For the purpose of these Terms and Conditions, the term “Supplier” means the Supplier, Contractor, or Vendor listed on the applicable Purchase Order and the term “Company” or “Corporation” means Quebec Iron Ore Inc. as listed on the applicable Purchase Order. The Purchase Order is deemed to be accepted by the Supplier on the earlier of (a) the Supplier issues, signs or delivers to the Company a letter, form or other document acknowledging acceptance of the Purchase Order; (b) any performance by the Supplier under the terms of the Purchase Order; or (c) a period of ten (10) days after receipt of the Purchase Order by the Supplier without the Company receiving written notice of non-acceptance. Quebec Iron Ore reserves the right to revoke or withdraw the Purchase Order, in whole or in part, before it is accepted by the Supplier. By accepting the Purchase Order, the Supplier agrees to comply with the terms and conditions contained herein and any other attachments of the Purchase Order, and to sell the Products (“Products”) and/or to provide the Services (“Services”) as described therein and at the prices set forth in the Purchase Order. Acceptance of the Purchase Order is expressly subject to the terms and conditions contained herein (including attachments of the Purchase Order). No terms and conditions presented by any party in addition to or in any way different than, or inconsistent with, the terms and conditions contained herein or in the Purchase Order, including, without limitation, the Supplier’s standard printed terms and all the terms and conditions contained in any price proposal, invoice, acknowledgment of receipt of order, confirmation, acceptance, bill of lading or any other document from the Supplier, shall be binding on either party unless expressly and explicitly agreed upon in a document signed by duly authorized representatives of both parties.
The Supplier shall provide the Quebec Iron Ore with the goods and/or services at the point of delivery shown on the Purchase Order (the “Delivery Point”) on or before the date indicated or, if no date is indicated, within reasonable time after the Supplier has received the Purchase Order. Time is of the essence for the execution of the order form by the Supplier. The risk of loss of the products lies with the Supplier and the title does not pass to the Company until the products are delivered to the Supplier and have been accepted at the point of delivery. All products and/or services received are subject to inspection and approval by Quebec Iron Ore. Products that are not in good condition, have been damaged during delivery or are rejected by the Company as not conforming to the Purchase Order will be returned to the Supplier, at the option of the Company, and at the risk and expense of the latter, and cannot be replaced by the Supplier without the written authorization of the Company.
The Supplier shall provide the products and services at the prices indicated in the order form. Unless otherwise indicated on the Purchase Order, the Supplier shall invoice the Company for the products and/or services provided within thirty (30) days of their supply. Quebec Iron Ore shall make payment of all undisputed amounts due to the Supplier within forty-five (45) days of receipt of the relevant invoice; however, if an invoice for products is received by the Corporation prior to delivery, the forty-five (45) day period for payment begins only on the date the products are actually delivered to the Corporation. Payment of an invoice does not constitute proof or acknowledgment that the products and/or services are in conformity with the order form.
The prices indicated in the Purchase Order shall not include any value-added tax (“VAT”), goods and services tax (“GST”), sales, service or consumption tax or any similar government tax payable on the supply of goods and/or services (collectively, “taxes on indirect transactions”). If the Supplier is required by applicable laws to levy taxes on indirect transactions and pay them to the appropriate government agency, the Company shall pay to the Supplier an amount equal to the applicable indirect taxes in accordance with the percentages stipulated by applicable laws of the territory where the supply takes place, given that the Supplier first provided the Company with an invoice relating to taxes on indirect transactions that complies with applicable laws. Quebec Iron Ore reserves the right to withhold tax on indirect transactions if it has provided a valid tax exemption certificate to the Supplier. If the Supplier is required to provide services under the Purchase Order and the Supplier is a foreign company (ie. its principal office is located outside of the country indicated on the Supplier’s address on the Purchase Order) or a foreign individual who is a non-resident, then unless the Supplier provides the Company with the valid documentation (received prior to the payment of the services) an exemption applies in the jurisdiction in which the services are rendered, (a) the Corporation reserves the right to withhold the amounts necessary to satisfy the withholding tax obligations in the applicable laws in respect of the services; and (b) the Company will use commercially reasonable efforts to provide the Supplier with receipts, proof of payment or other relevant documentation relating to all withholding taxes so paid. Unless otherwise indicated on the Purchase Order or in any attachments, prices include all delivery charges for products at the point of delivery including, but not limited to, all shipping and handling costs. Transport, duties, charges, tariffs and other similar taxes on imports or exports of goods (the “Customs Duties”), and the Supplier shall be responsible for all such costs and charges and shall pay them. The Supplier shall take all reasonable measures to minimize the costs of Customs Duties.
The Supplier represents, warrants, and acknowledges that: (a) it holds a valid title to the Products and has the right to transfer them free of all liens, hypothecs, reclamations or other charges of any kind; (b) the products conform to specifications and/or standards provided by the Supplier and approved by Quebec Iron Ore, are provided in accordance with applicable laws, and are free from defects in design, materials and workmanship. Such warranties shall be valid for a period of eighteen (18) months from the date the product is transferred to the Corporation as set out in section 2 hereof; (c) the services (if any) comply with specifications and/or standards provided by the Supplier and approved by the Company, are executed in accordance with applicable laws, and are delivered as soon as possible in accordance with the standards of competence, care and due diligence, this guarantee being valid for a period of eighteen (18) months following the date on which the performance of the services is completed; (d) products and services (if any) and their use, manufacture, sale, lease, distribution or other marketing shall not constitute any forgery, misappropriation or infringement of trademarks, service marks, copyrights, patents, patent rights, trade secrets and other intellectual property rights of a third party; and (e) comply with all applicable local, state, provincial and federal laws and regulations. There are no other warranties beyond the warranties set forth above. The warranties provided herein have been stated expressly and specifically, and in lieu of all other warranties expressed or implied; no implied warranties of merchantability or fitness for a particular purpose are given.
If the Supplier fails to comply with the warranties set forth in paragraph 5(b) or 5(c) hereof, the Supplier shall, at the option of the Company and at the Supplier’s expense (including all applicable transportation and labor costs), replace or repair (including, where applicable, re-install) the product or re-deliver the services to the satisfaction of Quebec Iron Ore. Except as provided in Article 9 and Article 10 in the event of a claim for compensation against a party indemnified by a third party alleging that the goods or services have caused him bodily injury or material damages, or an infringement of its intellectual property rights, the remedies set out above in this Article 6 constitute the sole and exclusive remedy available to the Company in respect of the breach of the safeguards provided herein by the Supplier.
In providing the products and services (if any), the Supplier shall: (a) respect, and ensure that its employees, agents, contractors and subcontractors (“Supplier Personnel”), respect all applicable laws and regulations, and (b) if Supplier Personnel are required to enter the site or location of the Company, ensure that such Supplier Personnel (i) comply with the written policies and standards of Quebec Iron Ore in terms of health, safety and the environment which have been delivered to the Supplier and (ii) are aware that they enter the site or the location of the Corporation at their own risk.
Upon receipt of the invoiced amounts received by the Corporation under section 3 hereof, the Supplier waives all rights in respect to any privilege of the builder or supplier of materials or any other privilege, legal hypothec or similar claim against the Corporation or its assets and, at its expense, the Supplier must promptly remove such existing charges from or arising thereafter in respect to the goods or services provided until the date of the relevant invoice. All payments due to the Supplier herein depend on its ability to demonstrate to the Corporation, upon request, that it complies with this provision.
Neither party shall be liable to the other party under the Purchase Order for incidental, indirect or consequential damages, punitive, exemplary or special damages, loss of profits or revenues, loss of profits, loss of goodwill or capital loss (collectively, “Consequential Damages”), except for Consequential Damages resulting from a criminal act, fraud or willful misconduct of a party or Consequential Damages caused by the Supplier for which he is required to be insured under an insurance policy in accordance with Article 11 hereof.
Subject to section 9 hereof, the Supplier agrees to indemnify and hold harmless Quebec Iron Ore, its parents and its affiliates, and their officers, directors, employees and agents from and against any and all claims, losses, damages or prejudice of any nature whatsoever (including, but not limited to, reasonable attorney’s fees) resulting from a failure by the Supplier to the Terms and Conditions of the Purchase Order. The Supplier has no obligation to compensate under Article 10 if the claim or liability is caused by an indemnified party. However, this provision does not release the Supplier from any attribution of fault or apportionment of proportionate, concurrent or other liability imposed by applicable law.
Without limiting the Supplier’s obligations or liabilities hereunder, the Supplier subscribes to and maintains, at its expense, the following insurance: (a) Commercial Liability Insurance covering all personal injury and property damage resulting from services/products and a guarantee limit of $2,000,000 per claim and in total; (B) worker’s compensation insurance in accordance with the applicable laws of each jurisdiction covered by the goods/services; (C) if the Supplier is required to use or supply motor vehicles to supply the goods and/or services, an automobile insurance covering all personal injuries and property damage resulting from the use of such vehicles and providing a guarantee $1,000,000 per claim and in total, and (d) if the Supplier is required to provide advice or provide professional services, professional liability insurance with a limit of coverage of $2,000,000 per claim and in total. The Supplier shall provide coverage endorsements for each required category of insurance, including, except in the case of Workers’ Compensation and Professional Liability Insurance, (i) an endorsement including the corporation and its directors, officers, employees, agents and representatives as additional insured; (ii) an endorsement that includes a reciprocal liability clause, indicating that each party comprising the insured is treated as a separate entity, that the insurance applies as if a separate policy had been issued for each party and that the policy Contains no exclusions “insured against insured”; and (iii) an amendment to waive all express or implied subrogation rights against the Company. The Supplier shall provide to the corporation or the person designated by the Supplier, upon request, certificates of insurance and endorsements that prove that the insurance and endorsements required under the Purchase Order have been taken out.
As part of the execution of the Purchase Order, the Supplier and/or the Company may obtain certain information, verbal or written (in any form) of confidential material (or that should reasonably be regarded as confidential) of the other party relating to the business, affairs or activities of the disclosing party and/or its affiliates (“Confidential Information”). The parties agree, except in the case of a court order, subpoena or other similar legal request, not to make the confidential information of the other party available in any form to a third party or use it for any purpose other than the implementation of the Purchase Order. Each of the parties agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or disseminated by its personnel in violation of the terms and conditions of this Agreement. If the recipient is required to disclose the Confidential Information of the disclosing party by reason of a court order, subpoena or similar legal request, the disclosing party shall be notified promptly by the other party so the disclosing party may apply for an appropriate preventive order. Each party acknowledges that a breach of this section may cause irreparable harm to the other party’s business and that a party’s failure to perform its obligations under this section entitles the other party to request an immediate injunction in addition to all other remedies it may assert.
When performing a Purchase Order, if the Supplier provides the company with a labor product, creative work, technical documents, drawings, specifications, documentation, reports, recommendations or other written materials, information or documents incorporated in a physical medium (“Deliverables”), these will belong to the part identified on the order form. In the absence of such identification, the Company shall be deemed to be the “author” and “owner” of all products to be delivered under applicable copyright laws, and the Supplier agrees to assign and hereby assigns to the Company all intellectual property rights in and to such Deliverables.
Quebec Iron Ore or the Supplier may terminate the Purchase Order by written notice to the other party in the event of material breach by the other party if it is not remedied within thirty (30) days from the date on which notice in writing has been given. Termination hereunder does not affect claims for damages or other rights of the parties.
The Purchase Order is governed by the laws of the Province indicated in the Company’s address on the Purchase Order, excluding the regulation in terms of choice or conflict. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the federal and/or provincial courts of the province as set out in the company’s address on the Purchase Order and to the appeal courts to hear and determine any dispute relating to the order form.
Neither Quebec Iron Ore nor the Supplier shall be liable to the other for any loss or damage whatsoever resulting from a delay of performance or from the non-performance of any contractual obligation set forth in this Purchase Order caused by a natural disaster, war, uprising, rebellion, revolution, usurped power, terrorist activities, nationalization, government sanctions, blockages, embargos, intervention or order of the relevant civil or military authorities, a fire or any other event that cannot be avoided and is beyond the reasonable control of either party which prevents performance of such party’s obligations under this agreement. Both parties shall be prompt in restoring normal conditions, re-establishing schedules and resuming operations as soon as the interruptions have ceased. In the case of an event of force majeure, the party claiming the benefit of the event of force majeure shall, within 48 hours of the occurrence of such event, give the other party written notice thereof, and a description of the full particularities of the event and the cause or causes of the event. The notice shall describe with particularity the actions that the party giving the notice intends to take to resolve the event of force majeure as soon as reasonably possible. In no event, shall the Supplier be entitled to any increase in the price as a result of any event of force majeure. During the duration of force majeure, each party shall bear its own costs resulting from the delay. Force majeure shall not include financial distress, insolvency, bankruptcy, or other similar conditions affecting one of the parties and/or its affiliates and/or subcontractors. Should the affected party be unable to resume performance within 30 days, the non-affected party shall be entitled to terminate this Purchase Order by giving a written notice to the other party confirming its election to terminate this Purchase Order, which termination shall take effect on the date of the delivery of such notice or later on as specified in such notice.
Without Quebec Iron Ore’s prior written consent, the Supplier shall not: advertise, promote, or publish the fact that the Company has contracted to purchase, or requested the performance of services, from Supplier; disclose information relating to the Purchase Order (including the existence thereof); or use the name or mark(s) of the Company or any of its affiliates in advertising, press releases or any other publications or media.
The Supplier shall not assign, delegate or subcontract the Purchase Order or any right thereon, including any performance or amount that may be owing hereunder, without the prior written approval of the Company. The Purchase Order, including these Terms and Conditions and any attachments set forth in the Purchase Order, constitutes the entire Contract relating to the subject matter hereof and supersedes all prior or contemporaneous agreements or representations unless expressly set forth herein. In the event of a conflict, these terms and conditions shall take precedence over any other terms and conditions that may appear elsewhere on the order form (including any appendix to the Purchase Order). No modification of the terms and conditions herein shall be binding on the parties unless it is in writing and signed by both the Company and the Supplier. The waiver by either party of the right to exercise remedies in the event of default or the failure of any party to enforce any of the terms herein at any time does not compromise or limit in any way the right of that party to subsequently require strict compliance with each term herein and does not constitute a waiver of any such right.