Terms and Conditions for Purchase of Goods or Services
For good consideration, the Parties agree as follows:
- Definitions: Terms not otherwise defined herein shall have the following meanings. “Applicable Laws” means any and all applicable federal, provincial, regional and municipal laws, statutes, regulations, policies and similar directives of any Governmental Authority. “Change Order” means a change authorized in writing by the Purchaser or the Purchaser’s Representative and the Supplier. “Confidential Information” means any information that a Party designates as confidential or should reasonably be considered confidential relating to the business, operations, affairs or activities of a Party but does not include publicly available information or information disclosed or previously known by the receiving Party on a non-confidential basis. “Delivery” means delivery of the Goods in accordance with the Purchase Order. “Goods” means goods, supplies, materials, equipment or other items to be furnished or delivered as specified in the Purchase Order. “Intellectual Property” means all intellectual property rights, including all copyright and similar rights, rights in relation to inventions (including all patents and patent applications), trade secrets, rights in relation to designs (whether or not registrable) and rights in relation to registered or unregistered trademarks. “Parties” means the Purchaser and Supplier and “Party” means the Purchaser or Supplier, as applicable. “Personnel” means the past and present directors, officers, employees, agents and representatives of a Party or its subsidiaries or affiliates (including the Purchaser’s Representatives and its Personnel). “Purchase Order” means the purchase order issued by the Purchaser to the Supplier in respect of the supply of Goods or Work to which these General Conditions are attached. “Purchase Order Price” means the total amount payable by the Purchaser to the Supplier for the Work pursuant to the Purchase Order. “Purchaser” means New Gold Inc. “Purchaser Indemnified Parties” means the Purchaser and its Personnel, the Purchaser’s subsidiaries and affiliates and their respective Personnel. “Purchaser’s Representative” means the person who is authorized or designated from time to time to represent the Purchaser. “Services” means the services (if any) to be provided by the Supplier to the Purchaser in connection with the Goods as part of the Work, such as design, installation, commissioning, training and maintenance services, as described in the Purchase Order. “Supplier” means the entity supplying the Work to the Purchaser. “Work” means the supply of the Goods and performance of the Services, if any, by the Supplier under the Purchase Order and shall include the performance of additional services or the supply of additional goods as may be authorized by Change Order.
- Services/Goods: The Supplier agrees to supply and deliver the Goods to the Purchaser and to perform the Services, if any, on the terms set out in the Purchase Order to which these General Conditions are incorporated by reference and form part thereof. The Supplier shall always act and complete the Work with a standard of diligence, skill and care equal to or above that expected and normally exercised in its industry by prudent, experienced and qualified service providers in providing similar Services and/or Goods (the “Standard of Care”).
- Changes: At any time, the Purchaser may request changes to the Services to be performed or the Goods to be delivered. In such an event, and upon mutual consent of both Parties, acting reasonably, the Purchase Order Price and the timetable for execution of the Work shall be modified accordingly in writing. The Supplier shall not begin work on the changes before receiving written authorization from the Purchaser, at which time the mutually agreed changes shall be made part of the Purchase Order.
- Intellectual Property: If the Supplier is providing any Services solely in the nature of consulting or engineering, the Purchaser hereby acknowledges that the Supplier is the sole owner of any pre-existing Intellectual Property developed independently by the Supplier prior to the provision of Work under the Purchase Order and any enhancements or modifications thereof, even if such enhancements or modifications have been made during the term of the Purchase Order. If any pre-existing or enhanced Intellectual Property belonging to the Supplier is applied by the Supplier to the Work, the Supplier hereby grants to the Purchaser a fully paid, non-exclusive, worldwide, transferable (with the right to assign and sub-license), royalty free, irrevocable and perpetual license of the Supplier’s Intellectual Property to use, make, have made, import and export any of the Supplier’s Intellectual Property to the extent necessary for the Purchaser to fully enjoy and exploit the Work, including, without limiting the foregoing, for the purposes of repairing, maintaining or servicing (including the supply of replacement parts), or making alterations, additions or expansions to the Work. The Supplier warrants that it has the right to confer such license to the Purchaser. The Supplier acknowledges that all Intellectual Property contracted for and furnished to the Purchaser under the Purchaser Order shall be and remain the property of the Purchaser. The Supplier further acknowledges that the Purchaser shall remain the sole owner of any Intellectual Property owned by the Purchaser, including enhancements or derivatives developed in respect to the Work, and that the Purchaser does not confer any rights to the Supplier with respect to Intellectual Property belonging to the Purchaser.
- Confidentiality: Each Party agrees to hold in strict confidence all Confidential Information of the other Party and not to disclose or permit to be disclosed any such Confidential Information to any person other than its Personnel who require the Confidential Information in connection with the Purchase Order and who agree to keep the same confidential; and not to make use of the Confidential Information of the other Party except and solely to the extent necessary in connection with the Purchase Order. The foregoing does not apply to the disclosure of Confidential Information by a Party in order to comply with any Applicable Laws or legally binding order of any court or Governmental Authority or rule of any recognized stock exchange on which it or any of its affiliates is listed, as long as before such disclosure the disclosing Party gives notice to the other Party with full particulars of the proposed disclosure, to the extent reasonably possible and legally permissible.
- Warranty Period: The Supplier warrants that the Work shall be carried out in accordance with the Purchase Order and the Standard of Care. The Warranty Period starts from the date on which the Goods have been delivered to the Purchaser or the Services have been accepted by the Purchaser and shall extend for a period of twelve (12) months after Delivery or performance of the Services, as applicable, or such longer time period as is otherwise provided in the Purchase Order (the “Warranty Period”).
- Insurance, Permits and other Documents: The Supplier warrants that it has and it shall maintain, at its own cost, during the term of the Purchase Order, all permits, licenses and authorizations required by law to perform the Work and the following insurance coverage: a) if the Supplier is attending any Purchaser property, workers’ compensation coverage in the province where the Work will be performed; b) comprehensive general liability insurance (at a minimum of CDN $5,000,000 per occurrence); c)automobile liability insurance (at a minimum of CDN $2,000,000 per occurrence) where the Work requires the use of automobiles, trucks, tractors or all- terrain vehicles; and d) any other insurance required by applicable municipal, provincial or federal law. Upon the Purchaser’s request, as applicable, the Supplier shall provide the Purchaser with evidence of the following: insurance certificates and applicable endorsements: provincial workers’ compensation clearance certificates, statutory declarations that the Supplier has paid in full its material suppliers, workmen and subcontractors, and releases from the Supplier’s suppliers and subcontractors.
- Taxes, Invoicing and Payment: The Purchaser shall pay the Supplier an amount not exceeding the Purchase Order Price for the full and satisfactory completion of the Work. The Purchaser shall only pay for actual Goods delivered and/or Services performed. The Purchase Order Price shall include all taxes, duties, customs, fees, levies and other government imposed charges for which the Supplier is responsible under Applicable Laws (including, without limiting the foregoing, sales taxes and other taxes on the Supplier’s inputs). However, the Purchase Order Price does not include GST/HST or PST applicable at the point of sale to the Purchaser in respect of Goods and Services supplied by the Supplier to the Purchaser. The Purchaser shall pay such GST/HST or PST to the Supplier provided that the Supplier is registered for GST/HST or PST, as applicable.
Upon satisfactory completion of Services or satisfactory delivery of Goods, the Supplier shall provide the Purchaser with an invoice setting out all details required by the Purchaser together with total fees payable. All invoices shall include such information as is reasonably required for the Purchaser to claim available input tax credits for GST/HST. If the Supplier is or becomes a “non-resident” for the purposes of the Income Tax Act (Canada), the Supplier shall ensure each invoice issued to the Purchaser identifies the portion of the Services performed in Canada and the value of such Services. The Purchaser shall have up to five (5) business days following receipt of the invoice to review and either approve the invoice or advise of any deficiencies. The Supplier shall promptly address any such deficiencies and resubmit a revised invoice. Unless otherwise advised, all invoices shall be sent to rainyriver.accounts@newgold.com .
NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE PURCHASER SHALL NOT PAY ANY INTEREST, PENALTY FEES OR FINES ON ANY INVOICE. THE SUPPLIER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS THE PURCASER AGAINST ANY ASSESSMENT BY TAX AUTHORITIES IN RESPECT OF GST/HST OR PST RELATIVE TO THE WORK UNDER THE PURCHASE ORDER WHICH WAS NOT TIMELY REMITTED BY THE SUPPLIER TO THE APPROPRIATE TAX AUTHORITIES. - Set-off Compensation: In the event the Supplier becomes in any way indebted to the Purchaser under the terms of the Purchase Order, the Purchaser shall have the right to set-off to the extent of such debt.
- Risk and Ownership: Risk of loss and ownership of the Goods shall pass to the Purchaser when the Goods are Delivered to the Purchaser’s site, but subject always to the Purchaser ‘s right to reject the Goods and/or terminate the Purchase Order for: (i) non-compliance with the Delivery, quantity or quality requested by the Purchaser or (ii) breach of the warranties under Section 13.
- Health, Safety and Environment: The Supplier shall: (i) comply with the Purchaser’s Code of Business Conduct and Ethics (the “Code“); and (ii) comply with all human rights legislation applicable under the laws of the jurisdiction in which the Work is provided, and shall abide by the Code and Applicable Laws in the provision of the Work to the Purchaser. In addition, if the Supplier is attending at any Purchaser property, the Supplier shall comply with all Purchaser policies and procedures applicable to the Purchaser property where the Work will be performed. The Supplier hereby acknowledges having received, in electronic format, the version of the Code in effect as of the date of the Purchase Order before the provision of Work under the Purchase Order. The Supplier shall not bring any toxic, hazardous or dangerous substance to any Purchaser property without obtaining the Purchaser’s prior written consent.
- Audit Rights: The Purchaser shall have the right to inspect and audit the Work and ensure compliance with the terms and conditions of the Purchase Order at any time and place. Audit rights shall not extend to the profit margin and the composition of the Supplier’s fees.
- Supplier Representations and Warranties: The Supplier warrants that the Work shall be carried out in accordance with the Purchase Order and the Standard of Care. The Supplier further warrants that unless the Purchase Order expressly provides otherwise, the Goods shall be new, of good and merchantable quality and free of contaminants; at the time of Delivery, title to the Goods will be transferred to the Purchaser free of any encumbrances; the Goods will be free of defects in materials, workmanship and design; the Services will be free from any errors, omissions or other defects; the Goods will be in good working order and condition for use in the specified manner for which they were intended; the Goods will have a life expectancy commensurate with what would be expected of similar goods or equipment provided for similar purposes by an equally experienced, competent and reputable supplier or contractor; the Goods will correspond in all respects with the specifications, drawings or representations made by the Supplier and any sample provided by or on behalf of the Supplier; the Goods will be fit for the use and for the specific purpose as identified in or reasonably inferable from the Purchase Order for which they have been ordered and will function and perform under the specified operating conditions as intended and in accordance with any guarantees, if applicable; and the Work and the performance of the Work will comply with all Applicable Laws and applicable standards. If any default, defect or nonconformity or breach of any warranty given or made by the Supplier under this Section 13 is discovered by the Purchaser or the Supplier during the Warranty Period, the Supplier shall, at its expense, take all measures necessary to promptly remedy the breach of warranty or correct any and all defects or replace or have replaced or reperformed the defective Work with the greatest diligence. After written notice to the Supplier and failing a prompt and sufficient plan of action on the part of the Supplier, the Purchaser shall have the right to effect or arrange for all of the necessary repairs or replacement at the Supplier’s risk and expense.
- INDEMNITY, LIMITATION OF LIABILITY: THE SUPPLIER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS THE PURCHASER INDEMNIFIED PARTIES FROM AND AGAINST ANY AND ALL CLAIMS AND LIABILITIES SUFFERED, SUSTAINED OR INCURRED BY THE PURCHASER INDEMNIFIED PARTIES ARISING OUT OF OR RESULTING IN ANY MANNER WHATSOEVER FROM: (I) THE NEGLIGENCE OR WILLFUL MISCONDUCT OF THE SUPPLIER OR ITS PERSONNEL; (II) THE NON-PERFORMANCE OF THE SUPPLIER’S COVENANTS AND/OR OBLIGATIONS UNDER THE PURCHASE ORDER OR THESE GENERAL CONDITIONS; AND (III) ANY BREACH OF, OR FAILURE TO FULFILL, ANY REPRESENTATION OR WARRANTY GIVEN BY THE SUPPLIER UNDER THE PURCHASE ORDER OR THESE GENERAL CONDITIONS, INCLUDING CLAIMS AND LIABILITIES IN RESPECT OF PERSONAL INJURY TO OR DEATH OF OR DAMAGE TO OR LOSS OF PROPERTY OF ANY OF THE PURCHASER INDEMNIFIED PARTIES. THE SUPPLIER SHALL OBTAIN THE WRITTEN CONSENT OF THE PURCHASER BEFORE THE SETTLEMENT OF ANY CLAIMS FOR WHICH THE SUPPLIER SHALL PROVIDE A DEFENCE AND INDEMNITY TO THE PURCHASER.
NEITHER PARTY SHALL BE LIABLE TO PAY ANY INDIRECT, CONSEQUENTIAL, AGGRAVATED, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR BUSINESS SHUTDOWN. THE MAXIMUM LIABILITY OF THE SUPPLIER UNDER THE PURCHASE ORDER SHALL BE LIMITED TO THE PURCHASE ORDER PRICE PROVIDED, HOWEVER, THAT NO LIMITATION OF LIABILITY SHALL APPLY TO: (I) CLAIMS WHICH ARISE OR RESULT FROM THE SUPPLIER’S FRAUDULENT OR CRIMINAL ACTS; (II) THE GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF THE SUPPLIER; OR (III) THIRD PARTY CLAIMS AGAINST THE PURCHASER RESULTING FROM THE SUPPLIER’S NEGLIGENCE OR BREACH OF CONTRACT. THE PURCHASER’S SOLE LIABILITY, WHETHER IN TORT, CONTRACT, STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY, SHALL BE THE PAYMENT OF APPROVED INVOICES AND DIRECT, REASONABLE AND AUDITABLE DEMOBILIZATION COSTS, IF ANY, THAT MAY RESULT FROM THE PURCHASER’S EARLY TERMINATION OF THIS CONTRACT WITHOUT CAUSE PURSUANT TO SECTION 15. - Termination: The Purchaser may terminate the Purchase Order upon written notice to the Supplier. Should the Purchaser terminate the Purchase Order without cause, the Purchaser shall pay the Supplier any direct, reasonable and auditable demobilization costs, if any, associated with early termination. The following events shall give either Party the right to terminate the Purchase Order for cause: (i) insolvency or bankruptcy of the other Party; (ii) material breach of any terms and conditions of the Purchase Order or these General Conditions which is not cured by the breaching Party within thirty (30) days after receiving written notice from the terminating Party of the breach or immediately if such material breach cannot be cured; or (iii) death, sickness, personal injury or property damage of any person caused by the negligence or breach of contract of the breaching Party.
In addition to any other legal remedy or recourse in law available to the Purchaser, the Purchaser shall be entitled to withhold any monies otherwise due to the Supplier in case of termination for cause to cover the costs of any disputes arising from or in connection with the termination. The termination of the Purchase Order by either Party shall not prejudice any rights or recourse that one Party may have against the other under the Purchase Order. - Entire Agreement: The Purchase Order and these General Conditions which are incorporated by reference therein and form part thereof constitute the entire agreement between the Parties with respect to the subject matter of the Purchase Order and supersedes any previous agreement, understanding or communications between the Parties related thereto. No representation, inducement, promise or agreement not specifically set out in the Purchase Order shall be of any force or effect. To the extent this Agreement is inconsistent with any other document, agreement, purchase order or understanding between the Parties, including any general terms and conditions of the Supplier, whether signed or delivered prior to or subsequent to the effective date of the Purchase Order, the terms and conditions of the Purchase Order and these General Conditions shall govern. Except as expressly provided in the Purchase Order, no amendment to the Purchase Order or General Conditions shall be binding unless executed in writing by the Parties.
- Assignment and Enurement: Neither Party may assign the Purchase Order or subcontract its obligations under the Purchase Order without the express consent of the other Party. However, upon notice to the Supplier, the Purchaser may assign the Purchase Order to any of the Purchaser’s affiliates without the express consent of the Supplier. The Purchase Order shall enure to the benefit of the Parties and is binding upon the Parties’ heirs, executors, successors and permitted assigns.
- Anti-Bribery Law: The Supplier shall comply and shall ensure that its Personnel comply with all Applicable Laws regarding bribery or corruption of public officials, including the Corruption of Foreign Public Officials Act (Canada) and the U.S. Foreign Corrupt Practices Act. Without limiting the foregoing, the Supplier and its Personnel shall refrain from offering, giving, promising or authorizing giving, directly or indirectly, money or anything of value to a government official for any purpose in connection with the Work.
- Survival: Sections 4, 5, 8, 9, 12, 13,14, 16, 17, 19 and 20 shall survive the termination or expiry of the Purchase Order.
- Governing Law and Forum: The Purchase Order shall be governed by the laws of the Province of Ontario and the Federal laws of Canada. The Parties hereby irrevocably attorn to the jurisdiction of the courts of the Province of Ontario in the City of Toronto.
- Acceptance: Provision of Work by Supplier shall constitute acceptance of these General Conditions of the Purchase Order by Supplier.
Revision date: June 20, 2022
