Colleges
Agreement Template For Goods and Installation
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FOR INTERNAL ONTARIO EDUCATION SECTOR USE ONLY
DISTRIBUTION TO UNAUTHORIZED PERSONS STRICTLY PROHIBITED
[Insert Agreement Name and Number] Page 4
APPENDIX A – FORM OF AGREEMENT
[Insert AGREEMENT NAME AND NUMBER]
[Goods and Installation]
AGREEMENT
For
[Insert AGREEMENT NAME]
Between
[Insert Name of Purchaser]
- And -
[Insert Name of Supplier]
As of
[#] day of [MONTH], [YEAR]
Drafting Notes: All input fields have been formatted in bold and highlighted. After inserting the relevant information, change the formatting to align with the surrounding text.
Remove all instructions and ensure reference to other sections are accurate before issuing.
[Insert Agreement Name and Number] Page 4
TABLE OF CONTENTS
Article 1 Interpretation 5
1.1 Definitions 5
1.2 Schedules 7
1.3 Order of Precedence 7
1.4 Rules of Interpretation 7
Article 2 Purchase and Installation of Goods 8
2.1 Purchase 8
2.2 Supplier Project Manager 8
2.3 Preparation of the Delivery Site 8
2.4 Inspection 9
2.5 Shipment 9
2.6 Delivery 9
2.7 Rejection 10
2.8 Quality Control 10
2.9 Installation 10
2.10 Acceptance Test 11
2.11 Manuals, Bulletins, and Documentation 12
2.12 Changes to Schedules 13
2.13 Enhancements 13
2.14 No Liens 14
Article 3 Services 14
3.1 General 14
3.2 Training 14
3.3 Service Support/Replacement Parts 15
3.4 Site Planning and Turnkey Requirements 16
3.5 Maintenance 16
3.6 Response Time to Malfunctions 16
3.7 Service Records 17
3.8 Updates and Upgrades 17
3.9 Support 17
3.10 Supplier’s Equipment 18
3.11 Application of Purchaser’s Policies and Procedures and Criminal Background Checks 18
3.12 Workers’ Compensation 19
3.13 Workplace Safety 19
3.14 Reports 19
3.15 Electronic Commerce 19
Article 4 Prices and Payment 21
4.1 Purchase Price 21
4.2 Invoicing 21
4.3 Discount 21
4.4 Taxes 21
4.5 Delivery Costs 21
Article 5 Representations, Warranties, Indemnities 22
5.1 Supplier’s Representations and Warranties 22
5.2 Limited Goods Warranty 23
5.3 Nature of Warranties 23
5.4 Conflict of Interest 24
5.5 Indemnity 24
5.6 Limitation of Liability 24
5.7 Injunction Against Continued Use of Goods 24
Article 6 Term and Termination 25
6.1 Term 25
6.2 Extension 25
6.3 Termination by Either Party 25
6.4 Termination by Purchaser 25
6.5 No Limitation of Remedies 26
6.6 Survival 26
Article 7 General 26
7.1 Liability Insurance 26
7.2 WHMIS 27
7.3 Alerts and Safety Notifications 27
7.4 Government or Regulatory Actions 28
7.5 Customs 28
7.6 Compliance with Laws 28
7.7 Remedies Cumulative 29
7.8 Force Majeure 29
7.9 Alternative Dispute Resolution 29
7.10 Notices 30
7.11 Publicity 31
7.12 Confidentiality 31
7.13 Property of the Purchaser 33
7.14 Entire Agreement 33
7.15 Time of Essence 33
7.16 Assignment and Enurement 33
7.17 Amendment and Waivers 33
7.18 Independent Parties 33
7.19 Currency 33
7.20 Legislation 33
7.21 Governing Laws 34
Schedule A – Goods and Installation and Prices 35
Schedule B - Supplier’s Proposal 36
Schedule C - Specifications 37
Schedule D - Implementation 38
Schedule E - Site Planning and Turnkey Requirements 39
Goods Purchase and Installation Agreement
THIS AGREEMENT (“Agreement”) is made as of [Insert date], between [Insert legal name of Purchaser], with an office at [Insert address] (the “Purchaser”) and [Insert legal name of supplier] with an office at [Insert address] (the “Supplier”).
WHEREAS the Purchaser issued a request for proposals (“RFP”) dated [Insert date] for the purchase and installation of the Goods, and the Supplier submitted a proposal dated [Insert date] offering to sell the Goods to and install the Goods for the Purchaser;
AND WHEREAS upon the completion of the evaluation process pursuant to the RFP, the Supplier was identified by the Purchaser as the preferred proponent pursuant to the RFP;
AND WHEREAS the Supplier and the Purchaser were able to agree on the terms and conditions of this Agreement;
NOW THEREFORE, for good and valuable consideration, the parties hereto agree as follows:
Article 1 Interpretation
1.1 Definitions
In this Agreement, unless the context otherwise requires, the following terms have the meanings indicated below:
(a) “Acceptance” means that the Equipment meets or exceeds the Specifications;
(b) “Acceptance Certificate” means a certificate signed by designated representatives of the Purchaser and the Supplier confirming that the Equipment has achieved Acceptance;
(c) “Acceptance Test(s)” and “Acceptance Testing” means the process whereby the Equipment is tested to verify that it meets or exceeds the Specifications;
(d) “Acceptance Testing Period” means a period of 30 Days from notification that the Purchaser has to perform Acceptance Testing;
(e) “Business Day” or “Business Days” means Monday to Friday between the hours of 9:00 a.m. to 5:00 p.m., except when such a day is a public holiday, as defined in the Employment Standards Act (Ontario) or as otherwise agreed to by the parties in writing;
(f) “Canada Customs Invoice” means the Canada Border Services Agency form of customs invoice;
(g) “Days” means calendar days;
(h) “Delivery Site(s)” means [Insert location(s)];
(i) “Disapproval Notice” means a written notice of the Purchaser’s disapproval of the Equipment sent by the Purchaser;
(j) “Effective Date” means the date that this Agreement is made, as first shown above;
(k) “Enhancements” means any improvement, innovation, or advance that affects the operation, safety, or efficiency of the Equipment and that is generally available to the Supplier’s customers;
(l) “Event of Force Majeure” means any cause beyond the reasonable control of a party to this Agreement, including any act of God, outbreak, or epidemic of any kind, communicable and virulent disease, strike, flood, fire, embargo, boycott, act of terrorism, insurrection, war, explosion, civil disturbance, shortage of gas, fuel or electricity, interruption of transportation, governmental order, unavoidable accident, or shortage of labour or raw materials;
(m) “FIPPA” means the Freedom of Information and Protection of Privacy Act (Ontario);
(n) “Goods ” means the goods described in Schedule A – Goods and Installation and Prices, and includes all supplies and operational and service documents to be delivered by the Supplier to the Purchaser described in the Supplier’s Proposal, including all parts provided during the Warranty Period, and further includes all work to be performed by Supplier necessary to deliver and install the Goods and Installation;
(o) “Governmental Authorities” means governments, regulatory authorities, governmental departments, agencies, agents, commissions, bureaus, officials, ministers, Crown corporations, courts, bodies, boards, tribunals, or dispute settlement panels or other law, rule, or regulation-making organizations or entities having or purporting to have jurisdiction on behalf of any nation, province, territory, state, or other geographic or political subdivision thereof; or exercising, or entitled or purporting to exercise any administrative, executive, judicial, legislative, policy, regulatory, or taxing authority or power, and includes the Ministry of Education and the Ministry of Training, Colleges and Universities;
(p) “Indemnitees” means the Purchaser and its officers, directors, agents, employees, or governors;
(q) “NAFTA” means the North American Free Trade Agreement;
(r) “NAFTA Certificate of Origin” means a certification information form that is based on the origin requirements in NAFTA;
(s) “OEM” means original equipment manufacturer;
(t) “Personal Information” means recorded information about an identifiable individual or that may identify an individual;
(u) “Purchase Price” means the price for the Goods as set out in Schedule A – Goods and Installation and Prices;
(v) “Record”, for the purposes of the Agreement, means any recorded information in the custody or control of the Purchaser, including any Personal Information, in any form: (a) provided by the Purchaser to the Supplier, or provided by the Supplier to the Purchaser, for the purposes of the Agreement; or (b) created by the Supplier in the performance of the Agreement; and shall exclude any information specifically described in [Insert];
(w) “Specifications” means the drawings and specifications for the Goods set forth in Schedule C - Specifications and includes the additional requirements agreed to by the Purchaser and the Supplier;
(x) “Supplier’s Personnel” means the Supplier’s employees, agents, representatives, and subcontractors;
(y) “Supplier Project Manager” means the manager designated in accordance with Section 2.2 (Supplier Project Manager);
(z) “Term” means the effective period of the Agreement, from the Effective Date to the expiration, as set in Section 6.1 (Term);
(aa) “Update” means any correction or change to the Equipment made during the life of the Equipment, and includes any modification, correction, or adjustment, associated with patient or operator safety, or in response to all Alert and Safety Notifications pursuant to Section 7.3 (Alerts and Safety Notifications);
(bb) “Upgrade” means a new version of or addition to the Equipment and constitutes an improvement or modification that enhances the performance of the Equipment or provides a new feature or functionality; and
(cc) “Warranty Period” has the meaning ascribed in Section 5.2 (Limited Goods Warranty).
1.2 Schedules
The following Schedules are attached to and form an integral part of this Agreement:
(a) Schedule A – Goods and Installation and Prices
(b) Schedule B – Supplier’s Proposal
(c) Schedule C - Specifications
(d) Schedule D - Implementation
(e) Schedule E – Site Planning and Turnkey Requirements
[This list may require alteration or may be augmented to reflect the RFP process.]
1.3 Order of Precedence
In the event of any conflict or inconsistency in the Agreement, the following is the order of precedence of documents comprising this Agreement:
(a) Article 1(Interpretation) to Article 7(General) of this Agreement;
(b) the Schedules annexed to this Agreement, except for Schedule B – Supplier’s Proposal;
(c) the RFP, and,
(d) Schedule B – Supplier’s Proposal.
1.4 Rules of Interpretation
This Agreement shall be interpreted according to the following provisions, unless the context requires a different meaning:
(a) Unless the context otherwise requires, wherever used herein the plural includes the singular, the singular includes the plural, and each of the masculine and feminine includes the other gender.
(b) Words in the Agreement shall bear their natural meaning.
(c) References containing terms such as “includes” and “including”, whether or not used with the words “without limitation” or “but not limited to”, shall not be deemed limited by the specific enumeration of items but shall, in all cases, be deemed to be without limitation and construed and interpreted to mean “includes without limitation” and “including without limitation”.
(d) In construing the Agreement, general words introduced or followed by the word “other” or “including” or “in particular” shall not be given a restrictive meaning because they are followed or preceded (as the case may be) by particular examples intended to fall within the meaning of the general words.
Article 2 Purchase and Installation of Goods
2.1 Purchase
Subject to the terms of this Agreement, the Purchaser hereby orders and purchases from the Supplier, and the Supplier agrees to sell and provide to the Purchaser, the Goods and related services for the Purchase Price, exclusive of all harmonized sales tax. The Purchase Price is subject to any applicable withholding taxes, and shall be payable as set forth in Article 4 (Prices and Payment).
2.2 Supplier Project Manager
The Supplier shall promptly designate a Supplier Project Manager (subject to the prior approval of the Purchaser) who shall have the required skills and capabilities to adequately perform the role, and shall be fully authorized to make decisions and otherwise deal with the Purchaser in an effective and timely manner in respect of all matters under the Agreement. The Supplier Project Manager shall:
(a) be responsible for co-coordinating with the Purchaser the site preparation, delivery, and installation of the Goods and provision of the related services;
(b) oversee the various stages of the delivery and installation of the Goods to ensure their effective and timely delivery;
(c) ensure that the Supplier’s obligations are completed in an efficient and timely manner; and
(d) be readily available to the Purchaser by telephone and electronic communication during hours mutually agreed upon in writing regarding this Agreement, including, without limitation, responding to requests, queries, and complaints from the Purchaser.
2.3 Preparation of the Delivery Site
2.3.1 General
The Purchaser and the Supplier shall complete their respective site preparation obligations as described in Schedule D – Implementation and Schedule E – Site Planning and Turnkey Requirements. The Supplier shall complete its inspection of the Delivery Site(s) at least [Insert] Days before the date set for the installation. The Supplier shall promptly notify the Purchaser’s project manager or representative in writing of any deficiency at the Delivery Site(s).
2.3.2 Supplier’s Responsibilities
The parties shall clearly identify in writing all Purchaser responsibilities as set out below, or failing such identification, the Supplier shall be deemed to be responsible by default for any such responsibilities. In addition to the requirements set out in Schedule C - Specifications, Schedule D - Implementation, and Schedule E – Site Planning and Turnkey Requirements, the Supplier shall:
(a) work with the Purchaser during the planning, construction, and installation phases of the Agreement; and
(b) schedule an alternate time for such work in consultation with the Purchaser if noise level or vibrations are excessive or detrimental during working hours.
2.3.3 Purchaser’s Responsibilities
[Insert as applicable]
2.4 Inspection
Provided that the Purchaser complies with the confidentiality obligations set out in the Agreement, and provided that the Purchaser complies with the Supplier’s safety and site policies made known to the Purchaser, the Purchaser shall be entitled to inspect the Goods at its own cost, at a mutually agreed upon time. In addition, from time to time during the Supplier’s manufacturing, storage, and installation processes, as applicable, the Supplier shall co-operate with, and provide access to, the Purchaser for the purpose of inspecting the Goods during any Business Day on reasonable notice. The conduct or the failure to conduct any such inspection shall in no way affect or impair the Purchaser’s right to inspect or reject any Goods under Section 2.7 (Rejection) or to conduct Acceptance Tests under Section 2.10 (Acceptance Test), or to exercise any of its other rights or remedies provided in this Agreement, at law or in equity.