Purchase Order Terms and Conditions

1. Entire Agreement

1.1

THE SUPPLIER’S ACCEPTANCE OF ANY ORDER FROM RED RIVER COLLEGE FOR THE SUPPLY OF PRODUCT(S) OR THE SHIPMENT OF ANY PRODUCTS OR COMMENCEMENT OF PERFORMANCE OF ANY SERVICES BY THE SUPPLIER PURSUANT TO A PURCHASE ORDER ISSUED BY RED RIVER COLLEGE SHALL CONSTITUTE THE SUPPLIER’S AGREEMENT TO A BINDING CONTRACT AND THE SUPPLIER’S UNCONDITIONAL ACCEPTANCE BY THE SUPPLIER OF ALL OF THE FOLLOWING TERMS AND CONDITIONS (the “Terms and Conditions”).

1.2

This Agreement, along with terms set out on the face of the relevant Purchase Order, constitutes the entire agreement between the Supplier and Red River College Polytechnic with respect to the subject matter and contains all of the representations, undertakings and agreements of the Supplier and the College. Subject to Article 1.3 herein, this Agreement supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether verbal or written, of the Supplier and the College with respect to the subject matter of this Agreement. The Supplier and the College acknowledge and agree that there are no general or specific warranties, representations or other agreements by or between the Supplier and the College in connection with the entering into of this Agreement or the subject matter of this Agreement, except as specifically set forth in this Agreement. FOR GREATER CERTAINTY, BUT WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE SUPPLIER’S TERMS AND CONDITIONS, IF ANY, ARE OF NO FORCE AND EFFECT AND SHALL NOT BE APPLICABLE IN THE INTERPRETATION OF THIS AGREEMENT.

1.3

The Terms and Conditions apply to each agreement by Purchase Order for the supply of goods, services, materials and/or equipment to the College. HOWEVER, IN THE EVENT THE COLLEGE HAS ENTERED INTO A WRITTEN AGREEMENT FOR THE SUPPLY OF SPECIFIC GOODS, SERVICES, EQUIPMENT AND/OR CONSUMABLES, IN WRITING IN RESPECT OF THE PRODUCTS DETAILED IN THE PURCHASE ORDER, THE TERMS OF THAT SPECIFIC AGREEMENT SHALL GOVERN.

2. Definitions

2.1

“Acceptance” means:

for Equipment forming all or part of the Products, written verification by the College of its inspection and acceptance of the Products;
for Consumables forming all or part of the Products, written verification by the College of its receipt of the Products. However, in the event a Supplier provides to the College a pallet, or any other form of shipping container which contain multiple products, including the Products, Acceptance shall only occur when the College has unpacked such container and provided written verification to the Supplier of their receipt of each Product contained in such container; and
for Software forming all or part of the Products, written verification by the College that the Software has been successfully installed on the College’s computers and/or the Equipment, is fully operating and executing on those computers and Equipment, and the Acceptance Standards applicable to the Software have been complied with.

2.2

“Acceptance Standards” means those specifications, standards and performance requirements for a Product:

as set forth in this Agreement;
as provided by the Supplier to the College in connection with the purchase of the Products;
as set forth in the Supplier’s or manufacturer’s published literature on the Commencement Date;
as required by applicable law; and
the criteria according to good engineering practice as determined by the College, in its sole discretion.

2.3

“Agreement”, refers to these Terms and Conditions, the relevant Purchase Order together with any Schedules attached hereto.

2.4

“College” means Red River College Polytechnic.

2.5

“Confidential Information” means any Supplier related, or College related information, material, documents, data, media, and trade secrets in whatever form and whether given directly or indirectly to the Supplier, in writing or orally or by inspection of processes and whether or not specifically identified as being of a confidential nature, and whether or not disclosed before or after the Commencement Date and includes but is not limited to:

products, processes, technical knowledge, methods, information processing systems, drawings, designs, plans, test reports, samples, devices, demonstrations, software (in source code and object code form), and software documentation;
business and financial information, marketing strategies, supplier and customer lists and related information, sales techniques and policies, pricing, sales and distribution data, and expansion projects;
research, experiments, inventions whether patentable or not, discoveries, developments, improvements, ideas, industrial secrets, and know-how; and
proposed trademarks, trade dress, logos, product names for new or potential products and transition plans for new or potential products.
The Confidential Information includes not only written information, but information transferred orally, visually, electronically, or by any other means, In addition, the term “Confidential Information” shall be deemed to include any notes, analyses, compilations, studies, interpretations, memoranda or other documents prepared by Receiving Party which contain, reflect or are based upon, in whole or in part, any Confidential Information received from Disclosing Party; and
all personal information as defined in the FIPPA and personal health information as defined in the PHIA, collected, used, stored, disclosed to or observed by the Supplier or Supplier’s Staff; but shall not include;
1. the name of the Supplier and the Products supplied by it;
2. information in the public domain; and
3. information that the Receiving Party was lawfully in possession of prior to its disclosure by Disclosing Party to Receiving Party and, the Confidential Information was not acquired, directly or indirectly, subject to any confidentiality agreement or other obligation of secrecy to Disclosing Party.

2.6

“Delivery Location” means the location specified on the Purchase Order.

2.7

“FIPPA” means The Freedom of Information and Protection of Privacy Act (Manitoba).

2.8

“GST” means goods and services tax within the meaning of the Excise Tax Act (Canada).

2.9

“Hazardous Substances” means any substance, waste, product, material or good identified, defined or designated as a hazardous substance or declared to be a contaminant, pollutant, dangerous substance, toxic substance, deleterious substance, waste, special waste, hazardous waste or dangerous good or similar term in or pursuant to any applicable laws or regulations relating to environment, natural resources, safety or health matters.

2.10

“PHIA” means The Personal Health Information Act (Manitoba).

2.11

“Product” and “Products” means the goods described in the Purchase Order and all accessories, whether tangible or intangible, purchased by the College pursuant to this Agreement including any and all equipment, consumable, documentation, software, as well as all intellectual property rights purchased, licensed, or otherwise acquired from the Supplier by the College, and any installation, training, maintenance, construction, labour or other service provided to the College in connection therewith.

2.12

“Purchase Order” means the individual Purchase Order or other form of requisition, in written or electronic form, issued by the College to the Supplier in respect of the supply of Product(s) by the Supplier to the College, as the same may be amended or supplemented from time to time.

2.13

“Software” means any software, computer programs, and machine-readable instructions licensed or sold to the College under the terms of this Agreement, and includes any software which is incidental to the supply, operation and/or maintenance of any Equipment or services forming the Product or which is otherwise embedded in the Product.

2.14

“Supplier” means the individual and/or legal entity engaged to supply or provide the Product or Products as identified in this Agreement and the relevant Purchase Order as well as the Supplier’s employees or contractors.

3. Term

The Term of this Agreement shall be as set out on the relevant Purchase Order unless otherwise terminated in accordance with these Terms and Conditions.

4. Shipping

4.1

The Supplier shall be solely responsible for, and shall prepay, all freight costs, packing costs and insurance costs relating to the delivery of the Products to the Delivery Locations. The Supplier shall pack, protect and maintain at the appropriate temperature, as applicable, all Products in accordance with best practices, having regard to ensuring Product quality, to methods of carriage and handling and to weather conditions likely applicable to the transportation and delivery to the Delivery Locations and the College may reject any Products that are deemed by the College, acting reasonably, to have not been shipped in accordance with the requirements herein.

4.2

The Supplier shall comply with all applicable laws, and all corporate and industry standards respecting the safe and proper handling, transportation, cartage and delivery of the Products and, in the event of any conflict amongst any of them, the most stringent provision shall apply. Without limiting the generality of the foregoing, the Supplier shall ensure that if pallets are used in making deliveries, the Supplier’s pallets must meet all Workplace Safety and Health regulations and the College may reject any pallets that are deemed by the College, acting reasonably, to be a risk to safety to any of the Staff of the College. Without limiting the generality of the foregoing, the Supplier shall ensure that if any of the Products fall within the Transportation of Dangerous Goods Regulations (Canada), as amended from time to time, the Products shall be shipped in an approved container with all required and appropriate markings on the sides thereof.

4.3

Products delivered to the College shall have printed upon it the product code number, the lot number, as well as the description, the expiry date and the quantity of Products delivered. In the event that the Products are equipment, the equipment shall have printed upon it the manufacturer’s name, the model number and the serial number. The shipping documents and invoices shall include the Purchase Order number, the product code number, the model number, the serial number, the description, and the quantity of the Products, as applicable, included in the shipment and related invoice. An itemized packing slip must be included with all deliveries and shall be securely fastened to the outside of any shipping container. In the event an itemized packing slip is not contained with a delivery, the College’s count of quantity will be accepted as final and conclusive.

4.4

Goods imported to Canada by the Supplier and shipped directly to the College shall include in the Canadian Customs form, provided in quintuplicate, sent with the shipment the full description of the contents of the shipment, including, if applicable, the nature of any Product and its attachments and accessories. The Supplier shall provide an Exporter’s Certificate of Origin with the documents provided to the freight carrier.

4.5

The Supplier shall provide the College with all relevant information concerning the safe and proper mode of employment, handling, use, implementation, and maintenance and cleaning of the Products, and such information as may be requested by the College including, as applicable, detailed information about the material composition of a specific Product or changes in the composition of a specific Product, operator/user manuals, Software manuals, education media, and, if applicable, unabridged service manuals, as issued to field and factory service technicians, containing operating instructions, electrical, mechanical and pneumatic schematics, diagnostic codes, commands, and passwords as required for the installation, use, maintenance, troubleshooting, and testing of the Products. The College shall have the full right to duplicate and use all such information, including schematics, drawings, technical documentation, operating instructions, Equipment manuals, Software manuals, maintenance manuals and other information as the College deems appropriate for the use, implementation, maintenance, troubleshooting, and testing of the Products. The Supplier shall provide the College with two (2) complete sets of the said documentation in hard copy and, if available, in electronic format.

4.6

The Supplier shall inform the College, in writing, of any Product containing Hazardous Substances. Each shipment of Products containing any Hazardous Substances shall be labelled as such and shall identify each Hazardous Substance contained therein and shall contain instructions for shipping, safety, handling, exposure and disposal in a form sufficiently clear for use by the College’ non-technical personnel and sufficiently specific to identify all action which the user must take concerning the Hazardous Substance. The Supplier shall fully comply with Workplace Hazardous Materials Information System (“WHMIS”) legislation and/or the regulations thereto, as required thereby, and to cooperate with any of the College’s request for Product data and related requirements. Material Safety Data Sheets (“MSDS”) as defined by the WHMIS legislation and the regulations thereto must accompany all first shipments of Products to the College.

4.7

The College shall not be liable for payment of any goods delivered in excess of the quantities ordered and/or goods rejected for failure to comply with any of the requirements that do not meet the Acceptance Standards, and the Supplier shall pick up such over-shipments or rejected shipments within twenty-four (24) hours following the College’s notification of such shipment. All goods held by the College under this Section 4.7 shall be held at the Supplier’s risk.

5. After Sales Service

5.1

To the extent that the Products include Equipment, and where the College has purchased after sales service including without limitation training, installation, product testing and/or other support, with regard to the proper use, care, and routine maintenance and/or cleaning of the Products (the “After Sale Service”) and where such After Sales Service includes training, the training shall be provided to any of the College’s employees as designated by the College. Such After Sales Service shall be made available to the College as may be agreed to and set out in the Purchase Order and shall be provided at any time before the expiry of the period of 12 months following Acceptance by the College or such other time as may be designated in the Purchase Order.

5.2

Subject only to Article 18 hereof, the College shall have the full right to duplicate, disseminate to its Staff, and use all such information received during After Sales Service that includes training as the College deems appropriate for the enjoyment, use, implementation, maintenance, troubleshooting, and testing of the Products.

6. Title

6.1

Subject always to Section 4.7 and Article 7 of these Terms and Conditions, title, ownership and risk of loss of or damage to the Products will pass to the College upon its Acceptance of the Products.

7. Rejection of Products

7.1

The College shall have 30 days to conduct testing of the Products as the College deems appropriate to determine whether the Products meet the Acceptance Standards or otherwise fail to comply with the terms of this Agreement. The College may reject any and all defective Products or Products which fail to comply with the Acceptance Standards. On or before the expiry of 30 days from Acceptance, the College may notify the Supplier if any of the Products are defective or fail to conform to the Acceptance Standards or otherwise do not comply with the terms hereof. In the event that the Products are defective or fail to conform to the Acceptance Standards, the College may, at their option, acting in their absolute discretion, require the Supplier to provide replacement Products or to rectify any such defects or failure by providing written notice of its rejection. The Supplier shall have 20 days from such notice to rectify such defects to the College’s satisfaction acting reasonably. In the event that rectification does not occur to the College’s satisfaction, the College shall return the Products to the Supplier at the Supplier’s sole expense and risk pursuant to Article 8 of this Agreement.

7.2

Acceptance shall not prejudice any rights of the College under this Agreement or in law in respect of defective Product, regardless of any verification of Acceptance or other document executed by the College. The making or failure to make any inspection of, or payment for, the Products covered by this Agreement shall in no way impair the College ’s right to reject non-conforming or defective Products, nor be deemed to constitute Acceptance by the College of the Products, nor affect in any way the Supplier’s obligations under this Agreement nor the Supplier’s liability for Products that are defective or fail to meet the Acceptance Standards or from any consequences resulting therefrom, notwithstanding the College ’s opportunity to inspect the goods or services, the College’s knowledge of the non-conformity or defect, its substantiality or the ease of its discovery, nor the College’s earlier failure to reject any Product.

8. Return of Products

8.1

Products delivered in error, unauthorized late deliveries and unordered Products will be returned to the Supplier, and Products rejected, defective Products and Products not in accordance with the Acceptance Standards may be returned to the Supplier, at the Supplier’s sole expense and risk. If the Supplier does not provide return instructions within a reasonable time after being requested to do so, the College may dispose of those Products, as it deems appropriate, at the Supplier’s sole expense and risk and the College shall have no liability or responsibility to the Supplier whatsoever in that regard. Return of Products shall not prejudice any other right or remedy available to the College with respect to those Products.

8.2

The Supplier shall refund to the College any money paid for returned or rejected Products or, upon request from the College, credit that amount to the account of the College within thirty (30) days of the date upon which the College notifies the Supplier of its return of or refusal to accept the Products. The refund or credit for Products returned under this Article 8 shall not be subject to any re-stocking or similar charge unless the delivery of the Products by the Supplier was a direct result of an error made by the College, in which case the Supplier may apply a restocking fee or similar fee to the refund or credit up to a maximum, for all such fees, of 10% of the purchase price of, not including GST or Manitoba retail sales tax, as applicable to, such returned Products.

9. Custom Packaging and Products

9.1

In the event a Product is custom or has custom packaging as required by the College, the College shall not be responsible for the Supplier’s maintenance of an inventory of that Product or that Product’s custom packaging greater than the typical three (3) month order of that Product by the College.

10. Warranty

10.1

The Supplier, at its expense (including the expense of removal, packing, transportation and reinstallation) shall promptly, at the option of the College, acting in their sole discretion, either repair or replace any Products furnished to the College which, within twelve (12) months after Acceptance, fail to conform to the Acceptance Standards or to the requirements of this Agreement. In the event that the College opts for the Supplier to repair the Products, the Supplier shall take all reasonable steps to minimize the College’s inconvenience and interruption of operations during the repair of the Products.

10.2

Products that are repaired or replaced by the Supplier pursuant to this warranty shall be warranted, according to the terms hereof, to the end of the later of the remainder of the twelve (12) month period after Acceptance or for an additional six (6) months from the date of the repair or replacement.Notwithstanding the right of the College to opt for the repair of any Products pursuant to this warranty, within twelve (12) months after Acceptance, the Supplier must either replace, any Product that has required two previous repairs, or accept the return of the Product in accordance with Article 8 hereof, as determined by the College, acting in their sole discretion. The Supplier shall at all times be liable for and shall reimburse the College for repairs made by the College to correct a failure to meet the warranty herein where the Supplier has been given notice of the failure and thereafter has failed to take prompt and effective action to correct the failure in accordance with the foregoing. Should any component of a system supplied by the Supplier fail to function, causing a dysfunction in that system, the warranty period for that system shall be extended for a period equal to the time that the dysfunction existed. Any repair work by the College to the Products shall not void or diminish any Product warranty, provided that in the event the College damages the Product in conducting such repairs, the Supplier shall not be responsible to repair such damage, or shall repair such damage, at the request of the College, at the College’s sole expense.

10.3

The above warranties are in addition to all other warranties as may be express or implied at law or in equity. In the event this Agreement provides for a warranty more favourable to the College, the more favourable warranty shall apply.

10.4

Immediately following the repair or replacement of any of the Products, regardless of when or where the service is performed, the Supplier shall provide the College with a detailed service report including the Products serial number and/or model number, the problem identified, parts serviced or replaced, materials used, the labour costs and the parts costs to repair or replace the Product. If the repair or replacement is to be conducted at any site of the College, the Supplier shall notify the College in advance of any service calls and the College may choose to have a member of the Staff present while the service work is performed. The Supplier acknowledges and agrees that the detailed service report or any reports created thereof shall not be considered to be Confidential Information and shall not be subject to the obligations of Section 18.1 hereof.

11. Third Party Warranties

11.1

The Supplier, if a distributor of the Products, hereby assigns to the College such assignable rights as the Supplier may have under any and all manufacturers’ and other warranties provided with respect to the Products. To the extent that such rights cannot be assigned to the College, the Supplier shall at the direction of the College exercise such rights on behalf of the College.

12. Payment

12.1

All Product invoices that are mailed, in duplicate, to the College or provided to the College in such other manner (i.e. electronic invoices), as may be agreed to in writing by the College, shall be sent to the College at the address(es) detailed in this Agreement. A separate invoice must be issued for each shipment.

12.2

Invoices may only be submitted to the College’s accounts payable department after delivery of the Products. The College shall pay all non-disputed invoiced amounts within forty-five (45) days of receipt of invoice in proper form, or in such other time period as agreed to by the Parties in writing. The College shall not be subject to interest charges, penalties or late payment fees for payments made within forty-five (45) days of receipt of an invoice received in accordance with this Agreement. Interest charges, penalties or late payment fees for payments made after forty-five (45) days of receipt of an invoice shall in no event exceed, in aggregate, the equivalent of 5% per annum, compounded annually, not in advance, and the College shall only be liable to pay for same if the College has previously agreed, in writing, to such charges and fees. Upon the request of the College, the Supplier shall provide all information necessary, in any form required by the College, to facilitate the payment of the Supplier’s invoices by means of electronic funds transfer.

12.3

All amounts invoiced to the College by the Supplier shall be in accordance with this Agreement and the College’s policies, as may be enacted or amended from time to time, and shall separately identify all duties, brokerage fees, taxes and levies, where applicable, which are levied or imposed in connection with the supply of the Products. The Supplier shall not be entitled to receive, and shall not invoice the College for, any fees, costs, charges or surcharges, out-of-pocket expenses, not included in this Agreement, including 1) any transportation or handling charges (F.O.B. Delivery Locations), minimum order charges, duties and brokerage fees, unless they have been pre-approved by the College in writing or 2) any travel expenses related to the provisions of the Products, unless they have been pre-approved by the College in writing and are in accordance with the College ’s Business and Travel Expense Policy. The Supplier shall be responsible to pay all government assessments including income tax, employment insurance relating to the Supplier and its Staff, workers compensation and Canada Pension Plan relating to the Supplier. Any Products supplied by the Supplier outside the scope of the Products agreed to by the College and without the prior written consent of the College shall be deemed gratuitous on the Supplier’s part, and the College shall have no liability with respect to such Products.

12.4

Unless otherwise directed by the College, each of the Supplier’s invoices shall include:

the College’s name and the Purchase Order number;
the itemized prices for Products covered by the invoice, in Canadian Funds, exclusive of Federal Goods and Services Tax (GST) and Manitoba Retail Sales Tax (PST);
any applicable taxes;
invoices related to a period of time or a point in time shall be rendered within fourteen (14) days of the end of the period of time or the occurrence of the point in time, as the case may be;
all charges and credits are to be itemized and shown on the invoice; and
if required by the College, the Supplier shall provide such supporting vouchers, statements, receipts, time logs and any other information as requested;

12.5

Invoices shall not be rendered prior to the date that the applicable Products have been delivered to the Delivery Locations. Delays in receiving invoices, errors or omissions in the invoices shall be considered just cause for withholding payment without loss of cash discount privileges.

13. Representations, Warranties and Covenants of the Supplier

13.1

The Supplier hereby represents and warrants to and covenants with the College as follows:

the Supplier has all necessary power and authority to enter into this Agreement and the necessary personnel, skills, expertise, and experience to provide the Products;
the Supplier fully understands all of the requirements of the College, including the Acceptance Standards and the Supplier will be able to satisfy these requirements;
this Agreement is enforceable against the Supplier in accordance with its terms;
the execution, delivery and performance of this Agreement will not violate, nor be in conflict with, nor constitute a default under, any contract, agreement or undertaking (whether verbal or written) to which the Supplier is a party, or by which it is bound or under any judgment, decree, order or law applicable to the Supplier;
the Supplier has all right and title to the Products, free and clear of any charges, liens, encumbrances, security interests and other interests and the College shall acquire title to the Products free and clear of any charges, liens, security interests, encumbrances or other interests;
to the extent that the College will require use of the intellectual property rights of any third party in connection with the Products, the Supplier, at its sole expense, has obtained from the third party all necessary licenses, consents or assignments of those intellectual property rights for the benefit of the College;
the Products comply with, and the Supplier, in the performance of this Agreement shall comply with, all applicable laws, ordinances, rules and regulations, including The Workplace Safety and Health Act (Manitoba) and any amendments or replacement thereto and all acts for the protection of the environment applicable in the Province of Manitoba;
the Supplier possesses all applicable permits, licences, authorizations and regulatory approvals necessary in connection with the sale and use of the Products to and by the College;
the Products will be new, and will conform with the Acceptance Standards and with all written specifications, drawings, and other descriptions of the manufacturer thereof and will be of merchantable quality, fit and sufficient for the purposes for which they are intended, of good materials, design and workmanship, free from defects, and will fulfill satisfactorily any operating conditions specified in this Agreement;
the Products have received all applicable certifications and approvals, including those related to the use of the Products as intended by the College and be labelled accordingly, from the Canadian Standards Association, and/or any other organization that licenses or certifies the Products,
the Products are free of Hazardous Substances, except for those Products which the Supplier has informed the College contain Hazardous Substances in accordance with Section 4.6;
service support and new parts required to service the Products shall be available until the later of the period of seven (7) years following the effective date of this Agreement or following the last date of productions of the Products, and the Supplier shall provide the College with a minimum of twenty-four (24) months written notice in advance of the date when parts shall no longer be available for the Products and/or of the date of the Products’ end of support by its manufacturer;
all parts ordered to service or repair the Products shall be expedited, with no delays or surcharges imposed by the Supplier;
the Supplier shall provide new parts only to service or repair the Products;
the Supplier, its agents and representatives have:
1. not offered gratuities (in the form of entertainment, gifts or otherwise) to the College or the Staff of the College, or any other person connected to the College, with a view toward securing this Agreement or securing favourable treatment with respect to the awarding or amending, or the making of any determinations with respect to the performing of, this Agreement, nor has the Supplier directly or indirectly, paid any fee for the solicitation, negotiation or obtaining of this Agreement to any person other than an employee of the Supplier acting in the normal course of the employee’s duties; and
2. have disclosed all payments or transfers of value to the College or to any of its Staff.
to the extent the Products include services, the services will:
1. be performed in a conscientious and professional manner, with reasonable skill, care and diligence, in accordance with industry standards;
2. be performed by employees, contractors or agents who are qualified and competent and have the appropriate skills and experience to perform the duties assigned to them;
3. be performed by employees, contractors or agents with proper training, equipment and all other things necessary to perform the services assigned to them and under proper supervision;
4. only be performed while the Supplier is in compliance with applicable worker compensation requirements in respect to the Supplier’s employees, or permitted subcontractors and the Supplier shall provide, at the request of the College, satisfactory written evidence of all required Worker’s Compensation Board of Manitoba coverage; and
5. be performed in a consultative manner with the College and to the full satisfaction of the College.
in respect of Software only:
1. the Supplier has the necessary intellectual property rights and interests required to perform its obligations hereunder and to provide the College with all rights or licenses referred to herein;
2. the Supplier has provided to the College all keys, authorization codes and other devices and information required in order for the Software to be installed, operating and executing successfully, and the Software does not contain any back door, time bomb, drop-dead device or other software routine, code or design designed to disable the software automatically, with the passage of time or under the positive control of any person other than the College;
3. the Software shall be free from any computer code or programming instructions that are constructed with the ability to damage, interfere with or otherwise adversely affect computer programs, the data files or hardware without the consent or intent of the computer user, including self-replicating and self-propagating programming instructions commonly called “viruses”, “trojans”, “malware” and “worms”;
4. any compact disks or any other computer storage media on which the Software is supplied will be free from defects in design, material and workmanship under normal use, and will perform in compliance with published specifications;
5. the Software will meet any requirements for such Software as are identified by the College; and
6. the Supplier shall provide the College, for the life of the Products, at the Supplier’s sole expense, all Software which is corrective in nature, which has been initiated to correct software errors, to meet regulatory requirements, or for safety reasons or which enhances existing Software features and which is generally made available to the Supplier’s customers.

13.2

The above representations and warranties are in addition to all other warranties as may be express or implied at law or equity. The representations shall be true and correct during the entire term of this Agreement and shall survive the expiry or early termination of this Agreement until all of the obligations of the Supplier hereunder have been fulfilled.

14. Indemnity

14.1

Notwithstanding any other provision of this Agreement to the contrary, the Supplier shall be liable to the College, and shall indemnify, hold harmless and defend the College, it’s Officers, Directors, Employees, and agents (collectively, the “Indemnitees”) from and against, any and all liabilities, obligations, losses, claims, proceedings, demands, suits or actions, fines, penalties, costs, damages and expenses whatsoever (including legal fees) which may be brought or made against the Indemnitees (including claims by third parties), which the Indemnitees may sustain, pay or incur as a result of or in connection with:

any breach or non-observance of any covenant, representation, warranty, agreement, term or condition applicable under this Agreement by the Supplier, its officers, employees, agents, or subcontractors or any other party for which the Supplier is responsible at law including any breach or nonobservance of any applicable law;
injury to or death of any persons (including employees of Indemnitees or the Supplier) or from damage to or loss of any real property and tangible personal property (including the property of the Indemnitees) to the extent arising, directly or indirectly, out of the performance or failure to perform by the Supplier of its obligations under this Agreement or caused out of any wilful or negligent acts, errors or omissions of the Supplier, its officers, employees, agents, or subcontractors or any other party for which the Supplier is responsible at law;
contamination, pollution, or public or private nuisance arising, directly or indirectly, out of the performance or failure of the Supplier to perform its obligations under this Agreement or out of any act or omission of the Supplier whatsoever; and
any violation or infringement of rights in any patent, copyright, proprietary information, trade secret or other property right caused or alleged to be caused by any of the Products or any Software, goods, materials, equipment, methods, processes, designs or information furnished by the Supplier, its officers, employees, agents, or subcontractors or any other party for which the Supplier is responsible at law (in this Section, a “Furnished Good”) or the use or disclosure thereof, unless such violation or infringement results from any modification, use or disclosure of the Furnished Good by the Indemnities in a manner not authorized, permitted or recommended by the Supplier, except to the extent arising out of the negligence or wilful misconduct of the Indemnities and provided that:
the Indemnities shall notify the Supplier, within a reasonable amount of time and not later than 6 months after it becomes aware, of a potential third party claim;
upon receipt of a notice of a potential claim, in accordance with subsection 14.1(e), the Supplier shall have the right to assume and control the defence and to manage any third party claims and the Indemnitees shall cooperate fully with the Supplier in such defence; and
the Indemnitees shall not settle any third party claims, without the prior written consent of the Supplier, which may be withheld, if the settlement does not include a full and final release of all liability of the Supplier.

14.2

To the extent that the Products include services, in the event that the services are not provided within a specified time as set out in this Agreement, the Supplier agrees that damage will be sustained by the College and it will be impractical and extremely difficult to ascertain and determine the actual damage that the College will suffer in the event of and by reason of such delay. The sum set forth as liquidated damages is not a penalty but an estimate of the cost to the College for the costs that will accrue after the specified time limit. It is agreed by the Parties that liquidated damages shall be 1/60^thof the cost of the Products set out in this Agreement for every day and this sum represents a reasonable estimate of actual damages per day. The Supplier therefore agrees to the College deducting, from this Agreement payments, the sum set for as liquidated damages for each additional calendar day required to complete the delivery of the Products after the specified time limit.

14.3

In the event that the Supplier cannot supply any or all of the Products within a specified time as set out in this Agreement, the Supplier shall provide Product(s) from an alternate source at the same agreed price or to reimburse the College for any additional costs resulting from the purchases required by the College of reasonable quantities made directly from another Vendor.

14.4

In the event that any indemnity provisions in this Agreement are contrary to applicable law, the indemnity obligations hereunder shall be construed to apply to the fullest extent allowed by applicable law.

14.5

Notwithstanding anything contained in this Article 14, the College shall not be liable to the Supplier or its officers, employees, agents, or subcontractors, for any injury, death or damages to or loss of property of the Supplier or its officers, employees, agents, or subcontractors.

14.6

This Article 14 shall survive the expiry or early termination of this Agreement.

15. Consequential Loss & Limitation of Liability

15.1

In no event shall either Party be liable to the other Party for any special, indirect, special, incidental, remote or consequential loss or damage, loss of profit or expected profit, loss of goodwill, business interruption, lost business, punitive damages or exemplary damages, incurred or suffered by the other Party regardless of awareness of the other Party of such damage or loss and regardless of cause, whether in contract, warranty or tort, including negligence.

15.2

The applicable limitations, exclusions and disclaimers set out in this Article 15 shall apply irrespective of the nature of the cause of action, demand or claim, including but not limited to, breach of contract, tort (including negligence) or any other legal theory and shall survive termination of these terms and conditions, a fundamental breach or breaches and/or failure of the essential purpose of these terms and conditions or any remedy contained herein.The allocations of liability in this section represent the agreed and bargained for understanding of the parties and the Supplier’s compensation reflects such allocations.

16. No Reliance

16.1

The College shall not be liable for any loss, liability, cost or claim suffered or incurred by the Supplier as a result of the Supplier’s reliance in any way upon any information or data supplied to the Supplier by the College unless specifically contained in this Agreement. The Supplier shall be solely responsible for checking, verifying and validating the accuracy, sufficiency and completeness of any information or data supplied to the Supplier by the College, unless specifically contained in this Agreement.

17. Insurance

17.1

The Supplier obtain and maintain in force until two (2) years after the completion of its obligations under this Agreement (including any warranty period) insurance of the following types, with limits not less than those set forth below as may be applicable:

In the event that the Purchase Order includes the purchase of installation services or other services which require the Supplier to provide the services on any College Premises, Workers’ Compensation Insurance including occupational illness or disease coverage, where required by the laws of the nation, state, territory or province having jurisdiction over the Supplier’s employees, and in respect of Products requiring any of the employees of the Supplier to attend to the premises of the College, coverage of its employees through the Worker’s Compensation Board of Manitoba;
Comprehensive General Liability Insurance with a minimum combined single limit of liability of $5,000,000 for each occurrence covering death, bodily injury, property damage, personal injury, advertising injury, products and completed operations liability including Broad Form Products liability and completed operations with a Products Recall extension. Such policy shall have cross liability coverage, completed products and operations coverage on terms acceptable to the College and a general aggregate limit of not less than $5,000,000. The College shall be named as additional insured on all comprehensive general liability insurance policies of the Supplier;
Automobile Liability Insurance covering use of all owned, non-owned and hired vehicles;
errors and omissions liability insurance with a minimum combined single limit of liability of $5,000,000 per occurrence, if the Supplier provides services or training in connection with, or as part of the Product being supplied and if the Products, to the extent that they include services provided by professional staff who are working in the professional capacity are covered against professional liability for a minimum amount of $5,000,000 per occurrence or claim, through their membership in a professional association or by a separate liability insurance policy satisfactory to the College;
if the Supplier will utilize tools, equipment and personal vehicles in the performance of its services under this Agreement, Equipment Floater Insurance (Tools and Equipment Insurance) covering physical damage to or loss of all major tools and equipment, construction office trailers and their contents, and vehicles shall be insured for business use, all of which the Supplier is responsible, throughout the course of the performance of its obligations under this Agreement;
if the Supplier performs any operation using or involving Hazardous Substances in connection with the Product, Hazardous Substances (pollution) liability insurance covering death, bodily injury and property damage of $5,000,000 for each occurrence and, in the aggregate;
in the event that the Supplier transports or hauls Hazardous Substances in connection with the Product, insurance covering death, bodily injury and property damage arising from transporting or hauling Hazardous Substances with limits of no less than $5,000,000 for each occurrence and, in the aggregate; and
In the event that if the Supplier performs any installation or construction services in connection with the Product, Builder’s All Risk insurance covering the risk of loss to property that is in the course of construction or which has been delivered to the site for incorporation into the work of the Supplier.

17.2

The Supplier hereby releases the College, its affiliates and their respective officers, directors, agents, employees, licensees and invitees, and shall cause the Supplier’s insurers to waive any rights of subrogation and cross claims against the released Parties, for losses or claims for death, bodily injury, property damage or other insurance claims arising out of the Supplier’s performance of this Agreement. The foregoing insurance shall provide a severability clause to the effect that a breach by one insured will not adversely affect the coverage of the other insureds.

17.3

Prior to the Supplier providing any Products in the event that the College requests, the Supplier shall provide College with Certificates of Insurance satisfactory in form to the College evidencing that the above insurance is in force, that all premiums due and owing have been paid by the Supplier, that not less than thirty (30) days written notice will be given the College prior to any cancellation or restrictive modification of the policies, that the waivers of subrogation and severability clauses are in force, and that all levies, assessments and penalties made against the Supplier pursuant to The Workers Compensation Act (Manitoba) have been paid by the Supplier. The Supplier shall also provide with the Certificates of Insurance executed copies of any additional insured endorsements required in this Agreement.

17.4

The foregoing insurance coverage shall be primary and non-contributing with respect to any other insurance or self insurance which may be maintained by the College. The fact that the Supplier has obtained the insurance required in this Article 17 shall in no manner limit or qualify the Supplier’s other obligations or liabilities set forth in this Agreement. By requiring the foregoing minimum insurance coverage, the College is not representing that such amounts or types of insurance are adequate to cover all possible claims or losses that the Supplier may suffer and the College expressly disclaims such a representation. The Supplier acknowledges and agrees that it is its sole responsibility for determining the adequacy of its insurance coverage.

18. Confidentiality

18.1

While this Agreement is in effect and at all times thereafter, except with the other Party’s express prior written consent, which consent may be arbitrarily withheld, a Party hereto shall:

hold, and shall cause its Staff to hold, all Confidential Information of the other Party in strict confidence;
not use the Confidential Information of the other Party other than for the performance of its obligations under this Agreement, and in the case of the College , in connection with its consumption, enjoyment, use, service or maintenance of the Products;
not disclose the Confidential Information of the other Party to anyone other than any of its Staff and then only to the extent that the Confidential Information is directly required to be disclosed in order for the Party to properly perform its obligations pursuant to this Agreement and in the case of the College , in connection with its consumption, enjoyment, use, service or maintenance of the Products;
except as otherwise permitted under this Article 18, not disclose the Confidential Information of the other Party to any third party;
implement reasonable physical, technical and administrative measures to protect the privacy and security, availability and integrity of the Confidential Information of the other Party and comply with all reasonable physical, technical and administrative measures to protect the privacy and security, availability and integrity of the Confidential Information of the other Party;
ensure that its Staff are aware of their obligations with respect to Confidential Information of the other Party; and
only collect, access, use, and disclose the minimum Confidential Information of the other Party necessary to perform the Party’s obligations contemplated by this Agreement and in the case of the College , in connection with its consumption, enjoyment, use, service or maintenance of the Products.

18.2

The Supplier shall at all times comply with the applicable provisions of all privacy laws (including the PHIA and FIPPA), regulations and as well as policies and directives issued by the College relating to privacy and information security which are now, or at anytime in the future become, applicable to the Supplier or to the Confidential Information. The Parties acknowledge that for the purposes of the PHIA and FIPPA, the Confidential Information of the College remains under the ownership and control of the College.

18.3

The Supplier shall immediately return to the College or destroy, as directed by the College, all Confidential Information of the College, including all copies thereof, upon the earlier of a) after the Supplier no longer needs the Confidential Information to perform its obligations pursuant to this Agreement; b) upon the request of the College. The Supplier shall take all necessary and required steps to ensure that all copies of all Confidential Information, whether or not incorporated in other programs, data compilations, or otherwise intermingled with data not subject to this Agreement, shall be removed from all electronic data systems and storage media. If the College requests the destruction of the Confidential Information, then the Supplier shall provide certification in writing that all copies thereof have been destroyed in a manner which protects the confidential nature thereof.

18.4

In the event that the Supplier receives or is notified of any rule, order, document or legal proceeding requiring it to disclose Confidential Information of the College, it shall immediately notify the College of same.The Supplier shall cooperate with the College as reasonably necessary to help the College obtain a protective order or other appropriate remedy to protect and prevent the disclosure of its Confidential Information.

18.5

With regard to the Confidential Information of the College, the Supplier shall immediately notify the College of any release or disclosure of Confidential Information that is contrary to the provisions of this Agreement; any request to access any of the Confidential Information, or any notice of an investigation from any private or public body. The Supplier shall cooperate with the College’s investigation or response to such situations.

18.6

Nothing in this Agreement obligates the College to disclose any particular Confidential Information, personal information or personal health information to the Supplier.

18.7

The Supplier acknowledges that its failure to comply with the provisions of this Article 18 may cause irreparable harm to the College entitling the College to seek immediate injunctive relief, in addition to any other remedies to which it may be entitled.

18.8

This Article 18 shall survive the expiry or early termination of this Agreement.

19. No Conflicts

19.1

The Supplier shall not provide the Products to any other person, firm, corporation or organization in any manner which might interfere or conflict with the Supplier’s obligations or undertakings under this Agreement. The Supplier declares that it has no financial interest in the business of any third party that would cause either an actual or perceived conflict of interest in the carrying out of the work. Should such an interest be acquired during the term of this Agreement, the Supplier shall declare it in writing immediately to the College. The College shall, in its sole discretion, take whatever action it deems necessary, including termination of this Agreement.

20. Intellectual Property

20.1

If, as a result of any proceeding, suit or action, the sale or use of any Product is enjoined by court order, or, should any Products be the subject of a claim of infringement of a patent, copyright, trademark, registered industrial design, confidential information, trade secret or other intellectual property right, the Supplier shall at its expense, at the College’s option either:

procure for the College the right to continue using the Product;
replace or modify the Product with functionally-equivalent goods (subject to the College ’s approval and satisfaction in its sole discretion for any reason or no reason), provided that any such modification or replacement is of equal or better quality and provides equal or better performance to the infringing Product; or
Return to the College the purchase price for any Product that the College is unable to make use of due to the infringement claim and reimburse the College for any associated costs and expenses.

20.2

Where the Products contain or include Software, the Parties shall enter into a separate licence agreement, on terms and conditions acceptable to the College, which grants a licence to the College to use the Software. Where Parties have failed to enter into such a licence agreement, then in addition to the other provisions of this Agreement the following shall apply:

the Supplier hereby grants to the College an irrevocable, world-wide, perpetual and fully paid up licence for the College and its Staff to use the Software (whether on or in conjunction with Equipment or otherwise, as applicable) for its internal business purposes;
there are no restrictions on the number of persons authorized to use the Software or on the locations or computers in or on which the Software may be installed and operating, except as may be set out in the Purchase Order;
the Software shall operate in accordance with its published specifications including the Acceptance Standards applicable to the Software and the specifications set out in the Documentation for the Software;
the College may make copies of the Software up to the number of copies specified in the Purchase Order (if any) and may also make a reasonable number of copies to be used solely for backup and archival purposes; and
the College shall not reverse assemble or reverse engineer the Software, and shall retain all copyright and other proprietary notices that may be part of or accompany the Software.

21. Work Product

21.1

The Parties agree that:

title to all information, working papers, documents and materials, reports, work-in-progress, data research, drawing, designs, plans, photographs and all other material created, discovered, developed or performed by the Supplier during the course of providing the Products, and all intellectual property rights therein (in this Section collectively the “Work Product”), shall vest in the College. The Supplier shall promptly disclose to the College all intellectual property rights in the Work Product as and when created. The Supplier conveys and assigns to the College, free and clear of all charges, liens, encumbrances, security interests or other interests, all right, title and interest (including any copyright) in all Work Product and shall execute or cause to be executed any additional documents required to evidence same, including unconditional and irrevocable waivers of all moral rights. During this Agreement and at all times thereafter, the Supplier or its Staff shall not use, publish, or disclose the Work Product without first obtaining the written consent of the College.
Any equipment, material and supplies provided by the College for use by the Supplier in the provision of the Products or the performance of this Agreement shall remain the property of the College and shall be returned without cost upon request.

22. Termination for Cause

22.1

In the event that the College believes, in its reasonable opinion, that:

the Supplier fails to perform it obligations in accordance with terms of this Agreement;
the Products are unsatisfactory or inadequate and the College has rejected the Products pursuant to this Agreement;
there has been an unauthorized price increase;
there had been an interruption of supply and availability of the Products;
there is a deterioration in the quality of the Products supplied;
there is inadequate sales and technical support;
the Products are inadequately labelled;
the Products have an unacceptable shelf life or expiration dates; or
the Supplier fails to provide the documentation as required under this Agreement;

and if such situation continues for fifteen (15) days after written notice from the College to the Supplier to remedy the situation or perform as required, the College, without prejudice to any other right or remedy, may terminate this Agreement, in whole or in part, on notice to the Supplier.

22.2

In the event that the Supplier or any of its affiliates becomes dissolved, insolvent or bankrupt or any proceeding in bankruptcy, receivership or liquidation is initiated against the Supplier or any of its affiliates and is not dismissed within thirty (30) days; or if the Supplier or any of its affiliates makes an assignment, compromise, or arrangement or if for the benefit of its creditors or it files a petition or other proceedings in bankruptcy or for protection from its creditors; or if a receiver or trustee in bankruptcy is appointed over all or any of its assets or business; or if any of any creditor of the Supplier attempts to garnish or attach or does garnish or attach any of the funds paid by the College, the College may in their sole and unfettered discretion, by written notice to the Supplier, terminate this Agreement, in whole or in part, without prejudice to any other rights or remedies to which the College may be entitled.

22.3

In the event that the Supplier fails to secure or renew any licenses, permits or authorizations, required by any applicable statue, regulation or by-law, or if secured and renewed, such license or permit is revoked or suspended; or if the Supplier or any of its Staff engage in activities or trade practices which, in the reasonable opinion of the College , are prejudicial to its interests; or if the Supplier or any of its Staff is found guilty of an indictable offence; or if technological changes, changes in legislation, changes in clinical procedures or practice by the College warrant same, the College may in its/their sole and unfettered discretion, by written notice to the Supplier, terminate this Agreement, in whole or in part, without prejudice to any other rights or remedies to which the College may be entitled;

22.4

In the event that it is found that the Supplier is in breach of section 13.1 (o) above, including but not limited to, the offering of gratuities (in the form of entertainment, gifts or otherwise) by the Supplier, or any agent or representative of the Supplier to any officer, director, employee or contractor of the College, their Staff or any other person connected to the College, with a view toward securing this Agreement or securing favourable treatment with respect to the awarding or amending, or the making of any determinations with respect to the performing of, this Agreement or that the Supplier, directly or indirectly, paid a fee for the solicitation, negotiation or obtaining of this Agreement to any person other than one or more of the Supplier’s employees acting in the normal course of their employment, or by failing to disclose all payments or transfers of value by the Supplier to the College or to any of its Staff, the College may in its sole and unfettered discretion, by written notice to the Supplier, terminate this Agreement, in whole or in part, without prejudice to any other rights or remedies to which the College may be entitled.

22.5

Upon termination of this Agreement pursuant to this Article 22:

the Supplier shall deliver or assign to the College any work in progress that the College may require; and
the College shall pay the Supplier the portion of the price for all Products that have been accepted by the College prior to the effective date of termination, as determined by the College acting reasonably, subject to any right of setoff available to the College.

23. Termination for a Change in Practice

23.1

In the event that the College adopts a practice change which does not require the Products, the College shall have the right to terminate this Agreement, in whole or in part, for its convenience on a minimum of ninety (90) days advance written notice to the Supplier. On the date of termination stated in the notice, the Supplier:

shall discontinue all Product delivery and related services pursuant to this Agreement;
shall place no additional orders with its suppliers in relation to this Agreement;
shall preserve and protect materials on hand purchased for or committed to this Agreement, work in progress and completed work both in the Supplier’s and its supplier’s facilities, pending the College ’s instructions, and shall dispose of same in accordance with the College ’s instructions;
immediately take all possible action to mitigate any loss incurred by it as a result of the termination and take all other action as reasonably required by the College in relation to the termination.

23.2

Upon termination of this Agreement pursuant to this Article 23:

the Supplier shall continue to deliver to the College any Products or Services pursuant to this Agreement to the termination date; and
the College shall pay the Supplier the portion of the price for all Products that have been accepted by the College up to the effective date of termination, subject to any right of setoff available to the College and
subject to Section 23.3 below, the College shall pay to the Supplier reasonable and necessary expenses directly resulting from the termination pursuant to this Article 23, all as substantiated by documentation satisfactory to and verified by the College.

23.3

Notwithstanding anything to the contrary herein contained the College shall not be obligated to make any termination payment to the Supplier on account of the Supplier’s inventory of the Product(s) on hand; provided that, if the Supplier is maintaining an inventory of a Product that is custom packaged, the College shall purchase from the Supplier its inventory of that Product to the extent that the inventory is not in excess of the College’s average ninety (90) day requirements of that Product from the Supplier.

23.4

The Parties hereto acknowledge that the College entered into this Agreement in reliance upon, and on the understanding that, it has the right to terminate this Agreement at its convenience as set out herein.

24. Force Majeure

24.1

Neither Party shall be liable for failure to perform any of its obligations under this Agreement, if and to the extent its performance is prevented, hindered or delayed by a Force Majeure event. The occurrence of a Force Majeure event shall not release the affected Party from its obligations under this Agreement, but shall merely suspend the performance of any obligation so prevented, hindered or delayed during the period of continuance of the Force Majeure event.

24.2

In every case the Party alleging a circumstance of Force Majeure event shall take reasonable action and undertake reasonably necessary measures to mitigate the effects of the Force Majeure and to resume, as soon as reasonably possible, the performance of those of its obligations under this Agreement affected by the Force Majeure event, including having in place disaster recovery and business recovery plans.

24.3

If an event of Force Majeure results in the Supplier being unable to perform its obligations under this Agreement for more than thirty (30) days, the College shall have the right to terminate the entire Agreement, or such portion thereof that was affected by the Force Majeure event, forthwith for cause and, at its option, procure the Product elsewhere.

25. Right to Setoff

25.1

The College, without waiver or limitation of any of its rights or remedies, and without liability for interest, shall be entitled from time to time to deduct from any amounts due or owing by the College to the Supplier in connection with this Agreement, any and all amounts owed by the Supplier to the College, including:

for any matter which may be in dispute between the Parties until the dispute is settled;
for any claims or liabilities which may be the basis of a claim made by a third party against the College; or
for any default or deemed default by the Supplier of any of its obligations under this Agreement.

26. Notice

26.1

When any notice is required or permitted to be given under any provision of this Agreement, such notice shall be made in writing and signed by or on behalf of the Party giving such notice to the following addresses for the College:

Red River College Polytechnic
Procurement and Logistics Services
B183- 2055 Notre Dame Ave.
Winnipeg, Manitoba, Canada R3H 0J9

with a copy to:

Legal Services
C409 – 2055 Notre Dame Ave.
Winnipeg, Manitoba, Canada R3H 0J9
Attention: General Counsel

Supplier
At the address detailed in its invoice or failing which, at their corporate head office or to such other address or facsimile number as a Party may from time to time direct in writing.

26.2

Any notice delivered before 4:00 p.m. local time on a Business Day shall be deemed to have been received on the date of delivery and any notice delivered after 4:00 p.m. local time on a Business Day, or delivered on a day other than a Business Day, shall be deemed to have been received on the next Business Day. No notice will be deemed to have been received until actually received.

26.3

Both Parties acknowledge that electronic transmission of information cannot be guaranteed to be secure or error free and such information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete or otherwise be adversely affected or unsafe to use. The Parties shall not have any liability to each other arising from or in connection with the electronic communication of information. Both Parties, acting reasonably, shall assess whether to use hard copy transmission for information that relates to a matter of significance.

27. General

27.1

All dollar amounts referred to in this Agreement shall be in Canadian funds.

27.2

Time shall be of the essence of this Agreement.

27.3

This Agreement shall be governed by and construed in accordance with the laws of the province of Manitoba and the applicable laws of Canada. The courts having jurisdiction in the province of Manitoba shall have exclusive jurisdiction in relation to any legal proceedings arising in connection with this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement and shall be disclaimed and excluded from any contracts placed by the Supplier with its sub-suppliers.

27.4

Any reference to a statute in this Agreement will be deemed to refer to the statute and the regulations made thereunder in force as at the date hereof, as the same may be subsequently amended, expanded, added to, supplemented or changed or replaced from time to time, unless otherwise expressly provided in this Agreement.

27.5

Any reference to policies or procedures of the College will be deemed to refer to the policies or procedures in force as at the date hereof, as the same may be subsequently amended, expanded, added to, supplemented or changed or replaced from time to time.

27.6

The Supplier shall abide by and ensure that all of its employees and/or subcontractors and their employees abide by all policies, rules and regulations related to security and comportment while on College.

27.7

The Supplier shall act as an independent contractor and not as an agent or employee of the College. Nothing in this Agreement shall create the relationship of employer/employee, or of principal and agent, between the Supplier and the RRC Polytech, or between any of the Staff of the Supplier, the College with any of the Supplier, and the RRC Polytech.

27.8

Each Party agrees to do all acts and things and execute all deeds, instruments, transfers and other documents as may be necessary or desirable to give full effect to the provisions of this Agreement and the transactions contemplated by it.

27.9

No remedy conferred upon a Party is intended to be exclusive of any other remedy available to that Party but each remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing by law or in equity or by statute.

27.10

In the event any provision, or any part or portion of any provision of this Agreement shall be held to be invalid, void or otherwise unenforceable, such holding shall not affect the remaining part or portions of that provision, or any other provision hereof.

27.11

No waiver by the College of any provision of this Agreement shall be deemed to constitute a waiver of any other provision of this Agreement, nor shall such waiver be binding unless executed in writing by the College. No failure on the part of the College to exercise, and no delay by the College in exercising any right under this Agreement shall operate as a waiver of such right, nor shall any single or partial exercise by the College of any such right preclude any other or further exercise of such right or the exercise of any other right.

27.12

No portion of this Agreement shall be assigned, subcontracted or delegated by the Supplier without the College’s prior written consent, which consent may be arbitrarily withheld. If the Supplier is a corporation, then any change in control of such corporation shall and is hereby deemed to be an assignment of this Agreement and subject to terms of this Agreement. Any unauthorized assignment, subcontracting or delegation shall be void. Notwithstanding any permitted assignment, subcontracting or delegation, the Supplier shall remain liable for the performance of the Supplier’s obligations under this Agreement unless otherwise agreed to in writing by the College.

27.13

This Agreement shall enure to the benefit of and be binding upon the Parties hereto and their respective successors and permitted assigns.