General Purchase Terms and Conditions
- These terms and conditions of purchase (these "Terms") are the only terms which govern the purchase of the goods ("Goods") and services ("Services") by the Canadian Cancer Society ("CCS") from the seller ("Seller"). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods and Services covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
- These Terms ("Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Seller's general terms and conditions of sale regardless whether or when Seller has submitted its sales confirmation or such terms. This Agreement expressly limits Seller's acceptance to the terms of this Agreement. Fulfilment of this order constitutes acceptance of these Terms.
2. Delivery of Goods and Performance of Services
- Seller shall deliver the Goods in the quantities and on the date(s) specified in the order or as otherwise agreed in writing by the parties (the "Delivery Date"). If Seller fails to deliver the Goods in full on the Delivery Date, CCS may terminate this Agreement immediately by providing written notice to Seller and Seller shall indemnify CCS against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller's failure to deliver the Goods on the Delivery Date. CCS has the right to return any Goods delivered prior to the Delivery Date at Seller's expense and Seller shall re-deliver such Goods on the Delivery Date.
- Seller shall deliver all Goods to the address provided (the "Delivery Point") during CCS's normal business hours or as otherwise instructed by CCS. Seller shall pack all goods for shipment according to CCS's instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Seller must provide CCS prior written notice if it requires CCS to return any packaging material. Any return of such packaging material shall be made at Seller's risk of loss and expense.
- Seller shall provide the Services to CCS as described and in accordance with the schedule agreed to in writing by the parties and in accordance with the terms and conditions set forth in these Terms.
- Seller acknowledges that time is of the essence with respect to Seller's obligations hereunder and the timely delivery of the Goods and Services, including all performance dates, timetables, project milestones and other requirements in this Agreement.
CCS shall have the right to reject all or any portion of the Goods or Services that are delivered more or less than the quantity ordered or are damaged or defective. Any such rejected Goods shall be returned to Seller at Seller's sole risk and expense. If CCS does not reject the Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the Price for the Goods shall be adjusted on a pro-rata basis.
4. Title and Risk of Loss
Title and risk of loss passes to CCS upon delivery of the Goods at the Delivery Point. Seller bears all risk of loss or damage to the Goods until delivery of the Goods to the Delivery Point.
5. Inspection and Rejection of Non-Conforming Goods
CCS has the right to inspect the Goods on or after the Delivery Date. CCS, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are non-conforming or defective. If CCS rejects any portion of the Goods, CCS has the right, effective upon written notice to Seller, to: (a) rescind this Agreement in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If CCS requires replacement of the Goods, Seller shall, at its expense, promptly replace the non-conforming or defective Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, CCS may replace them with goods from a third party and charge Seller the cost thereof and terminate this Agreement for cause pursuant to Section 17. Any inspection or other action by CCS under this Section shall not reduce or otherwise affect Seller's obligations under the Agreement, and CCS shall have the right to conduct further inspections after Seller has carried out its remedial actions.
The price of the Goods and Services is the price agreed to in writing by the parties (the "Price"). Unless otherwise specified in the order, the Price includes all packaging, transportation costs to the Delivery Location, insurance, customs duties and fees and applicable taxes, including, but not limited to, all harmonized sales tax, goods and services tax, provincial sales tax, value added tax, use or excise taxes, if applicable. No increase in the Price is effective, whether due to increased material, labour, or transportation costs or otherwise, without the prior written consent of CCS.
7. Payment Terms
Seller shall issue an invoice to CCS on or any time after the completion of delivery and only in accordance with these Terms. CCS shall pay all properly invoiced amounts due to Seller within thirty (30) days after CCS's receipt of such invoice, except for any amounts disputed by CCS in good faith. All payments hereunder must be in Canadian dollars and made by cheque or electronic transfer payable to Seller unless agreed upon otherwise. Without prejudice to any other right or remedy it may have, CCS reserves the right to set-off at any time any amount owing to it by Seller against any amount payable by CCS to Seller under this Agreement. In the event of a payment dispute, CCS shall deliver a written statement to Seller no later than five (5) days prior to the date payment is due on the disputed invoice listing all disputed items and providing a reasonably detailed description of each disputed item. Amounts not so disputed are deemed accepted and must be paid, notwithstanding disputes on other items, within the period set forth in this Section. The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under this Agreement notwithstanding any such dispute.
8. Seller's Obligations Regarding Services
- before the date on which the Services are to start, obtain, and at all times during the term of this Agreement, maintain, all necessary licences and consents and comply with all relevant laws applicable to the provision of the Services;
- comply with all rules, regulations, and policies of CCS, including security procedures concerning systems and data and remote access thereto, building security procedures, including the restriction of access by Buyer to certain areas of its premises or systems for security reasons, and general health and safety practices and procedures;
- maintain complete and accurate records relating to the provision of the Services under this Agreement, including records of the time spent and materials used by Seller in providing the Services in such form as CCS shall approve. During the term of this Agreement and for a period of two (2) years thereafter, upon CCS's written request, Seller shall allow CCS to inspect and make copies of such records and interview Seller personnel in connection with the provision of the Services;
- obtain CCS's written consent, which shall not be unreasonably withheld or delayed, prior to entering into agreements with or otherwise engaging any person or entity, including all subcontractors and affiliates of Seller, other than Seller's employees, to provide any Services to CCS (each such approved subcontractor or other third party, a "Permitted Subcontractor"). CCS's approval shall not relieve Seller of its obligations under the Agreement, and Seller shall remain fully responsible for the performance of each such Permitted Subcontractor and its employees and for their compliance with all of the terms and conditions of this Agreement as if they were Seller's own employees.
- require each Permitted Subcontractor to be bound in writing by the confidentiality provisions of this Agreement, and, upon CCS's written request, to enter into a non-disclosure or intellectual property assignment or licence agreement in a form that is reasonably satisfactory to CCS;
- ensure that all persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of the Seller, are properly licensed, certified, or accredited as required by applicable law and are suitably skilled, experienced, and qualified to perform the Services;
- ensure that all of its equipment used in the provision of the Services is in good working order and suitable for the purposes for which it is used, and conforms to all relevant legal standards and standards specified by the CCS; and
- keep and maintain any CCS equipment in its possession in good working order and shall not dispose of or use such equipment other than in accordance with the CCS's written instructions or authorization.
9. Change Orders
CCS may at any time, by written instructions and/or drawings issued to Seller (each a "Change Order"), order changes to the Services. Seller shall within ten (10) days of receipt of a Change Order submit to CCS a firm cost proposal for the Change Order. If CCS accepts such cost proposal, Seller shall proceed with the changed services subject to the cost proposal and the terms and conditions of this Agreement. Seller acknowledges that a Change Order may or may not entitle Seller to an adjustment in the Seller's compensation or the performance deadlines under this Agreement.
10. Intellectual Property
The parties acknowledge and agree that the development of any work products resulting from the provision of Services (“Work Products”) may result in the creation or development of new intellectual property and may contain or utilize the existing intellectual property of either CCS or Seller and of third parties. The parties agree as follows:
- Except as set out in subsection (b) below, Seller hereby assigns and agrees to assign to CCS, all right, title and interest, including all intellectual property rights, in and to each Work Product from the moment of creation and will cause its personnel to assign same. Seller will cause its personnel to waive all moral rights each may have in each Work Product. For greater certainty, each Work Product includes, but is not limited to, the output of any Service which utilizes CCS’s Confidential Information as defined herein.
- To the extent that a Work Product contains or utilizes the intellectual property of Seller or a third party (“Retained Materials”) and Seller expressly identifies such Retained Materials, Seller and the applicable third party will, subject to the following sentence, retain all of their respective right, title and interest, including all intellectual property rights, which each may have in such Retained Materials. To the extent that a Work Product contains or utilizes Retained Materials, Seller grants to CCS and its affiliates a royalty-free, irrevocable, perpetual, world-wide, non-exclusive license to make, use, sell, modify, prepare derivative works, disclose, publish, sublicense, copy and communicate by electronic means such Retained Materials solely for CCS’s business use.
- CCS hereby grants Seller a royalty-free, non-exclusive license for the term of this Agreement to use CCS’s intellectual property, including, but not limited to CCS’s Confidential Information, solely for the purpose of providing the Services and delivering the Work Products. Seller acknowledges and agrees that, except as expressly set out herein, it does not have and will not acquire any right, title or interest in or to any of CCS’s intellectual property, including, but not limited to CCS’s Confidential Information.
- Seller agrees to cooperate fully at all times and will cause its personnel to cooperate fully at all times, with respect to signing such documents and doing such acts and other things reasonable requested by CCS to protect CCS’s Confidential Information and to confirm the transfer of ownership rights in the Work Product.
11. Conditions and Warranties
- Seller covenants and warrants to CCS that for a period of twelve (12) months from the Delivery Date, all Goods will:
- be free from any defects in workmanship, material, and design;
- conform to applicable specifications, drawings, designs, samples, and other requirements specified by CCS;
- be fit for their intended purpose and operate as intended;
- be merchantable;
- be free and clear of all liens, security interests, or other encumbrances; and
- not infringe or misappropriate any third party's patent or other intellectual property rights.
- These warranties survive any delivery, inspection, acceptance, or payment of or for the Goods by CCS;
- Seller warrants to CCS that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement; and
- the warranties set forth in this Section are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of CCS's discovery of the noncompliance of the Goods or Services with the foregoing conditions and warranties. If CCS gives Seller notice of noncompliance pursuant to this Section, Seller shall, at its own cost and expense, within thirty (30) days (i) replace or repair the defective or non-conforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or non-conforming goods to Seller and the delivery of repaired or replacement Goods to CCS, and, if applicable, (ii) repair or re-perform the applicable Services.
12. General Indemnification
Seller shall defend, indemnify, and hold harmless CCS its subsidiaries, affiliates, successors, or assigns and its respective directors, officers, shareholders and employees (collectively, "Indemnitees") against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost, or expense, including reasonable legal fees and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, "Losses") arising out of or occurring in connection with the Goods and Services purchased from Seller or Seller's negligence, wilful misconduct, or breach of the Terms. Seller shall not enter into any settlement without CCS's prior written consent.
13. Intellectual Property Indemnification
Seller shall, at its expense, defend, indemnify, and hold harmless CCS and any Indemnitee against any and all Losses arising out of or in connection with any claim that CCS's or Indemnitee's use or possession of the Goods or use of the Services infringes or misappropriates the patent, copyright, trademark, trade secret or other intellectual property right of any third party. In no event shall Seller enter into any settlement without CCS's or Indemnitee's prior written consent.
14. Limitation of Liability
Nothing in this Agreement shall exclude or limit (a) Seller's liability under Sections 2, 3, 5, 6, 8, 10, 18, and 21 hereof, or (b) Seller's liability for fraud, personal injury, or death caused by its negligence or wilful misconduct.
During the term of this Agreement, Seller shall, at its own expense, maintain, and carry insurance in full force and effect which includes, but is not limited to:
- A comprehensive or commercial general liability (including product liability) in a sum no less than five million dollars ($5,000,000 ) per occurrence for bodily injury, including death, property damage liability, personal injury and contractual liability with financially sound and reputable insurers. If requested by CCS, Seller shall add CCS as additional insured on its commercial general liability policy. Seller shall provide to CCS, at the request of CCS, copies of any insurance certificates evidencing that Seller maintains adequate insurance coverage.
- A workers compensation insurance or any alternative plan or coverage permitted or required under applicable law and employer’s liability insurance with a minimum limit of not less than five million dollars ($5,000,000) per occurrence; and
- A comprehensive professional liability insurance covering liability for financial loss suffered by CCS due to any error, omission or negligence of Seller, its employees, directors, officers, agents or subcontractors in the performance of this Agreement with a minimum limit of not less than five million dollars ($5,000,000) per claim. Compliance with this Section will not relieve Seller from compliance with any other obligations set out in this Agreement. Seller shall provide CCS with thirty (30) days' advance written notice in the event of a cancellation or material change in Seller's insurance policy. Except where prohibited by law, Seller shall require its insurer to waive all rights of subrogation against Seller's insurers and Seller.
16. Compliance with Law
Seller is in compliance with and shall comply with all applicable laws, regulations, and ordinances. Seller shall maintain in effect all the licences, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Seller shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Seller. Seller assumes all responsibility for shipments of Goods requiring any government import clearance. Buyer may terminate this Agreement if any governmental authority imposes antidumping or countervailing or any retaliatory duties or any other penalties on Goods.
In addition to any remedies that may be provided under these Terms, CCS may terminate this Agreement with immediate effect upon written notice to the Seller, either before or after the acceptance of the Goods or the seller's delivery of the Services, if Seller has not performed or complied with any of these Terms, in whole or in part. If the Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors, then the CCS may terminate this Agreement upon written notice to Seller. If CCS terminates the Agreement for any reason, Seller's sole and exclusive remedy is payment for the Goods received and accepted and Services accepted by CCS prior to the termination.
No waiver by CCS of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by CCS. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
19. Confidential Information
All non-public, confidential, or proprietary information of CCS, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by CCS to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the purpose of performing this Agreement and may not be disclosed or copied unless authorized in advance by CCS in writing. Upon CCS's request, Seller shall promptly return all documents and other materials received from CCS. CCS shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Seller at the time of disclosure; or (c) rightfully obtained by CCS on a non-confidential basis from a third party.
20. Personal Information
21. Force Majeure
No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement except for any obligations to make payments to the other party hereunder, when and to the extent such party's ("Impacted Party") failure or delay is caused by or results from the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, tsunami, fire, earthquake, explosion; and (c) epidemics, pandemics, including the 2019 novel coronavirus pandemic (COVID-19; (d) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (e) government order, law or actions; (f) embargoes or blockades in effect on or after the date of this Agreement;(g) national or regional emergency;(h) strikes, lockouts, labour stoppages or slowdowns, labour disputes, or other industrial disturbances;(i) shortage of adequate power or telecommunications or transportation facilities; and (j) failure of any governmental or public authority to grant a necessary licence or consent; and (k) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within five (5) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of thirty (30) consecutive days following written notice given by it under this Section, the other party may thereafter terminate this Agreement upon thirty (30) days' written notice.
Seller shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of CCS. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder. CCS may at any time assign or transfer any or all of its rights or obligations under this Agreement without Seller's prior written consent to any affiliate or to any person acquiring all or substantially all of CCS's assets.
23. Relationship of the Parties
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Agreement.
24. No Third-Party Beneficiaries
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.
25. Governing Law
All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein without giving effect to any choice or conflict of law provision or rule (whether of the Province of Ontario or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Province of Ontario. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
26. Choice of Forum
Any legal suit, action, litigation or proceeding of any kind whatsoever in any way arising out of, from or relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached to this Agreement, and all contemplated transactions, shall be instituted in the courts of the Province of Ontario, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation or proceeding. Service of process, summons, notice, or other document by mail to such Party's address set forth herein shall be effective service of process for any suit, action, litigation, or other proceeding brought in any such court. Each Party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The Parties irrevocably and unconditionally waive any objection to the venue of any action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
All notices, request, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing. Each notice shall be (i) personally delivered, (ii) sent by courier, (iii) sent by facsimile or email, or (iv) sent by pre-paid registered.
Notice to CCS shall be delivered to the following address:
Canadian Cancer Society
500 - 55 St. Clair Ave. West
Toronto ON M4V 2Y7
Attention: Legal Department
Notice to Seller shall be delivered to the last address provided to CCS by the Seller.
Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; and (c) when sent, if by facsimile or email (in each case, with confirmation of transmission) if sent during the addressee's normal business hours, and on the next business day if sent after the addressee's normal business hours.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement.
30. Amendments and Modifications
These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.