Niagara Parks Commission Purchase Order Terms & Conditions

The Vendor acknowledges and agrees by accepting the Purchase Order that they have received, read, understood and shall abide by these Terms and Conditions.

1. Services & Deliverables

Vendor agrees to provide to THE NIAGARA PARKS COMMISSION (hereinafter referred to as “NPC”) the services (“Services”) and/or goods (“Goods”), described in the Purchase Order, in accordance with the provisions of the Purchase Order and these Terms and Conditions which together shall form the agreement between the parties (“Agreement”). Upon acceptance of the Purchase Order, shipment of Goods or commencement of a Service, Vendor shall be bound by the provisions of this Agreement, including all provisions set forth on the face of any applicable Purchase Order, whether Vendor acknowledges or otherwise signs this Agreement or the Purchase Order, unless Vendor objects to such terms in writing prior to shipping Goods or commencing Services.

This Agreement may not be added to, modified, superseded, or otherwise altered, except by writing signed by an authorized NPC representative. Any terms or conditions contained in any acknowledgment, invoice, or other communication of Vendor, which are inconsistent with the terms and conditions herein, are hereby rejected.

To the extent that this Agreement might be treated as an acceptance of Vendor’s prior offer, such acceptance is expressly made on condition of assent by Vendor to the terms hereof and the shipment of the Goods or beginning performance of any Services by Vendor shall constitute such assent.

The Purchase Order does not constitute a firm offer, and may be revoked at any time prior to acceptance. NPC hereby reserves the right to reschedule any delivery or cancel any Purchase Order issued at any time prior to shipment of the Goods or prior to commencement of any Services. NPC shall not be liable or responsible for any charges, damages, loss, costs, expenses or other fees incurred by the Vendor, either directly or indirectly, as a result of such revocation or cancellation of the Purchase Order.

2. Delivery

Time is of the essence. Delivery of Goods and Services shall be made pursuant to the schedule, via the carrier, and to the place specified on the face of the applicable Purchase Order. NPC reserves the right to return, shipping charges collect, all Goods received in advance of the delivery schedule, unless prior written approval is obtained from NPC.

If no delivery schedule is specified, the order shall be filled promptly and delivery will be made by the most expeditious form of land transportation.

If no method of shipment is specified in the Purchase Order, Vendor shall use the least expensive carrier.

In the event Vendor fails to deliver the Goods or Services within the time specified, NPC may, at its sole option, decline to accept performance and terminate the Agreement or may demand its allocable fair share of Vendor’s available Goods and terminate the balance of the Agreement. NPC shall not be liable or responsible for any damages, loss, costs, or expenses incurred by the Vendor, either directly or indirectly, as a result of such termination of the Agreement. Vendor shall package all items in suitable containers to permit safe transportation and handling. Each delivered container must be labelled and marked to identify contents without opening and all boxes and packages must contain packing sheets listing contents. NPC’s Purchase Order number must appear on all shipping containers, packing sheets, delivery tickets, and bills of lading.

3. Identification, Risk of Loss, & Destruction of Goods

Vendor assumes all risk of loss until receipt by NPC. Title to Goods shall pass to NPC upon receipt by it of the Goods at the designated destination. If the Goods ordered are destroyed prior to title passing to NPC, NPC may at its sole option terminate the Agreement without liability for any damages, loss, costs, or expenses incurred by the Vendor, either directly or indirectly, as a result of such termination, or require delivery of substitute Goods of equal quantity and quality. Such delivery will be made as soon as commercially practicable. If loss of Goods is partial, NPC shall have the right to require delivery of the Goods not destroyed.

4. Payment

As full consideration for the performance of the Services, delivery of the Goods and the assignment of rights to NPC as provided herein, NPC shall pay Vendor (i) the amount agreed upon and specified in the applicable Purchase Order, or (ii) Vendor’s quoted price on date of shipment (for Goods), or the date Services were started (for Services), whichever is lower. Applicable taxes and other charges such as shipping costs, duties, customs, tariffs, imposts, and government imposed surcharges shall be stated separately on Vendor’s invoice or quotation. Payment is made when NPC’s cheque is mailed. Payment shall not constitute acceptance. All personal property taxes assessable upon the Goods prior to receipt by NPC of Goods conforming to the Purchase Order shall be borne by Vendor. Vendor shall invoice NPC for all Goods delivered and all Services actually performed. Each invoice submitted by Vendor must be provided to NPC within ninety (90) days of completion of the Services or delivery of Goods and must reference the applicable Purchase Order, and NPC reserves the right to return all incorrect invoices. Unless otherwise specified on the face of a Purchase Order, NPC shall pay the invoiced amount within thirty (30) days after receipt of a correct invoice. Vendor will receive no royalty or other remuneration of any kind on the production or distribution of any products developed by NPC or Vendor in connection with or based on the Goods or Services provided.

5. Warranties

5.1 Services:

Vendor represents and warrants that all Services shall be completed in a professional, workmanlike manner, with the degree of skill and care that is required by current, good, and sound professional practices and procedures. Further, Vendor represents and warrants that the Services shall be completed in accordance with applicable specifications and shall be correct and appropriate for the purposes contemplated in this Agreement. Vendor represents and warrants that they have full authority to enter into this Agreement and that the performance of Services under this Agreement will not conflict with, or be prohibited in any way by, any other agreement or statutory restriction to which Vendor is bound.

5.2 Goods:

Vendor warrants that all Goods provided will be new and will not be used or refurbished. Vendor warrants that all Goods delivered shall be free from defects in materials and workmanship and shall conform to all applicable specifications for a period of eighteen (18) months from the date of delivery to NPC or for the period provided in Vendor’s standard warranty covering the Goods, whichever is longer. Vendor hereby agrees that it will make spare parts available to NPC for a period of five (5) years from the date of shipment at Vendor’s then current price, less applicable discounts. Additionally, Goods purchased shall be subject to all written and oral express warranties made by Vendor’s agents. All warranties shall be construed as conditions as well as warranties and shall not be exclusive. Vendor shall furnish to NPC Vendor’s standard warranty and service guaranty applicable to the Goods. All warranties and Service guaranties shall run both to NPC and to its customers.

If NPC identifies a warranty problem with the Goods during the warranty period, NPC will promptly notify Vendor of such problems and will return the Goods to Vendor, at Vendor’s expense. Within ten (10) Business Days of receipt of the returned Goods, as defined herein, Vendor shall, at NPC’s option, either repair or replace such Goods, or credit NPC’s account for the same. Replacement and repaired Goods shall be warrantied for the remainder of the warranty period or six (6) months, whichever is longer.

For purposes of this Agreement, “Business Day” means Monday through Friday except for any statutory or civic holidays observed in the City of Niagara Falls.

6. Inspection

NPC shall have a reasonable time after receipt of Goods or Service deliverables and before payment to inspect them for conformity hereto, and performance hereunder shall not be deemed accepted until NPC has run an adequate test to determine whether the Goods and Services conform to the specifications hereof. Use of a portion of the Goods and Services for the purpose of testing shall not constitute an acceptance of the Goods. If performance tendered does not wholly conform to the provisions hereof, NPC shall have the right to reject such performance. Nonconforming Goods will be returned to Vendor freight collect and risk of loss will pass to Vendor upon NPC’s delivery to the common carrier. In such event, NPC may at its sole option terminate the Agreement without liability for any damages, loss, costs, or expenses incurred by the Vendor, either directly or indirectly, as a result of such termination.

7. Independent Contractor

Vendor is an independent contractor for all purposes, without express or implied authority to bind NPC by contract or otherwise. Neither Vendor nor its employees, agents or subcontractors (“Vendor’s Assistants”) are agents or employees of NPC, and therefore are not entitled to any employee benefits of NPC, including but not limited to, any type of insurance. Vendor shall be solely responsible for all costs and expenses incident to performing its obligations under this Agreement and shall provide Vendor’s own supplies and equipment. The Parties expressly disclaim any intention to create any joint venture or partnership or agency relationship pursuant to or by the terms of this Agreement.

8. Vendor Responsible for Taxes and Records

Vendor shall be solely responsible for filing the appropriate federal, state and local tax forms and paying all such taxes or fees, including estimated taxes and employment taxes, due with respect to Vendor’s receipt of payment under this Agreement. Vendor further agrees to provide NPC with reasonable assistance in the event of a government audit. NPC shall have no responsibility to pay or withhold any payment to Vendor under this Agreement, any federal, state, or local taxes or fees.

9. Insurance

Vendor shall be solely responsible for obtaining and maintaining such adequate health, auto, workers’ compensation, unemployment compensation, disability, liability, and other insurance, as is required by law or as is the common practice in Vendor’s trade or business, whichever affords greater coverage. Vendor shall provide NPC with certificates of insurance or evidence of coverage satisfactory to the NPC before commencing performance under this Agreement and upon request from time to time. The NPC shall be named as an additional insured. Vendor shall provide adequate coverage for any NPC property under the care, custody or, control of Vendor, as may be required by NPC from time to time.

10. Indemnity

Vendor shall indemnify, hold harmless, and at NPC’s request defend NPC, its officers, directors, customers, agents and employees, against all claims, liabilities, damages, losses, and expenses, including legal fees arising out of or in any way connected with the Goods or Services provided under this Agreement, including, without limitation, (i) any claim based on the death or bodily injury to any person, destruction or damage to property, or contamination of the environment and any associated clean-up costs, (ii) Vendor failing to satisfy the Canada Revenue Agency’s guidelines for an independent contractor, (iii) any claim based on the negligence, omissions, or wilful misconduct of Vendor or any Vendor’s employees and (iv) any claim by a third party against NPC alleging that the Goods or Services, the results of such Services, or any other products or processes provided under this Agreement, infringe a patent, copyright, trademark, trade secret, or other proprietary right of a third party, whether such are provided alone or in combination with other products, software, or processes. Vendor shall not settle any such suit or claim without NPC’s prior written approval. Vendor agrees to pay or reimburse all costs that may be incurred by NPC in enforcing this indemnity, including legal fees.

Should NPC’s use, or use by its subcontractors, or customers, of any Goods or Services purchased from Vendor be enjoined, be threatened by injunction, or be the subject of any legal proceeding, Vendor shall, at its sole cost and expense, either (a) substitute fully equivalent non-infringing Goods or Services; (b) modify the Goods or Services so that they no longer infringe but remain fully equivalent in functionality; (c) obtain for NPC, its subcontractors, or customers the right to continue using the Goods or Services; or (d) if none of the foregoing is possible, refund all amounts paid for the infringing Goods or Services.

11. Confidentiality

Vendor may acquire knowledge of NPC Confidential Information (as defined herein) in connection with its performance hereunder and agrees to keep such NPC Confidential Information in confidence during and following termination or expiration of this Agreement. “NPC Confidential Information” includes but is not limited to all information, whether written or oral, in any form, including without limitation, information relating to the research, development, products, methods of manufacture, trade secrets, business plans, customers, vendors, finances, personnel data, Work Product (as defined herein), and other material or information considered proprietary by NPC relating to the current or anticipated business or affairs of NPC which is disclosed directly or indirectly to Vendor. In addition, NPC Confidential Information means any third party’s proprietary or confidential information disclosed to Vendor in the course of providing Services or Goods to NPC. NPC Confidential Information does not include any information (i) which Vendor lawfully knew without restriction on disclosure before NPC disclosed it to Vendor, (ii) which is now or becomes publicly known through no wrongful act or failure to act of Vendor, (iii) which Vendor developed independently without use of the NPC Confidential Information, as evidenced by appropriate documentation, or (iv) which is hereafter lawfully furnished to Vendor by a third party as a matter of right and without restriction on disclosure. In addition, Vendor may disclose Confidential Information which is required to be disclosed pursuant to a requirement of a government agency or law so long as Vendor provides prompt notice to NPC of such requirement prior to disclosure.

Vendor agrees not to copy, alter, or directly or indirectly disclose any NPC Confidential Information. Additionally, Vendor agrees to limit its internal distribution of NPC Confidential Information to Vendor’s employees who have a need to know, and to take steps to ensure that the dissemination is so limited, including the execution of nondisclosure agreements with provisions substantially similar to those set forth herein. In no event will Vendor use less than the degree of care and means that it uses to protect its own information of like kind, but in any event not less than reasonable care to prevent the unauthorized use of NPC Confidential Information.

Vendor further agrees not to use the NPC Confidential Information except in the course of performing hereunder and will not use such NPC Confidential Information for its own benefit or for the benefit of any third party. The mingling of the NPC Confidential Information with information of Vendor shall not affect the confidential nature or ownership of the same as stated hereunder. Vendor agrees not to design or manufacture any products which incorporate NPC Confidential Information. All NPC Confidential Information is and shall remain the property of NPC. Upon NPC’s written request or the termination of this Agreement, Vendor shall return, transfer, or assign to NPC all NPC Confidential Information, including all Work Product, as defined herein, and all copies thereof.

12. Ownership of Work Product

For purposes of this Agreement, “Work Product” shall include, without limitation, all designs, discoveries, creations, works, devices, models, work in progress, Service deliverables, inventions, products, computer programs, procedures, improvements, developments, drawings, notes, documents, information and materials made, conceived, or developed by Vendor, alone or with others, which result from or relate to the Services performed hereunder. Standard Goods manufactured by Vendor and sold to NPC without having been designed, customized, or modified for NPC do not constitute Work Product. All Work Product shall at all times be and remain the sole and exclusive property of NPC. Vendor hereby agrees to irrevocably assign and transfer to NPC and does hereby assign and transfer to NPC all of its worldwide right, title, and interest in and to the Work Product including all associated intellectual property rights. NPC will have the sole right to determine the treatment of any Work Product, including the right to keep it as trade secret, execute and file patent applications on it, to use and disclose it without prior patent application, to file registrations for copyright or trademark in its own name, or to follow any other procedure that NPC deems appropriate. Vendor agrees: (a) to disclose promptly in writing to NPC all Work Product in its possession; (b) to assist NPC in every reasonable way, at NPC’s expense, to secure, perfect, register, apply for, maintain, and defend for NPC’s benefit all copyrights, patent rights, mask work rights, trade secret rights, and all other proprietary rights or statutory protections in and to the Work Product in NPC’s name as it deems appropriate; and (c) to otherwise treat all Work Product as NPC Confidential Information as described above. These obligations to disclose, assist, execute, and keep confidential survive the expiration or termination of this Agreement. All tools and equipment supplied by NPC to Vendor shall remain the sole property of NPC.

Vendor will ensure that Vendor’s employees appropriately waive any and all claims and assign to NPC any and all rights or any interests in any Work Product or original works created in connection with this Agreement. Vendor irrevocably agrees not to assert against NPC or its direct or indirect customers, assignees, or licensees any claim of any intellectual property rights of Vendor affecting the Work Product.

NPC will not have rights to any works conceived or reduced to practice by Vendor which were developed entirely on Vendor’s own time without using equipment, supplies, facilities, or trade secrets or NPC Confidential Information, unless (i) such works relate to NPC’s business, or NPC’s actual or demonstrably anticipated research or development, or (ii) such works result from any Services performed by Vendor for NPC.

13. Termination

NPC may terminate this Agreement upon written notice to Vendor if Vendor fails to perform or otherwise breaches this Agreement, files a petition in bankruptcy, becomes insolvent, or dissolves, without liability for any damages, loss, costs, or expenses incurred by the Vendor, either directly or indirectly, as a result of such termination. In the event of such termination, NPC shall solely be responsible to pay Vendor for the portion of the Services satisfactorily performed and those conforming Goods delivered to NPC through the date of termination, less appropriate offsets, including any additional costs to be incurred by NPC in completing the Services.

NPC may terminate this Agreement for any other reason upon thirty (30) days’ written notice to Vendor. Vendor shall cease to perform Services and/or provide Goods under this Agreement on the date of termination specified in such notice without liability for any damages, loss, costs, or expenses incurred by the Vendor, either directly or indirectly, as a result of such termination. In the event of such termination, NPC shall be liable to Vendor only for those Services satisfactorily performed and those conforming Goods delivered to NPC through the date of termination, less appropriate offsets.

Upon the expiration or termination of this Agreement for any reason: (a) each party will be released from all obligations to the other arising after the date of expiration or termination, except for those which by their terms survive such termination or expiration; and (b) Vendor will promptly notify NPC of all NPC Confidential Information or any Work Product in Vendor’s possession and, at the expense of Vendor and in accordance with NPC’s instructions, will promptly deliver to NPC all such NPC Confidential Information and/or Work Product.

14. Remedies

NPC may terminate this Agreement upon written notice to Seller if Seller fails to perform or otherwise breaches this Agreement, files a petition in bankruptcy, becomes insolvent, or dissolves. In the event of such termination, NPC shall pay Seller for the portion of the Services satisfactorily performed and those conforming Goods delivered to NPC through the date of termination, less appropriate offsets, including any additional costs to be incurred by NPC in completing the Services.

NPC may terminate this Agreement for any other reason upon thirty (30) days’ written notice to Seller. Seller shall cease to perform Services and/or provide Goods under this Agreement on the date of termination specified in such notice. In the event of such termination, NPC shall be liable to Seller only for those Services satisfactorily performed and those conforming Goods delivered to NPC through the date of termination, less appropriate offsets.

Seller may terminate this Agreement upon written notice to NPC if NPC fails to pay Seller within sixty (60) days after Seller notifies NPC in writing that payment is past due.

Upon the expiration or termination of this Agreement for any reason: (a) each party will be released from all obligations to the other arising after the date of expiration or termination, except for those which by their terms survive such termination or expiration; and (b) Seller will promptly notify NPC of all NPC Confidential Information or any Work Product in Seller’s possession and, at the expense of Seller and in accordance with NPC’s instructions, will promptly deliver to NPC all such NPC Confidential Information and/or Work Product.

15. Force Majeure

NPC shall not be liable for any failure to perform including failure to (i) accept performance of Services or, (ii) take delivery of the Goods as provided caused by circumstances beyond its control which make such performance commercially impractical including, but not limited to, acts of God, fire, flood, acts of war, government action, accident, labour difficulties or shortage, inability to obtain materials, equipment, or transportation. In the event NPC is so excused, either party may terminate the Agreement and NPC shall at its expense and risk, return any Goods received to the place of shipment without liability for any damages, loss, costs, or expenses incurred by the Vendor, either directly or indirectly, as a result of such termination.

16. Legal Fees

In any action to enforce this Agreement, the prevailing party shall be entitled to recover all court costs and expenses and reasonable legal fees, in addition to any other relief to which it may be entitled.

17. Severability

If any provision of this Agreement shall be deemed to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

18. Limitation of Liability

IN NO EVENT SHALL NPC BE LIABLE TO VENDOR OR VENDOR’S EMPLOYEES, OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, WHETHER OR NOT NPC WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND WHETHER OR NOT THERE IS A FAILURE OF ANY AGREED REMEDY.

19. Assignment; Waiver

20. Nonexclusive Agreement

This is not an exclusive agreement. NPC is free to engage others to perform Services or provide Goods the same as or similar to Vendor’s. Vendor is free to, and is encouraged to, advertise, offer, and provide Vendor’s Services and/or Goods to others; provided however, that Vendor does not breach this Agreement.

21. Notices

Except for Purchase Orders which may be sent by local mail, facsimile transmission, or electronically transmitted, all notices, and other communications hereunder shall be in writing, and shall be addressed to Vendor or to an authorized NPC representative, and shall be considered given when (a) delivered personally, (b) sent by confirmed telex or facsimile, (c) sent by commercial overnight courier with written verification receipt, or (d) three (3) Business Days after having been sent, postage prepaid, by first class or certified mail.

22. Survival of Obligations

Any obligations and duties which by their nature extend beyond the expiration or termination of this Agreement shall survive the expiration or termination of this Agreement.

23. Governing Law

This Agreement shall be construed in accordance with, and disputes shall be governed by, the laws of the Province of Ontario and the federal laws of Canada.

24. Entire Agreement; Modification

This Agreement is the complete, final, and exclusive statement of the terms of the agreement between the parties and supersedes any and all other prior and contemporaneous negotiations and agreements, whether oral or written, between them relating to the subject matter hereof. This Agreement may not be varied, modified, altered, or amended except in writing, including a Purchase Order or a change order issued by NPC, signed by the parties. The terms and conditions of this Agreement shall prevail notwithstanding any variance with the terms and conditions of any acknowledgment or other document submitted by Vendor.

25. Compliance With Laws

This Agreement is the complete, final, and exclusive statement of the terms of the agreement between the parties and supersedes any and all other prior and contemporaneous negotiations and agreements, whether oral or written, between them relating to the subject matter hereof. This Agreement may not be varied, modified, altered, or amended except in writing, including a purchase order or a change order issued by NPC, signed by the parties. The terms and conditions of this Agreement shall prevail notwithstanding any variance with the terms and conditions of any acknowledgment or other document submitted by Seller. Notwithstanding the foregoing, this Agreement will not supersede or take the place of any written agreement which is signed by both parties and covers the same subject matter as this Agreement or its related purchase orders.

25.1 General:

Vendor shall comply fully with all applicable federal, provincial, and local laws in the performance of this Agreement including, but not limited to, all applicable employment, tax, export control, and environmental laws. Without limiting the generality of the foregoing, the Vendor shall be solely responsible for obtaining, at its sole expense, all required permits, licences, authorizations and regulatory approvals applicable to the Good and/or Services provided pursuant to this Agreement. The Vendor shall provide evidence satisfactory to NPC of all required permits, licences, authorizations and regulatory approvals, upon request. NPC shall be entitled to terminate this Agreement in the event that the Vendor fails to comply with any of its obligations in this regard and NPC shall not be liable or responsible for any damages, loss, costs, or expenses incurred, either directly or indirectly, by the Vendor as a result of such termination.

25.2 Hazardous Materials:

If Goods include hazardous materials, Vendor represents and warrants that Vendor understands the nature of any hazards associated with the manufacture, handling, and transportation of such hazardous materials, and shall comply with all applicable legal requirements related thereto.

25.3 Customs:

Upon NPC’s request, Vendor will promptly provide NPC with a statement of origin for all Goods and Customs documentation for Goods wholly or partially manufactured outside of the Canada.

25.4 PCI Compliance

The Vendor shall be solely responsible for ensuring that all aspects of the Goods and/or Services are fully compliant with all applicable Payment Card Industry (PCI) Data Security Standards.

25.5 AODA

The Vendor shall ensure compliance with all applicable requirements of the Accessibility for Ontarians with Disabilities Act (AODA) pertaining to the Goods and/or Services.

26. Injunctive Relief

Vendor acknowledges and agrees that the obligations and promises of Vendor under this Agreement are of a unique, intellectual nature giving them particular value. Vendor’s breach of any of the promises contained in this Agreement will result in irreparable and continuing damage to NPC for which there will be no adequate remedy at law and, in the event of such breach, NPC will be entitled to seek injunctive relief, or a decree of specific performance.

27. FIPPA

The Parties acknowledge that the terms of this Agreement are subject to the Freedom of Information and Protection of Privacy Act (Ontario).