Purchase Order Terms and Conditions
Date: May 20, 2011
These Purchase Order terms and conditions, and any Purchaser supplementary Purchase Order terms and conditions (if applicable), attached to or referenced in the main body of the Purchase Order supersede any pre-printed terms and conditions contained on the back of any Purchase Order.
1. Complete Agreement
This Purchase Order, together with all documents, drawings and specifications referred to herein, shall, when accepted by the Vendor, constitute the entire contract between the Vendor and Purchaser, and shall not be altered, amended or supplemented without the Purchaser’s prior written approval. The Purchaser shall not be bound by any terms or conditions in any of the Vendor’s forms or documents including any shrink wrap, click-through, online agreement, user manual insert, or other contract of adhesion. Any of the Vendor’s written acceptance of this Purchase Order, or the shipment of the goods, or the commencement of any work hereunder, shall constitute unqualified acceptance and no contrary or additional terms or conditions shall apply. The Purchaser may insist upon strict compliance with these terms and conditions despite any previous custom, practice or course of dealing to the contrary. To the extent that the subject Purchase Order incorporates by reference Vendor’s quotation, proposal, policy or other documentation, then any pre-printed or standard terms or conditions contained in such documentation shall not be binding upon Purchaser unless such terms or conditions are reproduced in the Purchase Order. Only an authorized signing officer of Purchaser has authority to bind Purchaser to any amendments of, or additional terms not included in, the Purchase Order or any other contract. Where this Purchase Order is issued in connection with goods or work procured through an RFP process, the terms, conditions and requirements of the RFP (“RFP Terms”) shall not merge upon the issuance of this Purchase Order; and the specifications/requirements set out for the goods/work in the RFP Terms are hereby incorporated into this Purchase Order; provided that any specifications/requirements expressly stated (or set out in supplementary terms and conditions referenced) on the face of this Purchase Order, shall take precedence over such specifications/requirements in the RFP Terms, but only to the extent of any inconsistencies therewith. Where a Purchase Order is issued for construction work that is indicated in the Purchase Order to be subject to CCDC2 terms, then such work shall not be subject to these Purchase Order terms and conditions, and instead shall be subject to the CCDC2 terms as amended by Purchaser’s CCDC2 supplementary conditions.
2. Changes, Termination
Purchaser reserves the right, upon reasonable notice prior to delivery of the subject goods or work being procured, to make any reasonable changes to this Purchase Order including, without limitation, changes in drawings and specifications, additions or deletions from the quantities, or termination of the entire Purchase Order. If any such change causes any increase or decrease in the cost of, or the time required for, the performance of any part of this Purchase Order, an equitable adjustment shall be determined in the price or delivery date or both, and this Purchase Order shall be modified in writing accordingly. Any dispute or claim arising with respect to said change shall be asserted by the Vendor within 30 days of the notification of change from the Purchaser. Acceptance of goods hereunder shall not bind Purchaser to accept future shipments, nor deprive Purchaser of the right to return goods already received.
3. Prices, Payments
Unless otherwise expressly stated in the Purchase Order, all prices specified herein shall be fixed and in Canadian dollars and shall include all charges and expenses of the Vendor, as well as freight and insurance to destination including packing, boxing, cartage and any and all applicable taxes, fees and duties of federal, provincial and local government except any applicable harmonized sales tax which may be shown as extra. Undisputed invoices are payable by Purchaser within 45 days of receipt subject to satisfactory completion of performance by Vendor of its obligations. The time specified for payment of invoices, or for accepting any payment of discounts offered, shall run only from the date that undisputed invoices are furnished to the Purchaser, or satisfactory receipt of the goods / work by the Purchaser, whichever shall be the latter. Purchaser may withhold payment subject to a reasonable period to conduct inspection (with respect to goods); and, with respect to equipment, software, deliverables and work, successful testing, in accordance with section 17 (Acceptance Testing). Purchaser shall be entitled to obtain copies of, or to audit, any supporting documentation with respect to invoiced charges. Where a Purchase Order indicates that Purchaser shall also be responsible for expenses, then Purchaser shall reimburse Vendor for reasonable expenses as actually incurred, provided: (a) such expenses must be pre-approved by Purchaser; (b) Vendor shall not include in such expenses any administrative markup; (c) Vendor shall provide copies of receipts; and (d) such expenses must comply with Purchaser’s Travel/Expense Policy (version as set out at <www.sickkids.ca/poterms> as of the date of issuance of the Purchase Order); for greater clarity, in accordance with such policy, and in conformance with the Ontario Government’s Broader Public Sector Expenses Directive, meals, hospitality and incidentals are prohibited from being reimbursable expenses, and shall accordingly not be subject to reimbursement under this Purchaser Order.
Where a delivery/performance date or schedule is specified in this Purchase Order, timely delivery/performance is of the essence, and the Vendor shall be responsible to ensure that such delivery is made, and shall advise the Purchaser immediately of any anticipated delays and the reasons therefor. Except for software, title to goods transfers to Purchaser upon delivery. All goods will be delivered free of encumbrances; Vendor shall not register any encumbrances on any Purchaser property; and Vendor shall ensure prompt removal of any encumbrances that arise by operation of statute registered on any Purchaser property which relates to the performance of any work by Vendor or its subcontractors/agents.
In the case of tangible goods, Vendor shall suitably pack, mark and ship in accordance with any instructions from the Purchaser and the requirements of common carriers in a manner to secure the lowest transportation cost, and no additional charge shall be made by the Vendor therefor unless otherwise stated herein. Vendor shall be liable for any difference in freight charges or damage to the goods resulting directly or indirectly from any failure by the Vendor to comply with this section. Risk of loss shall not pass to Purchaser prior to receipt of applicable goods at Purchaser’s facilities.
6. Inspection, Rejection
Purchaser shall have the right to conduct an inspection within a reasonable time after delivery of goods at Purchaser’s facilities, and/or completion of the work, as applicable, and if, in Purchaser’s reasonable discretion, any goods are deemed to be to be damaged, incomplete, or not in conformance with their documentation/required specifications or fit for their intended purpose; or work is deemed to be incomplete or deficient; such goods/work shall be subject to rejection by Purchaser. The making or failure to make any inspection to, or payment for, or acceptance of goods or work, shall in no way impair the Purchaser’s right to reject non-conforming goods/work, or to avail itself of any other remedies to which Purchaser may be entitled.
7. Acceptance Testing
In addition to the rights set out in section 6, where goods consist of equipment, software and/or deliverables (e.g., work), then following delivery and completion of installation/implementation (including training if applicable), Purchaser shall have a 30 day period (or such other period as is specified on the Purchase Order) to perform acceptance tests in order to confirm that the goods operate without errors and in conformance to their documentation and any mutually agreed to documented requirements. If Purchaser identifies any deficiencies during such acceptance test to Vendor then Vendor shall promptly correct such deficiencies and allow Purchaser a reasonable period to confirm such corrections. If Vendor is unable or unwilling to correct such deficiencies within a reasonable period then Purchaser may, at its option, return the goods/work, cancel the acquisition and Vendor shall refund all amounts paid by Purchaser pursuant to the Purchase Order in respect of the rejected goods/work and any other dependent goods/work whose value is diminished.
All information that the Vendor receives or acquires from the Purchaser either in writing, orally or through observation of the Purchaser’s operation, or in the course of the Vendor fulfilling its obligations hereunder, (“Purchaser Confidential Information”) shall be held by the Vendor in confidence at all times and used solely to perform such obligations and shall be returned or destroyed when no longer required, or upon request by Purchaser. Accordingly, the Vendor shall ensure that all recipients of the said information, including Vendor’s employees, agents, subcontractors and/or licensors, comply with the obligations under this section. The foregoing obligations of confidentiality and non-disclosure do not apply to information (except personal information or personal health information) that:
(a) is or becomes publicly available other than through breach of these terms and conditions;
(b) is subsequently lawfully obtained by Vendor from a lawful third party without breach of this Agreement by Vendor or its employees, agents, subcontractors or licensors;
(c) was known to Vendor prior to disclosure to Vendor by Purchaser as shown by documentation sufficient to establish such knowledge;
(d) is required by law to be disclosed, provided that Vendor provides prompt notice to Purchaser of such requirement to disclose.
Purchaser Confidential Information expressly includes “personal information” and “personal health information”, as those terms are defined in Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA) and Ontario’s Personal Health Information Protection Act (PHIPA), (hereinafter collectively “PHI”), and additional confidentiality obligations in respect of PHI are set out in section 9 below.
9. Confidentiality of PHI
(a) Unless otherwise authorized in writing by Purchaser and subject to more detailed obligations concerning the use and protection of such information, (a) Vendor may not access, use or disclose any PHI, and in the event of any unauthorized access (including inadvertent) shall immediately notify Purchaser and seek direction for the return/destruction of any such PHI; (b) without limiting the generality of the foregoing, no PHI shall be removed or transferred from Purchaser’s premises.
(b) Where goods are of a type that store PHI, such goods shall provide functionality to support compliance with the requirements of the Personal Health Information Privacy Act (Ontario), as amended from time to time, including the maintenance of audit logs and functionality to implement lock box requirements. Any PHI provided by Purchaser to Vendor, or otherwise acquired or accessed by Vendor or its representatives in the course of performing the work, including inadvertently, shall constitute confidential information of Purchaser. PHI shall not be either directly or indirectly used or disclosed by Vendor or its representatives without Purchaser’s prior written consent. Vendor will keep PHI separate from its other records and databases. PHI will be kept by Vendor in a physically secure location and Vendor shall ensure that the access to such PHI is restricted to employees and representatives of Vendor who have been specifically authorized to have such access. Vendor will implement and maintain measures to ensure the security and integrity of PHI to protect it against loss, alteration or destruction, and against access by unauthorized persons, by selecting and maintaining the most appropriate products, tools and procedures. Vendor and its representatives shall otherwise acquire, use, retain, maintain, transfer and/or disclose any PHI in accordance with and only as permitted by applicable Ontario and/or Canadian privacy legislation. Without limiting the generality of the foregoing, any PHI shall not be used to contact the individual(s) to whom it relates. PHI may not be removed from the Purchaser’s site without prior written authorization, but in any event PHI may not be transferred to or stored outside of Ontario. Vendor and its representatives shall at all times comply with all obligations applicable to it/them under all applicable data protection and privacy laws in relation to all PHI that is accessed or processed by it in the course of performing the work, including by complying with all data protection and privacy laws applicable to cross border data flows of PHI and required security measures for PHI. Vendor shall immediately report to Purchaser any loss, unauthorized use, disclosure of PHI and shall take all actions reasonably required to mitigate against the consequences of such loss, unauthorized use or disclosure. Where Vendor or its representatives obtain access to any PHI that is not required by Vendor to perform the work, Vendor shall immediately notify Purchaser and comply with Purchaser’s instructions to return or destroy any copies of such PHI. Vendor shall remove all PHI from any media taken out of service and shall destroy or securely erase such media (meaning, permanently erase such that any data cannot be recovered). No media on which PHI is stored may be used or re-used to store data of any other customer of Vendor or to deliver data to a third party, including another Vendor customer, unless securely erased.
10. Ownership, Licensing
Ownership of any documents, including specifications or drawings, supplied by the Purchaser, or any documents or work product produced by the Vendor upon request of the Purchaser, including all associated intellectual property rights therein, shall rest with the Purchaser at all times. To the extent Vendor acquires any such rights, Vendor assigns and shall assign to Purchaser; and shall take any future steps reasonably required to effect such assignment from Vendor, its employees, agents and subcontractors. Where a good or service includes provision to Purchaser of software and/or other pre-existing Vendor materials, Vendor hereby grants a perpetual, irrevocable (subject to payment of applicable license fees), non-exclusive license to use such software and other pre-existing Vendor materials for its normal and intended purposes subject to any use limitations specified in the Purchase Order. For further certainty, any third party proprietary information (expressly including any information concerning interfaces and/or file formats) to which Vendor is provided access by Purchaser, or as contained in any Purchaser provided materials, may not be used by Vendor except as required to perform the work for Purchaser. Where any deliverables include new software created in the performance of the work, Vendor shall supply Purchaser with the software in both object code and documented source code form, and any license to pre-existing components embedded in such deliverable shall include the right to modify such software. Where goods constitute pre-existing software: (a) Vendor shall retain copyright and all other intellectual rights in its preexisting software, with Purchaser only receiving a license as provided for herein; (b) Ownership of any patches, updates or enhancements created by Vendor as part of its normal development and not based on specific Purchaser provided requirements, and any bug fixes and maintenance updates developed to correct defects or errors in the software, shall be licensed to Purchaser as part of the software license set out in this provision and ownership of such bug fixes and maintenance updates shall not be transferred to Purchaser; (c) Purchaser shall not reverse engineer, disassemble or modify any such pre-existing software that is provided in object code form only. Each party agrees to comply with applicable export control laws and regulations, including Canadian export control requirements that apply to U.S. origin goods and technology.
11. Warranty, Guarantee, Compliance
Vendor represents, warrants and covenants that (a) the goods and/or work shall conform to the description and applicable specifications, drawings, samples, including description furnished or specified by the Purchaser, specified/referenced in this Purchase Order or RFP (where applicable), and/or required by applicable law or standards, shall be of good merchantable quality, of good material and workmanship, free from defect in manufacturing or design, and fit and sufficient for the purposes intended, and free and clear of all liens and encumbrances, and that the Vendor has absolute title and hereby conveys such title; (b) work shall be performed in a professional manner by properly trained and experienced personnel and in accordance with industry standards and best practices and documented requirements; and (c) documentation provided by Vendor shall accurately and comprehensively describe the installation, configuration, operation, (user level) maintenance, performance and functionality of the goods and shall be sufficient to permit a technically competent person to effectively install, use and maintain (user level maintenance) the goods. Vendor shall promptly remedy any deficiency. The foregoing is in addition to any warranty or service guarantee given by the Vendor to the Purchaser or implied by law. The Vendor shall comply with all federal, provincial and local laws, regulations and orders applicable to the manufacture, sale, packaging, labeling and delivery of the goods and to the performance of the work. While working at Purchasers’ premises, Vendor and its personnel shall comply with all reasonable facilities and security policies of Purchaser as were made known to Vendor.
12. Indemnification; Liability limitation
Vendor shall be responsible for and shall defend, save harmless and indemnify the Purchaser from and against all losses, costs, damages, suits, claims and demands of every nature whatsoever arising out of or by reason of the delivery/performance or purported delivery/performance hereunder by the Vendor, including without limitation those made or sustained in respect of property damage, personal injury (including death), except to the extent arising from Purchaser’s gross negligence or willful misconduct. Vendor agrees to defend, indemnify and hold Purchaser harmless against any claims, damages or liability arising from the infringement by the work and/or goods supplied, or receipt, possession or use by Purchaser for their reasonably intended purpose, of any third party’s intellectual property rights (including copyright, patents and trade secrets). In the event of infringement, Vendor shall also promptly modify the goods/works such that they are no longer infringing but without adversely affecting their functionality, performance or compatibility or shall obtain a license for Purchaser to support the permitted use. Neither party shall be liable to the other for any indirect or consequential damages including any lost profits.
Failure of the Purchaser to insist upon strict performance of any of the terms and conditions hereunder, or to exercise any rights or remedies provided herein or by law, or to properly notify Vendor in the event of breach, or the acceptance of or payment for any goods hereunder, or approval of design, shall not constitute waiver by Purchaser of any of its rights hereunder nor release Vendor of any warranties or obligations of this purchase order.
Use of the Purchaser’s name by the Vendor in any way which could be interpreted as constituting advertising, marketing or solicitation of business without the prior written consent of the Purchaser’s public relations department is expressly forbidden.
15. Governing Law
This Purchase Order, and the delivery of the goods and performance of any work under this Purchase Order, shall be construed under and governed by the laws of the Province of Ontario, Canada, and the federal laws of Canada applicable thereto, excluding any conflict of law provisions. Any claims or proceedings instituted by Vendor against Purchaser in relation to this Purchaser Order, the goods or work provided hereunder, and/or any RFP by which such goods or work were procured, shall be brought solely in the courts of Ontario, and Vendor shall accordingly attorn to the jurisdiction of the courts of Ontario.
Vendor shall not assign, subcontract or otherwise transfer this Purchase Order or its performance, in whole or in part, by operation of law or otherwise, without the express written consent of the Purchaser.
Except as disclosed to Purchaser in writing and accepted by Purchaser, software shall not include any disabling code. All goods shall conform to: (a) Vendor’s published documentation; (b) where the Purchase Order is issued in respect to a Request for Proposal (“RFP”), the business, functional, technical and performance requirements specified in the RFP, except as such requirements are supplemented by Vendor’s responses to such requirements as contained in Vendor’s proposal/response to the RFP, provided that notwithstanding the foregoing, any specifications or requirements stated on the face of the subject Purchase Order shall supersede; (c) applicable industry standards; and (d) Purchaser Standards (version as set out at <www.sickkids.ca/poterms> as of the date of issuance of the Purchase Order). Where goods include software, the documentation provided by Vendor shall include directions as reasonably required for Purchaser to perform backups and a system recovery. Vendor shall not be responsible for any data loss arising from a failure by Purchaser to follow such directions.
18. Warranty Services
Except as otherwise provided in the Purchase Order, any supply of goods or performance of work shall include the provision of warranty services to correct defects (including non-conformance with documented requirements) in the goods or work. Such warranty services shall be provided by Vendor for a period of 12 months from acceptance. Thereafter, should Customer desire to acquire, at its option and without any obligation herein to so acquire, additional warranty services, under a separate signed, written contract with the Vendor, Vendor shall offer such warranty services (in respect of goods, which may include software), for additional one year periods for at least 7 years following purchase (and thereafter for at least one year following written notice of Vendor of its intention to discontinue offering), at an annual fee which shall not exceed the annual fee for the initial chargeable annual term plus the general CPI+ 2%; but in any event which shall not exceed the year over year increase in the list price for the applicable goods; and upon terms that are no less favourable to Purchaser than those set out herein. Such warranty services shall include: (a) the provision of updates as provided by Vendor to its other purchasers of the goods who are receiving warranty services; (b) the provision of technical support and defect correction, including prompt provision of reasonable workarounds, and the availability of replacement parts and consumables/disposables to acquire, as applicable; and (c) in the case of equipment, performance of preventative maintenance on the equipment at a frequency as recommended by Vendor. Where the goods include software, then as part of such warranty services, Vendor shall ensure that all software components are promptly updated to address any known critical issues or security vulnerabilities, and that such software remains compatible with such updates of any third party components such as operating systems that the software must interact with. If required by Vendor, Purchaser agrees to apply software updates within 12 months of receipt so long as such updates do not adversely affect Purchaser’s use and are provided at no additional charge. During the life of any goods constituting equipment (or software operating on equipment), Vendor shall notify Purchaser of any safety alerts. Vendor will not remove any component of the goods (such as storage media) containing any PHI from Vendor’s facilities unless such information is permanently and destructively erased prior to removal. Any remote access by Vendor during implementation or provision of warranty services shall be performed in compliance with Purchaser’s Remote Access Policy (version as set out at <www.sickkids.ca/poterms> as of the date of issuance of the Purchase Order).
19. Medical Devices
Where any goods constitute a "medical device" or are otherwise regulated by Health Canada: (a) prior to delivery Vendor shall obtain, and shall maintain throughout the useful life of the goods, any required Health Canada licenses in respect of the good and all updates and upgrades provided to Purchaser; and (b) unless otherwise agreed by Purchaser in writing, all updates and patches shall be applied by Vendor.
To the extent any Vendor quotation contains a reference to specific number of hours in respect of work to be performed, such quantity shall be deemed provided for reference purposes and not as a limitation on the work required to be performed by Vendor to fulfill its obligations. Unless otherwise agreed, Purchaser shall not be liable to pay any amount which exceeds the total value stated on the Purchase Order.
21. Freedom of Information
As of January 1, 2012, Purchaser will be a ‘hospital’ within the meaning of Ontario’s Freedom of Information and Protection of Privacy Act (“FIPPA”) and, as a result, all persons may have a legal right of access to information in the custody and/or control of Purchaser, subject to a limited set of exemptions. Vendor acknowledges and agrees that procurement related information and other information covered by FIPPA may be disclosed in accordance with the provisions of FIPPA, based on a request and/or an order or decision of the Information and Privacy Commissioner or otherwise as required under the applicable law.
22. Compliance with WSIB and other applicable legislation
With respect to the performance of any work hereunder to be conducted by Vendor on Purchaser’s premises, Vendor agrees to comply with all requirements of the WSIB (Ontario) and obtain and maintain during the term of performance the necessary coverage for Vendor and its employees and shall provide a WSIB clearance certificate indicating all assessments have been paid throughout the period of performance (a) prior to commencement of the work; and (b) thereafter upon request from Purchaser. Vendor shall comply with all applicable law including, without limitation, the Labour Relations Code, the Employment Standards Act, the Occupational Health and Safety Act, PIPEDA, PHIPA and the Human Rights Code, including any amendments thereto; and shall provide evidence of Vendor’s compliance with WHMIS when requested by Purchaser.
23. Conflict of Interest
Vendor, including its employees, agents and subcontractors, shall not engage in any activity which creates a Conflict of Interest in respect of the procurement hereunder, and shall promptly notify Purchaser of any actual, potential or apparent conflict of interest that arises during performance. A “Conflict of Interest” means a situation in which financial or other personal considerations have the potential to compromise or bias professional judgment and objectivity. An apparent Conflict of Interest is one in which a reasonable person would think that the professional’s judgment is likely to be compromised. A Conflict of Interest also includes any unlawful, unethical or fraudulent activity, or any violation by Vendor or its personnel of Vendor’s code of business/ethical conduct. Vendor shall adhere to commonly accepted norms of ethical business practices, including establishing, and ensuring adherence to, precautions to prevent its employees, agents and subcontractors from providing or offering gifts or hospitality of greater than nominal value to any person acting on behalf of or employed by the Purchaser.
24. Most Favoured Customer
Vendor shall ensure that Customer receives pricing for any goods or work provided hereunder at least as favourable as pricing offered by the Vendor to its most favoured comparable customer for like quantities/performance of the same or substantially similar goods/work. Should Customer desire to acquire, at its option and without any obligation herein to so acquire, additional quantities of the same goods, under a separate signed, written contract with the Vendor, Vendor shall offer such goods at no greater than the price originally charged herein for a period of twelve months from the effective date of the Purchase Order (and with respect to consumables/disposables, at prices that shall not increase by more than CPI for a period of five years from the effective date of the Purchase Order).