F. Trottier Construction Ltd (FTC) – General Terms and Conditions of Purchase Order (P/O) For Subcontractors and Professional Services (hereinafter referred to as “Supplier”). Version 2017
1.0 APPLICATION OF THE TERMS AND CONDITIONS
1.1 Supplier shall be deemed to accept the terms and conditions herein (hereinafter referred to as the “Conditions“) by accepting a work order, purchase order, or other work instructions or change orders (hereinafter referred to collectively as “a P/O”), the commencement of work, including the shipment of Products and/or equipment, or the provision of services. No terms or conditions other than these Terms and no agreement or understanding, oral or written, in any way shall be deemed to modify the Terms which shall bind FTC and Supplier. Supplier agrees that, notwithstanding any provision to the contrary or any written documentation or oral statements made by Supplier, including :(i) any summons, acknowledgement, or similar instrument issued by the Supplier, (ii) no other instrument shall be deemed to be a counter-offer, amendment, revision or otherwise to the Bid or these Conditions, and (iii) no term or condition set forth in the Supplier’s bid, or similar instrument, shall have any effect or modify the Conditions.
1.2 F. Trottier Construction Ltd (“FTC”) hereby retains the Supplier (collectively the “Parties” and individually, a “Party”) as an independent contractor to perform, and the Supplier agrees to perform, the work as an independent contractor;
1.3 All terms used in these Conditions shall have the meaning given to them and all other conditions which have a meaning generally used in the construction industry shall be given that meaning for the purposes of interpreting the Conditions;
1.4 The agreement between the Client and FTC (collectively, the “Main Agreement“) shall be deemed to form part of the P/O. Supplier acknowledges that it has read the Main Agreement and is satisfied therewith and shall be obligated to perform its obligations to FTC by making the necessary adjustments as if the Client were FTC and Supplier were the general contractor;
1.5 Notwithstanding the foregoing, in the case of interpretation, the parties agree that the Terms shall prevail over the provisions of the primary contract between FTC and its Client.
2.0 WORKS TO BE PERFORMED
2.1 Products and/or services (“Work“) ordered by FTC shall be supplied and invoiced strictly in accordance with the P/O, and any other documents relating to the Work as requested by FTC, including, without limitation, in accordance with the specifications, prices provided, and schedule agreed to with FTC and in accordance with Applicable Laws, policies and other Client requirements.
2.2 The Supplier shall provide the labour, materials, supplies, equipment and services necessary to deliver the Work in accordance with the requirements of the P/O, including, without limitation, the provision of all labour, materials, supplies, equipment and any other Products or services that are necessary and can reasonably be understood or assumed to be included as part of the Work. If any part of the Work, in the reasonable judgment of FTC, requires correction, Supplier shall immediately make the necessary corrections at its expense. While the Work is in progress, Supplier shall keep the work area clean and tidy.
2.3 Work: (i) shall be carried out in a professional and competent manner by persons qualified and competent in their occupations, to standards consistent with the level of care and skill ordinarily exercised by members of the same trade or profession practising or working in similar circumstances with respect to the Work Site (“Work Site“); and (ii) must comply with all federal, provincial and local laws, ordinances, rules, regulations and codes, including necessary environmental protection and health and safety rules (“Applicable Laws“). All materials and supplies for the Work must be new and any substitutions must be approved by FTC and must be of equal or better quality than the materials or supplies specified in the drawings and specifications.
2.4 Supplier shall be fully responsible for the professional quality, technical accuracy, speed and completeness of the Work and shall at all times exercise care and diligence and in the best interests of FTC, the Client and Client’s property. At all times during the term of the Work and at the request of FTC, the Subcontractor shall provide evidence that it and its employees have complied with the requirements of Applicable Laws in the applicable province, including payment of the fees prescribed therein. At all times, the Subcontractor shall indemnify FTC from and against all claims, demands, losses, costs, damages, actions, suits or proceedings arising out of the performance of the Work by unqualified persons. For the avoidance of doubt, the Supplier is responsible for obtaining all permits, licenses, inspections and certificates necessary for the performance of the Work by all persons it employs and the price of the P/O includes the cost of such permits, licenses, inspections and certificates in addition to the cost of employing qualified and competent persons in accordance with their occupations. If, in the opinion of FTC, the Work has been performed in a manner inconsistent with the commitments under this paragraph or if the Supplier is unable to perform the entire Work in strict accordance with the P/O within the time specified, in addition to its right to terminate the P/O under paragraph 5.0 hereof, FTC may at its option (1) deduct from the amounts otherwise payable to the Supplier an amount equal to the difference in value between the Work as performed and the Work as set forth in the P/O documents, or (2) notwithstanding the value set forth in the P/O, pay the Supplier a value of the Work based on the Time and Material (T&M) method of valuation of the work performed or to be performed by the Supplier to complete the Work. In the event FTC elects to pay the value of the Work on a T&M basis, payment shall be conditional upon receipt by FTC of all necessary supporting documentation, with paragraph 4.5 applying mutatis mutandis. In addition to 4.5, because of the particularity of a T&M valuation, supporting documentation must include: a detailed record of hours worked for each of the required employees or subcontractors, proof that the employees or subcontractors hold the necessary certificates of compliance for the work at all times, proof (bank statements) of payment of wages or subcontract monies.
2.5 At any time, FTC may issue a change to the Work and any resulting change to the Contract Price or the schedule agreed to by FTC must be confirmed in writing by the Parties. No change in the Work or any change in the Contract Price or Schedule proposed by Supplier will be binding on FTC unless confirmed in writing by FTC. All changes confirmed by FTC in writing shall form part of the P/O.
2.6 Supplier shall only use subcontractors that shall be pre-approved in writing by FTC. Supplier shall be solely responsible for the acts or omissions of its subcontractors and FTC’s approval of any subcontractor shall not limit Supplier’s liability in this regard. Subcontractors must maintain and maintain in force all insurance that Supplier is required to maintain and maintain under the P/O.
2.7 The Supplier declares that it has had the opportunity to inspect the Work Site prior to the commencement of the Work to the extent it deemed necessary to assess the difficulties of execution inherent in the Work (for construction and design purposes) whether they originate from the Work Site, the proximity of adjacent facilities, site conditions, equipment and any other structures. The Supplier shall therefore be deemed to have accepted the Work Site. No change in the contract price or schedule shall be permitted as a result of the Work Site.
3.0 CONFLICT OF INTEREST
3.1 Supplier shall promptly disclose to FTC any situation that is actual or potential or that could reasonably be construed as an actual or perceived conflict or potential conflict of interest, and thereafter shall comply with any terms and conditions prescribed by FTC arising from such disclosure. Disclosure must be made in writing to :
F. Trottier Construction Ltd.
420 McArthur Avenue, Ottawa,
Ontario K1K 1G6
Attn: Vice-President, Operations
3.2 Violation of this conflict of interest provision may result in damage to FTC for which FTC reserves its remedies against Supplier.
4.0 CONTRACT PRICE AND PAYMENT OF ACCOUNTS
4.1 PAYMENT CLAIMS
4.1.1 Subject to paragraph 2.4, in the event of non-conforming performance of the Work or failure to meet deadlines, the amount to be paid by FTC for the Work shall be as set forth in P/O. (“Contract Price”).
4.1.2 The contract price : (i) exclude GST, HST, QST and PST in effect in the province of the Work Site; and (ii) include all other taxes, customs duties, tariffs and/or levies that may be payable in connection with the Work.
4.1.3 Application for payment as provided in Article 4.4 – PAYMENT may be made on a monthly basis depending on the progress of the Subcontract Work.
4.1.4 In order to validate the P/O, the supplier must submit to FTC, 48 hours after the P/O is issued, a WSIB Clearance Certificate (FTC’s WSIB#1814613) and if the Work Site is in the province of Quebec, an Attestation from Revenu Québec, a CSST registration confirmation, a copy of the company’s article of incorporation or the NEQ, a certificate of attestation confirming the state of registration of a company in the enterprise register, proof of the authority to execute this document, a general liability insurance certificate worth $5,000,000.00 accompanied by each of the endorsements including Construction Fred Trottier (Québec) Ltée as co-insureds.
4.1.5 At least 10 calendar days prior to each claim for payment, a schedule of the values of the Subcontract Work parts (hereinafter, the “Values”), constituting in total the amount of the P/O price must be submitted to FTC to facilitate the evaluation of claims for payment. In the event that a payment claim requires a T&M evaluation by FTC pursuant to paragraph 2.4, FTC will be given 60 calendar days from receipt of all supporting documentation requested by FTC.
4.1.6 The detailed invoice shall be established in such a manner and supported by such documentation as FTC may reasonably require. Once approved by FTC, it shall form the basis of Application for payment, unless it proves to be in error.
4.1.7 The Supplier shall include a statement based on the detailed invoice with each application for payment.
4.1.8 Application for payment for Products delivered to the Work Site but not yet incorporated into the Subcontract Work shall be supported and substantiated by such evidence as FTC may reasonably require to establish the value of the Products and to certify their delivery.
4.2 PAYMENT WITHHOLDING
4.2.1 If, due to climatic or other conditions reasonably beyond the Supplier’s control, any part of the Subcontract Work cannot be fully performed or executed, FTC shall not withhold or suspend for that reason full payment for that part of the Subcontract Work which, as certified by the Professional’s certificate, is completed; provided, however, that FTC may withhold such amount as it deems sufficient and reasonable to cover the cost of the performance of the unfinished parts of the Subcontract Work until such time as the unfinished parts of the Subcontract Work have been completed. As it is agreed that FTC shall not be liable for damages due to Supplier’s delay for any reason whatsoever, FTC may also withhold an amount it deems sufficient and reasonable for all costs related to Supplier’s failure to complete the Work within the time specified in the Schedule. For the purposes hereof, Completion of the Subcontract Work occurs when the Subcontract Work is ready to be used, or is in fact being used, for its intended purpose and is so certified by the Consultant if the terms of the Main Agreement require the Consultant to issue such certification.
4.3 NON-CONFORMING WORKS
4.3.1 No payment made by FTC under P/O, nor the Client’s use or occupancy of all or part of the Work, shall and shall not constitute acceptance of the Work by FTC or the Client.
4.4.1 Unless otherwise specified in the P/O or applicable laws, FTC shall :
.1 make progress payments to the Supplier in accordance with the Contract Price, as provided in paragraph 4.4.2 of this Article. The amounts of these payments shall be as certified by the Professional or the Client;
.2 upon substantial completion of the Work, pay the Supplier the outstanding balance of the holdback, when due; and
.3 upon issuance of the Final Certificate of Payment, pay the Supplier the outstanding balance of the Contract Price, when due.
4.4.2 Supplier shall submit Application for payment accompanied by sworn affidavits and other documents as required by the Subcontract Documents as specified in Section 4.5 on or before the 20th day of each month (hereinafter referred to as the Claim Date) for approval and processing by FTC. The amount requested shall represent the value, in proportion to the amount of the P/O, of the Work performed and the Products delivered to the Work Site up to the 30th day of the month. FTC shall pay to Supplier, no later than 7 calendar days after the date of receipt of payment from Client, whichever is later, 100% of the amount claimed less the holdback provided in the P/O or such other amount as FTC or the Professional determines to be due. If FTC or the Professional changes the amount of Supplier’s claim, Supplier shall be promptly notified in writing by FTC of the changes or modifications and shall be given an opportunity to promptly substantiate its claim.
4.4.3 In the event that the Professional fails to issue a certificate authorising payment to FTC or if the Client fails to make payment within the time period specified in the Main Agreement :
(a) FTC will immediately notify the Client of its failure to make payment as required under the terms of the Main Agreement, and at the same time will notify the Supplier. To this effect, FTC agrees to :
(a) issue a notice of non-payment within the time limits prescribed by the Act;
(b) issue a notice in the form prescribed by the Regulation (see O. Reg. 303/18, Forms, s. 2 (1.1));
(c) detail the amount that will not be paid and the reasons for non-payment; and
(d) pay all amounts not subject to the notice.
(b) If the Client fails to remedy the default within the time period specified in the Master Agreement, FTC will cease work within 10 days of an arbitration award ordering payment and will, within the time periods specified in the lien or legal hypothec legislation, take such steps as are necessary to enforce all of its rights and remedies to recover the amounts due. FTC will promptly provide Supplier with written notice of all steps taken to obtain payment.
(c) In the event that FTC has complied with all of the provisions of this paragraph, the time for payment provided for in paragraph 4.4.2 of this Article shall be extended by the statutory periods from the day provided for in paragraph 4.4.2 of this Article and the amount of the payment so suspended shall be deemed to be a holdback authorized under the terms of the P/O and shall be payable on the date provided for in the Act.
(d) Notwithstanding any suspension hereunder of the obligation to make the payment that would otherwise be due under Section 4.4.2 of this Article, FTC shall not be required to pay interest on the amount of the payment that is withheld unless otherwise ordered by arbitration.
4.4.4 If no claim exists against the Work and Supplier has submitted to FTC an affidavit certifying that all accounts for labor, sub-subcontracts, materials, construction materials and equipment, and any other debts incurred by Supplier in the performance of the Work for which FTC may be liable have been submitted to FTC, have been paid in full, except for amounts withheld from amounts payable to the Supplier pursuant to this paragraph or which are the subject of a dispute, the amount withheld from instalment payments made under Article 22.214.171.124 of this Article that is payable under Article 126.96.36.199 of this Article is due and payable.
(a) In common law jurisdictions, on the day following the end of the holdback period stipulated in the lien legislation applicable to the Place of the Work. If the Work takes place in Quebec, the holdback amount becomes due and payable in accordance with P/O. FTC may withhold any portion of the amount required by law to satisfy liens or legal hypothecs of the Supplier’s subcontractors or suppliers or, if the lien legislation applicable to the Work Site permits, other monetary claims by third parties against the Supplier that may be enforceable against FTC.
(a) If either Party defaults in making any payments due under the P/O or as a result of an arbitral award or court judgment, interest at the prime annual rate quoted by the Bank of Canada shall be applicable to such unpaid amounts until paid in full.
(b) Interest shall be calculated at the rate and in the manner prescribed in the preceding paragraph on the established amount of any claim settled in accordance with, from the date the amount would have been payable under the P/O if there had been no dispute to the date it is paid.
4.4.6 Non-compliance following payment;
No payment made by FTC under the P/O, nor the use or occupancy of the Work in whole or in part, shall constitute acceptance of the Subcontract Work or Products not in accordance with the P/O or Subcontract Documents forming part thereof.
4.5 Required Supporting Documents WITH EACH PAYMENT REQUEST
4.5.1 Subject to any payment schedule provided elsewhere in the P/O , the Supplier shall submit monthly Application for payment of the contract price for work performed since its last claim for payment. Each claim to be submitted to FTC requires :
(a) a detailed, itemized invoice that includes a breakdown of labor and material costs, purchase order number, name of FTC Project, name of FTC Project Manager, description of work performed and location, and any other information reasonably required by FTC or the Client;
(b) a certificate from the WSIB and if the Work Site is located in Quebec, a letter of compliance from the Commission de la santé et en sécurité au travail (CSST) certifying that the Supplier is in compliance with its legal obligations, including, in particular, its reporting obligations and its obligations to pay the required contributions; and
(c) any other reasonable information or documentation required by FTC or the Client. No request for payment will be processed by FTC unless it is received in advance:
i. a letter confirming that the insurance coverage that the Supplier is required to obtain and maintain in force under the P/O; and
ii. an affidavit of partial or final release certifying that all accounts for labor, sub-subcontracts, products, construction materials, and any other debts incurred by Supplier in the performance of the Work for which FTC may be held liable have been paid in full;
iii. evidence that all permits for the work have been obtained. In addition to the foregoing, the application for final payment must, in particular, provide for the following:
(i) proof that there is no claim of lien and if the Work Site is in Québec, the Work shall be deemed to have received a Certificate of Substantial Performance 30 days following the date on which the Work is ready for use or is used for the intended purpose and, if there is a payment certifier, is certified by the payment certifier otherwise as determined by FTC and in any event, a formal waiver of the legal hypothec of the Supplier and all its subcontractors and its own suppliers who have denounced their contract and a letter of compliance from the Commission de la construction du Québec (CCQ) and;
(ii) as-built drawings;
(iii) the Supplier’s warranties for equipment, systems and materials; and
(iv) all manuals, diagrams and technical guides for commissioning.
(i) FTC determines that the Supplier’s invoice is not correct;
(ii) FTC disputes the invoice amount;
(iii) FTC determines that the work has not been satisfactorily completed or is defective; or
(iv) the request for payment is incomplete, FTC shall be required to notify Supplier accordingly and may reject the invoice and withhold payment until the problem has been resolved and if only a portion of an invoice amount is disputed, FTC will pay only the undisputed portion of the invoice if necessary.
4.5.3 Payment of the Supplier’s invoices shall be made by cheque in accordance with paragraph 4.4.2. Payment does not constitute acceptance of the Work by FTC, will not prejudice FTC’s right to inspect or audit the Work or to exercise its remedies, including its right to recover from the Supplier any amount already paid for the Work. All progress payments of the Contract Price are subject to holdbacks under the Construction Liens Act applicable to the Work Site.
4.5.4 Supplier acknowledges that FTC’s main contract with its Client may include requirements for prompt invoicing and, therefore, and in any event, Supplier agrees to waive its payment for the Work if it is not :
(i) not invoiced within 6 months of the P/O issue date where such work is scheduled for completion within 3 months of the P/O issue date; or
(ii) not invoiced within 6 months of substantial completion of the Work when the work is expected to be completed beyond 3 months from the P/O issue date.
4.5.5 FTC may deduct from any amount owing by FTC to Supplier any amount owing to FTC by Supplier under the P/O or any other contract, purchase order, or agreement between FTC and Supplier.
4.6 CONTRACT SECURITY
4.6.1 In the event that the Contract Price is equal to or greater than $100,000.00 or as otherwise provided, Supplier shall guarantee performance of the Work to FTC prior to the commencement of the Work or within the specified time;
.1 a performance bond and a labour and material payment bond, each representing not less than 50% of the contract price; or
.2 a security deposit or irrevocable letter of credit representing at least 20% of the contract price payable to F. Trottier Construction Ltd , which shall be returned to the Supplier, if not cashed or invoked, no later than 90 days after days after final completion of the Work.
4.6.2 All surety bonds, deposits or irrevocable letters of credit shall be issued by a surety company duly authorized to transact surety business in the province or territory of the Place of the Work and shall be maintained in force for the duration of Supplier’s Work and for 90 days after completion of all work on Client’s construction project.
5.0 TERMINATION OF P/O
5.1 FTC may, immediately and unilaterally by written notice to Supplier (hereinafter “Notice of Default”), terminate all or any part of the P/O in the event that: (i) Supplier has been late in commencing or has failed to perform the Work or any part thereof to the satisfaction of FTC; or (ii) Supplier has become insolvent; (iii) where Supplier has committed an act of bankruptcy; (iv) where Supplier has abandoned the Work; (v) where Supplier has assigned its rights in the P/O to a third party without the consent of FTC; or (vi) where Supplier fails to perform its obligations in accordance with the Conditions, including, without limiting the generality of the foregoing, the obligations set forth in Section 2 of the Conditions. For the purposes of this paragraph :
(A) If the Supplier is declared bankrupt or if, by reason of its insolvency, the Supplier makes a general assignment for the benefit of its creditors or a receiver is assigned to it, FTC may, without prejudice to any other rights or remedies it may have, revoke the Supplier’s right to continue the Subcontract Work by notice in Writing to the Supplier or the receiver or trustee in bankruptcy.
(B) If the Supplier fails to perform the Subcontract Work in a proper manner, or otherwise seriously fails to comply with the requirements of the P/O, FTC may, without prejudice to any other rights or remedies it may have, give Written Notice to the Supplier that it is in breach of its contractual obligations and direct the Supplier to remedy such breach within 3 Business Days from the date of receipt of the Written Notice.
(C) If the default cannot be remedied within the 3 specified business days, or within the period subsequently agreed in writing by the parties, Supplier shall be deemed to have complied with FTC’s instructions if it complies with the following three conditions:
i- it shall begin to remedy the default within the prescribed period;
ii- it provides FTC, within the 3 business days specified, with an acceptable schedule for completion of the correction;
iii- it completely remedies the default in accordance with this schedule and the terms of the subcontract.
(D) If Supplier does not cure the failure within the required time or within the time subsequently agreed in writing by the parties, FTC may, without prejudice to any other rights or remedies it may have, at its option :
i- correct the default and deduct the cost of such default from any payment then due or subsequently due to the Supplier; or
ii- revoke the Supplier’s right to continue the Subcontract Work in whole or in part or terminate the P/O.
(E) If, pursuant to Sections 5.1(A) and 5.1(D) FTC revokes Supplier’s right to continue performance of the Subcontract Work, Supplier shall have the right to :
i- to take possession of the Subcontract Work and Products at the Place of the Work; subject to the rights of third parties, to use the Construction Equipment at the Place of the Work; and to complete the Subcontract Work in such manner as it deems proper;
ii- to withhold any other payment to the Supplier until a certificate of final payment has been issued;
iii- to charge to the Supplier the amount by which the total expenses necessary to complete the Subcontract Work have been incurred, together with such reasonable allowance as the Supplier may determine to cover the cost of any corrections required to the work performed by the Supplier;
(F) It is understood that the contractual obligations of the Supplier with regard to the quality, correctness and warranty of the works executed by him up to the time of termination of the P/O shall continue after the date of such termination of the P/O.
5.2 As a result of the foregoing and for the avoidance of doubt, in the event of termination, FTC shall be liable only for payment of the value of the Work performed under the P/O as of the date of termination, including a reasonable amount to compensate the Supplier for the costs directly related to the mobilization to perform the Work (“Mobilization Costs“). The Mobilization Costs shall not include profit or overhead, administration or costs for loss of opportunity for the Supplier. Throughout the performance of the Work, the Supplier shall exercise prudence and diligence so as to minimize the Mobilization Costs.
5.3 For the purposes of this paragraph, FTC and its Representatives shall have free access to the Subcontract Work at all times, whether in preparation or in progress, for inspection. The Supplier shall cooperate by providing appropriate facilities to permit such access.
5.4 Supplier shall promptly deliver to FTC all certificates and inspection reports relating to the Subcontract Work received by Supplier.
5.5 If Supplier recovers or permits to be recovered any part of its work without an inspection necessary in the opinion of FTC having been made, completed or given, Supplier shall, if requested to do so by FTC, uncover the part of the work in question and permit the inspection to proceed satisfactorily and redo the recovery work at its own expense. It is Supplier’s responsibility to verify with FTC whether an inspection is necessary before recovering or permitting recovery of its Work.
5.6 If there are reasonable grounds for doing so, FTC may order a special examination of one or more parts of the Subcontract Work to confirm that such work conforms to the Subcontract Documents. The cost of the inspection shall be borne by the Supplier.
6.0 INSURANCE AND WORKERS’ COMPENSATION
6.1 Supplier shall obtain and maintain in force throughout the term of the Work the following insurance coverage prior to the commencement of the Work and provide FTC with such proof of coverage:
(a) general liability insurance coverage in an amount of at least five million dollars ($5,000,000) per incident for bodily injury, personal injury, death, and property damage. The insurance coverage may not be reduced, cancelled or changed without written notice to FTC ;
(b) insurance coverage confirming that the Supplier has motor liability insurance covering the ownership, operation and maintenance of all motor vehicles whether or not owned by the Supplier and leased motor vehicles. The insurance coverage shall have a minimum coverage of two million dollars ($2,000,000) per occurrence for bodily injury, death or property damage (including loss of use) ;
(c) confirmation that the Supplier’s employees and subcontractors have insurance coverage under the Workers’ Compensation Act or equivalent statutory compensation plan in force in the province of the Work Location and that the required premiums are current.
6.2 All insurance policies shall (i) for property insurance, contain a waiver of subrogation in favour of the Indemnitees and (ii) for all liability insurance, provide for Construction Fred Trottier (Québec) Ltée and its assigns and any other parties provided as such in the main contract with the Client (“Indemnitees”) as additional insured.
6.3 Supplier’s obligations to maintain minimum insurance coverage shall in no way limit Supplier’s liability or obligations to FTC or Client under P/O.
6.4 FTC may require Supplier to purchase higher or other types of insurance coverage(s) as appropriate to the circumstances of the Work or P/O or as prescribed by the Main Agreement with Client.
6.5 If the Work includes or is performed by professional services, Supplier shall provide proof of professional errors or omissions insurance coverage with a limit per claim of at least two million dollars ($2,000,000).
7.0 INDEMNITIES AND LIABILITY
7.1 If, and in the event of any act or omission of the Supplier or its employees, servants, subcontractors, agents or representatives or otherwise, the Supplier shall be deemed to be liable under the Act of : (i) breakage or destruction of property that is the property of FTC or a third party (including Client), and/or (ii) death or injury to persons, including employees of FTC or third parties (including Client), and/or (iii) any claim for infringement of intellectual property rights, and/or (iv) any claim for breach of confidentiality obligations or unauthorized disclosure of information, Supplier shall be liable to indemnify, to defend and hold harmless, FTC, its assigns, affiliates, and Client and their officers, directors, employees, agents, successors, and assigns (collectively, the “Indemnified Parties”) from and against any and all claims, actions, damages, demands, liabilities, costs and expenses, including attorneys’ fees and expenses (“Losses”) that FTC or any other Indemnified Party suffers as a result of Supplier’s acts, facts, faults or omissions. The Supplier shall pay or reimburse FTC or any other Indemnified Party promptly for any Losses related thereto. The provisions of this section shall survive the P/O or termination thereof.
7.2 Supplier shall indemnify FTC, its assigns and affiliates and each of their officers, directors and employees (collectively, “Fred Trottier Construction (Québec) Limited Indemnified Parties“) from and against all claims and losses of any nature whatsoever (including, without limitation, all fines and penalties) suffered by or imposed upon any Indemnified Party as a result of Supplier’s failure to comply with applicable workers’ compensation legislation in the jurisdiction where the Work Site is located.
8.1 Supplier shall not assign its rights to P/O without the consent of FTC, which consent shall be confirmed in writing. If the Supplier subcontracts or delegates its obligations in the P/O to a third party, the Supplier shall remain fully responsible for the performance of all obligations under the P/O . FTC may, upon written notice to the Supplier, assign its rights in the P/O to a third party without the Supplier’s consent.
9.1 If the Supplier provides labour and material services under P/O the Supplier shall keep complete and accurate books, records, accounts and invoices. At the request of FTC and/or Client and at any time, FTC shall be entitled to inspect or cause to be inspected or audited all books, records, accounts and invoices of Supplier related to the P/O .
10.0 HEALTH, SAFETY AND SUSTAINABLE DEVELOPMENT
10.1 Supplier acknowledges that it has read, reviewed and informed its personnel of FTC’s Health and Safety Policy and agrees to comply with all applicable laws and statutory health and safety requirements at the Work Site. Supplier agrees to provide, at its expense, all necessary health and safety training for its personnel associated with the Work.
10.2 Where provided for in P/O , the Supplier agrees to provide investigative checks and security profiles at its own expense for all employees who have access to the Work Site. FTC will provide Client’s specific requirements for security investigations when required.
10.3 The Supplier shall only use and promote environmentally friendly products if available. The Supplier will remove all waste materials from the Work Site and dispose of them in an environmentally friendly manner, including reuse and recycling. The Supplier will comply with all LEED requirements if the building where the Work is performed is LEED certified.
10.4 Supplier shall immediately notify FTC of any actual or potential environmental, health or safety issues, including issues that must be reported to regulatory agencies having jurisdiction at the Facility Site. Supplier also agrees to inform FTC on reasonable notice of any potential labor dispute, material supply disruption, insolvency or other matters that may delay, impair or interfere with the P/O.
10.5 The Supplier acknowledges and declares that: (i) it is responsible for directing the monitoring and execution of the Work; (ii) it is the person who undertakes the Work in accordance with P/O.
10.6 Supplier shall ensure that all hazardous materials are carefully handled and stored in accordance with all Client’s requirements and in accordance with statutory requirements and the Work Site. The Supplier must be able to demonstrate that its employees have received appropriate WHMIS training and are informed in the event of a spill. If the Supplier discovers any toxic or hazardous materials or substances, the Supplier must: (i) take all reasonable steps to ensure that no one suffers exposures that may cause injury, illness or death and that the Client’s property or assets are damaged or destroyed as a result of the exposure or presence of the toxic or hazardous substances or materials; (ii) suspend work at the location where the Supplier discovers the presence of the toxic or hazardous substance or material; and (iii) immediately report its findings and confirm them in writing to FTC. Supplier will not be permitted to continue the Work until FTC lifts the suspension of the Work.
10.7 Drug and Alcohol Policy: Supplier and any of its subcontractors or agents providing Products or services hereunder shall have a written drug and alcohol policy that meets the same (or higher) requirements as those of FTC. The representative of Supplier or each of its subcontractors must be able to provide a copy of such policy to FTC upon request and describe the procedures used for the effective administration of the policy. The policy must prohibit the distribution, use, possession, sale, solicitation or influence of illegal drugs or alcohol in all FTC projects and provide for appropriate testing for such substances. All FTC project sites must remain an area free of illegal drugs and alcohol.
11.0 APPLICABLE LAWS AND ELECTION OF DOMICILE
11.1 The P/O shall be interpreted in accordance with the applicable laws of the province where the Work Site is located. All disputes and controversies between the parties shall be subject to the non-exclusive jurisdiction of the courts where the Work Site is located.
12.0 FORCE MAJEURE
12.1 For the purposes of P/O the word “Force Majeure” means an event that occurs due to causes beyond the control of the Party invoking Force Majeure, that is unforeseeable, unavoidable and irresistible and that occurs without fault or negligence or impunity of the Party invoking Force Majeure.
12.2 Any fault of a subcontractor of the Supplier shall not be considered Force Majeure unless the criteria set out in Article 12.1 are met;
13.1 All documents, contacts and/or written notices to be sent or notified to FTC shall be sent or notified to the address described below:
F. Trottier Construction Ltd.
420 McArthur Avenue Ottawa,
Ontario K1K 1G6
Attn: Vice-President, Operations
14.1 Supplier warrants that the Works: (i) will be furnished in accordance with the requirements of P/O; (ii) will be free from defects, defects in materials or workmanship; (iii) will be of the highest quality; (iv) will conform to current industry standards and practices; (v) will be free and clear of all liens and/or claims; (vi) will be fit for the purpose for which the Work is intended; and (vii) will conform to the specifications, drawings, samples, or other descriptions provided or accepted by FTC and to applicable laws.
14.2 Unless otherwise specified in the P/O, Supplier’s warranty shall be valid for one year after the date of Substantial Performance of the Work, without excluding all statutory provisions and manufacturers’ warranties available under the Work so that FTC or Client may benefit therefrom. Supplier agrees to promptly repair, replace or re-perform, at its own expense (including all associated costs such as transportation, replacement, removal and re-installation costs) any Work or any part or components thereof that are found to be defective and under warranty as provided in the P/O with promptness, care and diligence following notification of such nonconformity by FTC. If Supplier fails to promptly correct or replace the nonconforming work, FTC may, upon reasonable notice to Supplier, proceed to correct the nonconforming work at Supplier’s expense. All warranties shall survive inspection, acceptance, use of the Work, completion, termination or cancellation of the P/O.
15.1 The Parties agree to protect and maintain all data and information exchanged between them as confidential information.
16.0 SUCCESSORS AND ASSIGNS
16.1 The P/O and the Conditions shall be binding upon the successors and assigns of the Parties.
17.1 The parties agree that where required by the Construction Lien Act (hereinafter the “Act”), any claim in respect of :
- evaluation of services or materials provided under the contract;
- payment under the contract, including in respect of a change order, whether approved or not, or a proposed change order;
- Disputes that are the subject of a notice of non-payment;
- amounts retained under section 12 or under subsection 17(3) of the Act;
- Payment of a deduction under section 26.1 or 26.2 of the Act;
- non-payment of the holdback under section 27.1 of the Act; or
- such other matters as may be prescribed by law.
shall be submitted to arbitration, to the exclusion of the ordinary courts, in accordance with the procedure prescribed by law.