PST) which, if applicable, shall be shown as a separate line item on the Vendor’s invoice. Wajax shall be entitled to set off against any amounts owing to the Vendor, including amounts related to other unrelated contracts with Wajax or any other Wajax Entity, any amounts owing by the Vendor hereunder. In case of a Change Order, a separate invoice detailing each Change Order shall be submitted. The Vendor shall reference the Order number and Change Order number when issuing invoices for payment. Failure to do so will result in the invoice being returned unpaid to the Vendor. Invoices are to be emailed to Wajax to the attention of the Wajax contact who placed the Order or as the Wajax contact may otherwise direct in writing. The Vendor’s invoices will be paid in accordance with the payment terms included in the Contract, provided that the Vendor has fulfilled the specified conditions and that such invoice is accurate and complete and is accompanied by the required supporting documents. If payment terms are not specified in the Contract, all amounts are due and payable 75 days from the receipt of the invoice by Wajax, except for amounts disputed in good faith. If invoices and/or supporting documents require correction, the time of payment will be calculated from the date of receipt of the corrected invoice and/or supporting documents.
13. Suspension of Performance
Wajax may, by written notice to the Vendor, suspend performance of all or any portion of the Contract. The suspension notice shall specify the commencement date and estimated duration of the suspension. Upon receiving a suspension notice, the Vendor shall immediately suspend performance of the specified portion of the Contract, and during the suspension period shall properly care for and protect all work in progress and materials, supplies and equipment the Vendor has on hand for performance of the Contract. The Vendor shall use its best efforts to utilize its material, labour and equipment in such a manner as to mitigate costs associated with suspension.
If the Vendor believes that any such suspension or withdrawal of suspension justifies modification of the Contract amount or time for performance, substantiated by documentation satisfactory to and verified by Wajax, the Vendor shall notify Wajax in writing within five (5) business days or earlier if reasonably possible. In such case, Wajax shall be entitled to confirm or withdraw the suspension. In case of confirmation from Wajax, the Contract amount or delivery date shall be modified based on mutual written agreement between the Parties. In no event shall the Vendor be entitled to any loss of prospective profits, contributions to overhead or any incidental, consequential or other damages due to such suspensions or withdrawals of suspension.
14. Cancellation for Convenience
Wajax shall have the right to cancel for its convenience any or all unperformed part of the Contract at any time by written notice to the Vendor. On the cancellation date stated in the notice, the Vendor shall discontinue all cancelled Work, shall (with respect to the cancelled Work) place no additional orders, and preserve and protect materials purchased for or committed to the cancelled Work, Work in progress and completed goods, and shall dispose of these materials and goods in accordance with Wajax’s instructions. On termination, Wajax shall not be responsible to the Vendor for any overhead or consequential damages, including lost profits or opportunity.
15. Intellectual Property
Wajax shall have the right to terminate the Contract upon the occurrence of any one of the following events if the same is not cured within ten (10) days following the delivery by Wajax to the Vendor of written notice of such event:
a. the Vendor shall have defaulted in its performance under any material provision of the Contract; or
b. the Vendor shall have ceased to conduct the normal course of its business, seeks protection under bankruptcy, insolvency, reorganization or creditor moratorium laws, becomes insolvent or bankrupt or makes an assignment for the benefit of creditors, if proceedings are initiated by or against the Vendor seeking relief, reorganization or rearrangement under laws relative to insolvency, or if a receiver, liquidator or trustee is appointed in respect of any material property or assets of the Vendor.
On termination of the Contract by Wajax for default by the Vendor: (i) Wajax shall have no liability whatsoever as a result of such termination and shall be entitled to exercise any remedies available to it under the Contract (including these Terms or at law); (ii) Wajax may require the Vendor to deliver to Wajax, in its state of completion at the date of termination, any Work to be delivered by the Vendor under the Contract; and (iii) Wajax may complete the Contract by such means as Wajax selects, and the Vendor shall pay Wajax for any additional costs incurred by Wajax in completing the Contract.
16. Confidentiality
Unless otherwise specified in the Contract, all information including general business information, financial data, technical data, reports, photographs, electronic files, specifications, software, drawings, tools, dies, patterns, plans, methods or other intellectual property supplied, disclosed, conceived or prepared by Wajax in connection with the Contract, whether disclosed verbally, in writing, in electronic or other form, shall be considered confidential, shall not, at any time, be disclosed to a third party by the Vendor without written consent of Wajax and shall be used by the Vendor solely for the purpose of completing and delivering the Work.
17. Indemnity
The Vendor shall indemnify and hold harmless Wajax and its affiliates and related entities, and its and their respective officers, directors, employees, agents and representatives (collectively, the “Wajax Parties”), from and against all liabilities, costs, expenses (including, without limitation, legal fees and expenses), claims, demands, causes of action, damages and judgments which Wajax may incur or suffer in respect of any: (i) claim or demand that the Work infringes any copyright, patent, trademark, trade secret or other intellectual property right of any kind of any third party; (ii) claim or demand for disease, injury or death of any person (including third parties), or damage to or loss or destruction of any property, in connection the Vendor’s performance or breach of the Contract (including these Terms), or any other claim or demand regarding any defect or fault in any Work, including any defect in respect of material or workmanship; (iii) breach or inaccuracy of any representation, warranty, or covenant given by the Vendor in this Contract; (iv) recall of any of the Products; or (v) negligence of the Vendor in connection with the Work or this Contract.
18. Intellectual Property
In the event that the Vendor is doing any custom work for Wajax as part of the Work, such as drawings and plans, the Vendor assigns, sets over and transfers to Wajax its entire right, title and interest in and to any and all intellectual property in such custom work. Further, the Vendor shall, at its own expense, defend any suit brought against any of the Wajax Parties or any of their customers on the grounds that the sale or use of the Work infringes a patent or other right of any third party. Without limiting the Vendor’s obligations under this Section 18, if any of the Wajax Parties or any of their customers is enjoined by a court of competent jurisdiction, or is threatened with proceedings which would enjoin it, from selling or using the Work on the ground that such sale or use of the Work infringes a patent or other right of any third party or if the Vendor establishes after investigation that the sale or use of the Work infringes any such patent or other right, the Vendor, at its option, shall either: (a) procure a license for Wajax and its customers to sell and use the Work; (b) modify the Work to make it non- infringing without impairing its performance; or (c) replace the Work with substantially equal but non-infringing Work.
19. Insurance
The Vendor shall (at no additional charge) maintain insurance, including at least: (i) $5 Million Commercial General Liability Insurance per occurrence, including Blanket Contractual, Broad Form Products/Completed Operations and Broad Form Vendor’s Endorsement; and, if applicable to the Work, (ii) Professional Errors and Omissions Insurance, with a minimum limit of $2 Million per claim/aggregate. For all of the insurance described in this section, the Vendor shall if requested provide Wajax with certificates of insurance evidencing all of the above- stated coverage. The Vendor shall ensure that its insurers endeavour to provide Wajax with a minimum of 60 days’ advance written notice of cancellation or adverse material change to any of the policies.
20. Offset Credits
Wajax and/or any of its affiliates or related entities may be required by its customers to fulfill offset or other industrial cooperation obligations. The Vendor shall provide all reasonable assistance to Wajax as Wajax may reasonably request, including but not limited to providing data related to the value of the procurement, at no additional cost in order for Wajax and/or any of its affiliates or related entities to meet such offset requirements and this assistance shall include obtaining offset requirements in the Vendor’s subcontractors’ activities resulting from this Order. If applicable, the Vendor acknowledges that in selecting Vendor for the Work, Wajax considered the Government of Canada’s Industrial and Technological Benefits Policy in making its selection.
21. Limitation of Liability
Notwithstanding any other provision of the Contract, Wajax shall in no event be liable to the Vendor or any other person with respect to any Work or the Contract, by way of indemnity or by reason of any breach of contract, warranty, statutory duty, tort, negligence, strict liability or otherwise, whether or not the possibility of such losses or damages were known or should have been known by Wajax, (a) for any indirect, special, incidental, punitive, aggravated, exemplary or consequential loss or damage including loss of production, revenues, profits, opportunities, market or use, or economic loss, which may be suffered by the Vendor or any other person, (b) for any loss or damage which may be suffered by the Vendor or any other person as a result of any suspension or cancellation of the Contract by Wajax in accordance with its terms, or (c) in an amount in excess of the Purchase Price paid for such Work.
22. Assignment
The Contract including these Terms shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns. No assignment of the Contract, in whole or in part, shall be made by the Vendor without the prior written consent of Wajax, and if such consent is provided, the Vendor shall remain jointly and severally liable with the assignee for the obligations of the Vendor under the Contract. Wajax in its sole discretion may assign the Contract to any of its affiliates or related entities or to any third party.
23. Governing Law
The Contract shall be governed by, construed and interpreted in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein (but without giving consideration to any conflict of law rules). Wajax and the Vendor agree that the courts of Ontario have jurisdiction to entertain any legal proceedings in respect of the Contract, including these Terms, and Wajax and the Vendor hereby irrevocably consent to and attorn to the non-exclusive jurisdiction of such courts. Wajax may take proceedings for enforcement in any jurisdiction. The International Sale of Goods Act and the United Nations Convention on Contracts for The International Sale of Goods do not apply to the Contract.
24. General
a. The headings of these Terms are solely for convenience of reference and do not affect the interpretation thereof or define, limit or construe the contents of any provision of these Terms.
b. Notwithstanding any rule or maxim of construction to the contrary, any ambiguity or uncertainty will not be construed against any Party by reason of the authorship of any provision hereof.
c. Any notice, request, or other document to be given under the Contract shall be in writing and sent to Wajax or the Vendor, as applicable, at its address as set out in the Contract.
d. No waiver, alteration, revision or modification of the Contract including these Terms shall be binding on either Party unless made in writing and signed by each of the Parties.
e. In the event there is a conflict between the terms of the main body of the Contract and these Terms, the terms of the main body of the Contract shall prevail.
f. The relationship between the Parties shall be that of independent contractors (including for purposes of the Income Tax Act (Canada)) and no partnership, agency, joint venture or any other relationship shall arise pursuant to the Contract.
g. All remedies set out in the Contract including these Terms are cumulative and in addition to any and all other statutory, common law and equitable remedies available to the parties.
h. Time shall be of the essence under the Contract.
i. If any provision of the Contract including these Terms is found to be invalid or unenforceable, neither the validity nor enforceability of any other provision of the Contract including these Terms shall be affected or impaired. The invalid or unenforceable provision shall be severed and replaced with a valid or enforceable provision that accomplishes the same intent to the greatest extent possible.
j. The delay or failure of a Party to exercise a right or remedy under the Contract including these Terms shall not operate as a waiver of that right or remedy. No single or partial exercise of any right or remedy precludes subsequent exercise of that or any other right or remedy.
k. The completion, cancellation or termination of the Contract shall not release or relieve either of the Parties from any obligation or liability under the Contract including those Terms which expressly or by their nature survive such completion, cancellation or termination, including without limitation, all indemnities in favour of Wajax and all obligations of confidentiality contained herein.
l. Each Party agrees from time to time, subsequent to the date hereof, to execute and deliver or cause to be executed and delivered to the others of them such instruments or further assurances as may, in the reasonable opinion of any other of them, be necessary or desirable to give effect to the provisions of the Contract including these Terms.
m. The Parties confirm that it is their wish that this Contract and any other document executed in connection with the transactions contemplated herein be drawn up in the English language only. Les parties aux présentes ont expressément exigé que la présente convention et tous les autres contrats, documents ou avis qui y sont afférents soient rédigés en langue anglaise.