Terms and Conditions for Purchase of Goods and/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 document in writing signed by the Purchaser 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. “Contract” means the agreement between the Parties with respect to the Work as constituted by the documents referenced in Section 2 of these Terms and Conditions. “Delivery” means completion of delivery of the Goods to the Delivery Location in accordance with the Contract. “Delivery Location” means the point for delivery of the Goods or performance of the Services specified in the Purchase Order. “Goods” means goods, supplies, materials, equipment or other items to be supplied as specified in the Purchase Order, if any. “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. “Purchase Order” means the purchase order issued by the Purchaser to the Supplier in respect of the Work. “Purchase Order Price” means the total amount payable by the Purchaser to the Supplier for the Work set out in the Purchase Order. “Purchaser” means New Gold Inc. “Purchaser Indemnified Parties” means the Purchaser and the Purchaser’s subsidiaries and affiliates and their respective Personnel. “Services” means the services to be provided by the Supplier to the Purchaser described in the Purchase Order, if any. “Supplier” means the entity supplying the Work to the Purchaser. “Supplier Operations” means all assets, processes and systems (including information systems), data (including Purchaser data), personnel and sites used or processed by Supplier from time to time in the performance of the Contract. “Work” means the supply of the Goods and/or performance of the Services, as applicable, by the Supplier under the Contract and shall include the performance of additional services or the supply of additional goods as may be authorized by Change Order.
- Contract Documents: The Contract consists of the following documents: (a) the Purchase Order; (b) these Terms and Conditions; and (c) any other document which is attached to, or incorporated by reference in, the Purchase Order. If there is any conflict or inconsistency between the documents constituting the Contract, the documents will rank in the foregoing order. The Contract shall not include any terms or conditions that are referred to, submitted by or otherwise used by the Supplier (including as part of the submission of any proposal, quotation, invoice or bill of lading) and such terms and conditions are expressly rejected by the Purchaser, except to the extent expressly stated as forming part of the Contract documents.
- Services/Goods: The Supplier agrees to supply and Deliver the Goods to the Purchaser and to perform the Services, as applicable, in accordance with the Contract, including, without limitation, in accordance with any schedule for the Work set out in the Contract. 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 or suppliers in providing similar Services and/or Goods (the “Standard of Care”).
- Delivery: Unless otherwise expressly provided in the Purchase Order, the delivery terms for the Goods shall be DDP, the Delivery Location (Incoterms 2020). The Goods shall be delivered, and Services shall be provided, during regular business hours at the Delivery Location unless otherwise requested by the Purchaser. Supplier shall provide the following minimum information for each delivery of Goods prior to Delivery: number of packages and contents, the customs tariff numbers of the country of consignment, the countries of origin, proof of preferential origin as well as conformity declarations and marks of the country of consignment or destination and, if requested by the Purchaser, certificates of origin. All packaging and labels on Goods must include any information or markings required by Applicable Laws, in particular the name of the Goods as well as the name and address of the manufacturer and the importer. Upon Delivery, the Supplier (or its appointed carrier) shall provide the Purchaser with a delivery note and any other required export and import documents not otherwise provided under this section. If the Purchaser has approved partial delivery, such delivery note shall also include the outstanding balance. Supplier shall ensure that the Goods are packed according to industry standards and in a manner adequate to preserve and protect the Goods.
- Changes: At any time, the Purchaser may request changes to the Services and/or the Goods. In such an event, and upon mutual consent of both Parties, acting reasonably, a Change Order reflecting such change shall be issued, including any necessary modification to the Purchase Order Price and the timetable for execution of the Work. The Supplier shall not begin work on any changes without a Change Order. Notwithstanding the foregoing, the Purchaser may require the Supplier to proceed with a change to the Services and/or the Goods prior to execution of a Change Order by written notice. If any such change causes an increase or decrease in the cost of, or the time required for the performance of, the Work, the Purchase Order Price and/or timetable, as applicable, shall be equitably adjusted. Any claims by the Supplier for an increase to the Purchase Order Price or extension to the timetable will be deemed waived unless asserted in writing to the Purchaser within five (5) calendar days after Supplier’s receipt of the Purchaser’s notice requiring the change.
- Intellectual Property: 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 Contract and any enhancements or modifications thereof, even if such enhancements or modifications have been made during the term of the Contract, as well as any software embedded in the Goods (“Embedded Software”). 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, and to use any Embedded Software, 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 Contract 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 Contract 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 Contract. 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.
- Insurance, Permits and other Documents: The Supplier warrants that it has and it shall maintain, at its own cost, during the term of the Contract, 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 Laws. 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. Except as expressly provided otherwise in the Contract, 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 HST applicable at the point of sale to the Purchaser in respect of Goods and Services. The Purchaser shall pay such applicable HST to the Supplier provided that the Supplier is registered for HST.
In order to allow for prompt payment, the Supplier shall complete any necessary vendor onboarding requirements required by the Purchaser, including registering with Ariba. Upon satisfactory completion of Services or satisfactory Delivery of Goods, as applicable, the Supplier shall provide the Purchaser with an invoice setting out all details required by the Purchaser together with total amount payable. All invoices shall include such information as is reasonably required for the Purchaser to claim available input tax credits for 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 ten (10) 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 either electronically via Ariba or to rainyriver.accounts@newgold.com, as directed by the Purchaser from time to time. Invoices are due within forty-five (45) days after receipt by the Purchaser of an undisputed invoice that complies with the Contract. Unless otherwise agreed by the Purchaser in its sole discretion, invoices submitted more than four months after the Work to which the invoice relates is performed will be rejected and not paid.
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 HST RELATIVE TO THE WORK UNDER THE CONTRACT 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 Contract, the Purchaser shall have the right to set-off to the extent of such debt.
- Risk and Ownership: If the Purchase Order includes the supply of Goods, risk of loss and ownership of the Goods shall pass to the Purchaser when the Goods are Delivered, but subject always to the Purchaser’s right to reject the Goods and/or terminate the Contract for: (i) non-compliance with the Delivery, quantity or quality required by the Contract; or (ii) breach of the warranties under Section 14.
- Health, Safety and Environment: In the provisions of the Work, the Supplier shall: (i) comply with the Purchaser’s Code of Business Conduct and Ethics (the “Code”); and (ii) comply with all Applicable Laws, including those relating to human rights. 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. The Supplier assumes full and exclusive responsibility for any occupational accident or disease that occurred to its employees and its subcontractors in relation to the provision of the Goods and/or Services.
- Audit Rights: The Purchaser shall have the right to inspect and audit the Work and ensure compliance with the terms and conditions of the Contract at any time and place from time to time. 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 Contract and the Standard of Care. The Supplier further warrants that unless the Contract 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 Contract for which they have been ordered and will function and perform under the specified operating conditions as intended and in accordance with any guarantees in the Contract, if applicable; and the Work and the performance of the Work will comply with all Applicable Laws and applicable standards. The warranty period starts from the date on which the Goods have been Delivered 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 Contract (the “Warranty Period”). If any default, defect or nonconformity or breach of any warranty given or made by the Supplier under this Section 14 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 re-performed 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 CONTRACT; AND (III) ANY BREACH OF, OR FAILURE TO FULFILL, ANY REPRESENTATION OR WARRANTY GIVEN BY THE SUPPLIER UNDER THE CONTRACT, 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 CONTRACT 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) CLAIMS WHICH ARISE OR RESULT FROM 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 THE CONTRACT WITHOUT CAUSE PURSUANT TO SECTION 16. - Termination: The Purchaser may terminate the Contract upon written notice to the Supplier. Should the Purchaser terminate the Contract 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 Contract for cause: (i) insolvency or bankruptcy of the other Party; (ii) material breach of any terms and conditions of the Contract 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 Contract by either Party shall not prejudice any rights or recourse that one Party may have against the other under the Contract. - Entire Agreement: The Contract constitutes the entire agreement between the Parties with respect to the subject matter thereof 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 Contract shall be of any force or effect. Except as expressly provided in the Contract, no amendment to the Contract shall be binding unless executed in writing by the Parties.
- Assignment and Enurement: Neither Party may assign the Contract or subcontract its obligations under the Contract without the express consent of the other Party. However, upon notice to the Supplier, the Purchaser may assign the Contract to any of the Purchaser’s affiliates without the express consent of the Supplier. The Contract shall enure to the benefit of the Parties and is binding upon the Parties’ heirs, executors, successors and permitted assigns.
- Anti-Bribery and Anti-Modern Slavery 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. The Supplier shall comply with all Applicable Laws prohibiting the use of forced, prison or child labour; not knowingly use or source any goods or materials made using forced, prison or child labour; and take adequate measures to prevent and remediate the risk of forced, prison or child labour occurring within the supply chain used to perform the Contract.
- Cybersecurity: The Supplier shall take appropriate organizational and technical measures to ensure the confidentiality, authenticity, integrity and availability of Supplier Operations as well as Goods and Services. These measures shall be consistent with good industry practice and shall include an appropriate information security management system consistent with standards such as ISO/IEC 27001 or IEC 62443. Should Goods or Services contain software, firmware, or chipsets: (a) the Supplier shall implement appropriate standards, processes and methods to prevent, Identify, evaluate and repair any vulnerabilities, malicious code, and security incidents in such Goods or Services which shall be consistent with good industry practice and standards such as ISO/IEC 27001 or IEC 62443 (to the extent applicable); and (b) the Supplier shall continue to support and provide services to repair, update, upgrade and maintain Goods and Services including the provision of patches to the Purchaser remedying vulnerabilities for the reasonable lifetime of the Goods and Services. The Supplier shall promptly report to the Purchaser all relevant information security incidents which have occurred or are suspected, and vulnerabilities discovered, in any Supplier Operations, Goods or Services, if and to the extent the Purchaser is or is likely to be materially affected as well as a contact for all information security issues. The Supplier shall take appropriate measures to ensure that its sub-contractors and suppliers are bound by obligations similar to the provisions of Section 20. Upon the Purchaser’s request, the Supplier shall provide written evidence of its compliance with this Section 20 including generally accepted audit reports (e.g. SSAE-16 SOC 2 Type II).
- ISN Vendor Compliance Registration: The Supplier shall maintain at the Supplier’s expense a subscription with ISNetworld (www.ISN.com), an online portal that manages health and safety data as well as other vital contractor qualifications for the Purchaser, for the duration of the Contract. The Supplier shall furnish ISNetworld with any relevant information reasonably requested by ISNetworld in connection with ISNetworld’s evaluation of the Supplier. In the event that the Supplier’s ISNetworld rating falls below a “C” Grade, the Supplier shall promptly take all steps necessary to improve the rating so that it is, at a minimum, equal to a “C” Grade. If the Supplier does not improve such rating to “C” within 30 days after the issuance of the rating by ISNetworld, the Supplier shall be considered in default of the Contract. The Purchaser makes no representation about the quality of services being performed by ISNetworld. The Purchaser’s use of ISNetworld shall not constitute nor be construed as the Purchaser assuming responsibility or liability for safety under the Contract or at law and does not relieve the Supplier from full compliance with its legal and contractual obligations otherwise provided. ISNetworld is an independent contractor and not an agent of the Purchaser, and any acts or omissions by ISNetworld shall not be considered an act or omission of the Purchaser.
- Survival:Sections 6, 7, 9, 10, 13, 14, 15, 17, 18, 19, 20 and 23 shall survive the termination or expiry of the Contract.
- Governing Law and Forum: The Contract shall be governed by the laws of the Province of Ontario and the federal laws of Canada. The Parties hereby irrevocably attorn to the non-exclusive jurisdiction of the courts of the Province of Ontario in the City of Toronto. The United Nations Convention of Contracts for International Sales of Goods shall not apply to the Contract.
- Acceptance: Commencement of any Work by Supplier shall constitute acceptance of the Contract by Supplier.
Revision date: January 9, 2024
