G.N. Johnston Equipment Co. Ltd.
(“Johnston Equipment”) 

and

Supplier

FURNISH COMPLETE SHIPPING INFORMATION INCLUDING ITEM NO., QUANTITY, UNIT OF MEASURE AND JOHNSTON EQUIPMENT’S ITEM MATERIAL, IDENTIFICATION NUMBER, AND INCLUDE PACKING LIST WITH EACH SHIPMENT.  SHOW PURCHASE ORDER NUMBER ON PACKAGE, PACKING LIST, BILL OF LADING, INVOICE OR EQUIVALENT ELECTRONIC TRANSACTION (“INVOICE”) AND ALL CORRESPONDENCE.  ALL ORDERS ARE SUBJECT TO THE FOLLOWING CONDITIONS:

1. Governing Terms and Conditions:  These terms and conditions and the Purchase Order (collectively the “Agreement”), constitute the exclusive and entire understanding between Johnston Equipment and Supplier for the supply of goods (“Goods”) and/or services (“Services”). Johnston Equipment gives notice that it objects to and rejects any terms or conditions contained in any document which has been or may in the future be supplied by Supplier which are in addition to, different from, inconsistent with or attempt to vary any of the terms and conditions in this Agreement. Johnston Equipment’s acceptance of the Supplier’s Goods/Services will not be construed as an acceptance of any terms or conditions contained in any such document provided by the Supplier.  

2. Customs Documentation: Supplier agrees to provide all information necessary for Johnston Equipment to comply with all applicable laws and reporting obligations. Supplier shall supply all necessary customs documentation and/or electronic transaction records to allow Johnston Equipment to meet its customs related obligations and to obtain any refund benefits, where applicable.  Supplier agrees to defend, indemnify and hold harmless Johnston Equipment from and against any and all claims, demands, costs, losses, damages, liabilities (including legal fees) that may arise as a result of Supplier’s failure to comply with these requirements.

3. Tax: Sales taxes are applicable unless otherwise indicated.

4. Title and Risk of Loss: Unless otherwise specified in the Purchase Order, Supplier will have the risk of loss for all Goods shipped until receipt of delivery and acceptance of such Goods by Johnston Equipment, at which time title to and risk of loss with respect to such Goods will pass to Johnston Equipment, free and clear of all liens, charges or encumbrances whatsoever.

5. Inspection & Rejection: All Goods/Services are subject to Johnston Equipment’s inspection and acceptance. If the Goods delivered fail to conform with the Supplier’s warranties or the specifications in the Purchase Order, then, without prejudice to other rights or remedies Johnston Equipment may have under the Agreement or any other legal grounds, Johnston Equipment may, at its option choose one or several of the following remedies: (i) refuse to take delivery; (ii) hold the defective Goods for disposal at Supplier’s risk and expense; (iii) require Supplier to repair or replace the Goods at the Supplier’s sole cost within any period reasonably specified by Johnston Equipment; and/or (iv) require Supplier to reimburse Johnston Equipment for all costs, expenses, damages and other losses associated incurred by Johnston Equipment due to the defective Goods. If the Services performed fail to conform with Supplier’s warranties or the specifications in the Purchase Order, then, without prejudice to other rights or remedies Johnston Equipment may have under the Agreement or any other legal grounds, Johnston Equipment may, at its option choose one or several of the following remedies: (i) require Supplier to re-perform the Services free of charge and as soon as is reasonably practicable; (ii) require Supplier to reduce pro-rata the compensation allocable to the defective Services; (iii) obtain the Services from a third party and require Supplier to reimburse for all reasonable costs and expenses thereby incurred; and/or (iv)  claim compensation from Supplier for all costs, expenses, damages and other losses incurred by Johnston Equipment due to the defective Services. No payment, inspection or acceptance of any part or all of the Goods/Services will relieve Supplier from full responsibility with the specifications in the Purchase Order.

6. Warranty: In addition to any other express or implied warranties, Supplier warrants that: (a) all Goods/Services supplied will be in accordance with all applicable specifications, drawings, descriptions and other requirements of the Purchase Order; (b) all Goods will be of good industry standard material and workmanship, will be fit and suited for the purpose or use contemplated by the Purchase Order, and will be of merchantable quality; (c) all Services (including inputs and workmanship) will be performed with a degree of high professional skill, sound practices and good judgment normally exercised by recognized professional firms providing services of a similar nature and be in accordance with the customary trade standards for such Services in Johnston Equipment’s industry; (d) unless a longer period is specified elsewhere in the Purchase Order, all Goods supplied will be free from defects in material, design and workmanship for a period of 18 months, from the date of Johnston Equipment’s receipt of such Goods; and (e) all Goods will be, and all Services performed, in full compliance with all Laws.

7. Set Off: Johnston Equipment may withhold, set-off or deduct from any amount otherwise payable to Supplier under the Purchase Order, such amount as may be reasonably necessary to reimburse, indemnify or protect Johnston Equipment from any amount owing by Supplier to Johnston Equipment pursuant to the Purchase Order, or for any loss or damage that may be due to the default by Supplier in any obligation under the Purchase Order or from claims by third parties against Johnston Equipment in respect of the Goods or Services.

8. Indemnification: To the fullest extent permitted by law, Supplier agrees to defend, indemnify (notwithstanding any possible disclaimers of liability to the contrary, which disclaimers Supplier agrees do not apply to this Agreement), except to the extent due to Johnston Equipment’s negligence or willful misconduct, and hold Johnston Equipment, its  officers, directors, affiliates, representatives, agents, employees, customers, successors and assigns (“JE Indemnified Parties”) harmless from any and all charges, claims, actions, damages, losses, expenses, costs, including, but not limited to legal fees, by any party or person arising out of personal injuries, illness or death, or injury to or destruction of property including loss of use resulting from, or in any way connected with: (a) Supplier’s performance or non-performance; (b) anyone directly or indirectly employed by or acting on behalf of Supplier; (c) anyone for whose acts Supplier may at law be liable; or (d) the Goods sold or Services performed.

9. Compliance with Laws: Supplier warrants and agrees that all Goods/Services will comply with all applicable federal, provincial and local laws, regulations, ordinances, rules, codes and permits (“Laws”) including, without limitation, all Laws affecting the price, production, use, classification, handling, transportation, storage, sale or delivery of any Goods and all applicable occupational health and safety, sanctions and export controls, anti-corruption and anti-bribery, forced labour and modern slavery, and environmental Laws.

9.1. Forced and Child Labour Prevention: Supplier warrants and agrees that all Goods/Services provided will be completely devoid of any forced or compulsory labour, slavery and modern slavery, human trafficking, servitude, debt bondage, labor exploitation, as well as free from verbal or physical humiliation, violence, coercion, mental abuse, sexual harassment, threats, or intimidation. This also includes ensuring that no abusive working conditions are present, even if they are purportedly used as disciplinary measures. Supplier’s employees shall enter employment relationship on a voluntary basis and shall have the right to terminate it the with a reasonable notice period. Supplier shall not withhold, confiscate, destroy, or deny access to employees' passports or any other personal identity documents, and shall not engage in any actions that would restrict the freedom of movement of their employees. Supplier shall not charge recruitment fees to employees. Supplier shall actively prevent any form of child labor in their operations or supply chains. Supply warrants and agrees that Supplier shall only employ workers who meet or exceed the legal minimum age as determined by the most stringent of either applicable Laws, or the standards set by Convention C138 of the International Labour Organization (ILO).

10. Intellectual Property: Supplier grants and assigns to Johnston Equipment all right, title and interest in and to all know-how, confidential information, intellectual property rights, including, without limitation, patents, trademarks, service marks, design rights (whether registered or unregistered), copyrights (including any future copyrights) and any application for any of the foregoing, developed by Supplier, or on behalf of Supplier, in connection with (i) a specifically agreed development, (ii) a Johnston Equipment-specific modification of a product or (iii) a part or the design of a tool, including any drawings or specifications developed by Supplier in connection with the foregoing, and such intellectual property transfer is covered by the payment of the price for the Goods and/or Services. Supplier shall take all actions reasonably necessary to secure the assignment of such rights to Johnston Equipment.Supplier represents and warrants that all Goods/Services do not infringe any valid patent, trademark, copyright or other intellectual property right and agrees to defend, indemnify and hold harmless the JE Indemnified Parties from and against any and all claims, demands, costs, losses, damages, profits and liabilities (including legal fees) that may arise as a result of any claim of infringement arising out of the production, use and sale of Goods or provision of Services sold hereunder. If the Goods are claimed to infringe any valid patent, trademark, copyright or other intellectual property right of a third party, Supplier  shall at its expense shall either (i) modify the Goods to render them non-infringing; or (ii) replace the Goods with non-infringing goods, at the sole option of Johnston Equipment.

Names and trademarks of Johnston Equipment shall remain the sole and exclusive property of Johnston Equipment and shall not be used by Supplier for any purpose whatsoever unless expressly authorized in writing by Johnston Equipment. Supplier shall use objects, documents and auxiliary resources of all types that Johnston Equipment provides to it to carry out the Services or manufacture the Goods, exclusively to perform the Services or manufacture the Goods and shall return such items to Johnston Equipment without delay after performance of the Services or manufacturing of the Goods or the termination or expiry of the Agreement.

11. Confidentiality and Data Security:

(a)Any specifications, designs, patterns, samples or other similar items or other technical, commercial, or financial information relating to Johnston Equipment’s or its affiliates’ business, including Customer Data (as defined herein) (the “Information”) which Supplier may obtain in connection with the Purchase Order will be deemed to be confidential. Supplier will not use the Information for its own purposes (other than for fulfilling its obligations under the Purchase Order), nor will Supplier disclose the Information to any third party except as specifically authorized by Johnston Equipment in writing. “Customer Data” means any information, documents, files materials, records and/or data (including any metadata) that Johnston Equipment, its affiliates or its customers provide to Supplier (or is obtained, developed, acquired or processed by Supplier) under the Agreement (including Personal Information, as defined herein), relating to any customer or employee of Johnston Equipment, and such customer’s or employee’s device. Johnston Equipment will have the right to make copies of or otherwise use (including duplicating any components required for the maintenance or repair of any Goods) any drawing or other information provided by Supplier in regards to the Goods/Services. 

(b) With respect to any personal information about any identified or identifiable individual that is processed under the Agreement by Supplier on behalf of Johnston Equipment, including any Customer Data (“Personal Information”), Supplier shall, and shall procure that its employees and third-party service providers involved in the provision of the Services shall, comply with all applicable privacy and data protection laws and only collect, use and disclose such Personal Information for the sole purpose of conducting the business transaction(s) that is the subject of the Agreement. Without limiting the above, Supplier shall protect the confidentiality, security and integrity of the Information and Personal Information using and maintaining administrative, technical, logical, and physical safeguards and measures consistent with the highest industry standards and all Laws and in compliance with any instructions or requirements provided by Johnston Equipment, to protect against threats or hazards (and anticipated threats or hazards) to, or the unauthorized access, disclosure, or use of the Information and Personal Information, and in no event shall such measures be less restrictive than those Supplier employs to safeguard its most confidential information. Furthermore, Supplier shall implement, maintain and update adequate, sufficient, and current security measures, procedures, policies, controls and practices to secure and protect the Information, Personal Information, Johnston Equipment policies, procedures and other property, and all intellectual property rights in any of the foregoing  (collectively, “Security Measures”), as necessary to prevent unauthorized access to or use of such information or property. Supplier shall ensure that the Security Measures are appropriately designed and tested to ensure the protection required herein. Supplier shall promptly notify Johnston Equipment of any loss, theft, or unauthorized access to or disclosure of any Personal Information (“PI Breach”), and Supplier shall fully cooperate with Johnston Equipment to remedy any PI Breach and meet any requirements prescribed by law in respect of such PI Breach.

(c) Upon expiration or termination of the Agreement by either party and for any reason, Supplier shall promptly deliver to Johnston Equipment all documents and records containing Personal Information, without retaining a copy, summary or excerpt in any form (electronic or otherwise), except as may be strictly required to meet any statutory retention requirements.

(d) Johnston Equipment may audit Supplier to assess compliance with the obligations under this Section 11, upon providing reasonable notice in writing to Supplier. Supplier shall provide timely, complete and truthful responses, documentation and procedures to, and abide by such information and responses it provided with Johnston Equipment’s IT Security & Privacy Questionnaire (as applicable), which is hereby incorporated into the Agreement by reference. “IT Security & Privacy Questionnaire” means the Johnston Equipment provided electronic questionnaires and Supplier’s responses (initial and follow-up) and documentation detailing Supplier’s security, processing functionality and procedures. Johnston Equipment does not consent to Supplier’s use of any Personal Information provided for any direct marketing or to the transfer of such information to any third party.

(e) Supplier and its approved subcontractors shall use commercially reasonable efforts, including by ensuring that the systems used to provide the Services and/or Goods include current anti-viral software, to prevent from being introduced into Johnston Equipment’s systems by Supplier and third parties, any viruses, Trojan horses, worms, spyware, back doors, email bombs, malicious code or similar items (collectively, “Malware”), provided that, in the event that Malware is found to have been introduced into Johnston Equipment’s systems by Supplier, its personnel or one of its approved subcontractors, Supplier shall use commercially reasonable efforts to mitigate the effects of the Malware and, if the Malware causes a loss of operational efficiency or loss of data, mitigate and restore such losses. Furthermore, Supplier shall indemnify, defend and hold harmless the JE Indemnified Parties from and against any and all direct or third party claims, damages, losses, liabilities, costs or expenses, including reasonable legal fees to the extent arising as a result of any cyber-attack, virus, time lock, back door, disabling device or other code, routine or instruction which destroys, corrupts or disables software, data or systems or allows unauthorized access or monitoring to occur due to use or access of Services or Goods under the Agreement, except to the extent introduced by Johnston Equipment’s systems.

12. Changes: Supplier shall give sufficient reasonable prior written notice to Johnston Equipment of any change(s) in new materials, manufacturing processes, manufacturing location, or test methods and both parties will review the impact to Johnston Equipment’s processes or performance. If such change(s) increases or decreases the costs or time to perform, the parties must mutually agree to any changes and shall only be binding if in writing and agreed to and signed by an authorized representative of Johnston Equipment.

13. Subcontractors: Supplier will not engage a subcontractor for Services or the manufacture or fabrication of Goods without the prior written consent of Johnston Equipment.

14. Delay: Time is of the essence. Supplier will deliver Goods/Services in accordance with the times specified in the Purchase Order. Supplier will not be liable for delays in delivery of the Goods/Services due to causes not within the reasonable control of Supplier; provided that, Supplier immediately notifies Johnston Equipment in writing of any such delay. If such delay is or is expected to be more than 15 days, Johnston Equipment may, at its option, cancel all or any portion of the Goods/Services by giving written notice to Supplier, without further liability on the part of Johnston Equipment.

15. Cancellation for Cause: Johnston Equipment may, upon written notice, cancel the supply of any Goods/Services or any part due to Supplier’s failure to comply with this Agreement which shall include and not be limited to late delivery of Goods/Services, delivery of Goods/Services which are not to the specifications in the Purchase Order or failure to provide Johnston Equipment, upon request, with reasonable assurances of future performance.  Supplier shall safely hold all goods, articles or uncompleted portions of goods or articles and other property of Johnston Equipment until instructed to ship or otherwise dispose of such goods or articles.  Johnston Equipment may take possession of all the above-mentioned goods or articles on Supplier’s site. Supplier hereby gives Johnston Equipment permission to enter its premises for this purpose. To the extent Johnston Equipment has provided a deposit or other form of collateral for securing payments to Supplier due and payable pursuant to the terms of the Agreement, Supplier shall promptly refund the full amount of any such deposit to Johnston Equipment upon cancellation of the Agreement in accordance with this Section 15, Section 14 or Section 16.

16. Cancellation without Cause: Johnston Equipment, in its sole option, may cancel all or any part of the Goods/Services upon written notice. If the Purchase Order is for (i) standard stock merchandise, or services, Johnston Equipment will have no obligation to pay cancellation charges or other compensation except to make payment for Services performed or Goods shipped prior to cancellation that have not yet been paid for; or (ii) if the Purchase Order is for goods fabricated or constructed to the specifications of Johnston Equipment, Supplier shall accept as full compensation reasonable direct out-of-pocket costs up to the date work is stopped or as approved by Johnston Equipment, provided, however the total amount to be paid to Supplier upon cancellation, plus payments made previously by Johnston Equipment to Supplier, will not exceed the total aggregate purchase price specified in the Purchase Order. Supplier shall not penalize Johnston Equipment, financially or otherwise, for cancellation of the Purchase Order. Supplier shall safely hold all goods, articles or uncompleted portions of goods or articles and other property of Johnston Equipment until instructed to ship or otherwise dispose of.  Johnston Equipment may take possession of all the above-mentioned goods or articles on Supplier’s site and Supplier gives Johnston Equipment permission to enter its premises for this purpose.

17. Attendance at Johnston Equipment’s Facility: The following additional provisions apply:

(a) Supplier and its officers, employees, agents and approved subcontractors will comply with all site rules and safety and security regulations established by Johnston Equipment or Johnston Equipment’s customers, as applicable.

(b) Supplier will have complete control and responsibility for the safety and health of its officers, employees, agents and approved subcontractors that attend a facility of Johnston Equipment or Johnston Equipment’s customers and will take all necessary precautions to prevent the occurrence of any injury to person or damage to property while at the facility.

(c) Supplier will obtain all necessary permits and/or licenses and give all necessary notifications for the attendance at the facility and performance of the Services.

(d) Supplier will notify Johnston Equipment in advance of any hazardous materials that may be brought into the facility of Johnston Equipment or Johnston Equipment’s customers and provide Johnston Equipment and/or Johnston Equipment’s customers with the appropriate Material Safety Data Sheets for such materials.

(e) Where applicable, payment of Supplier’s invoices will be subject to compliance with the holdback provisions of any applicable lien legislation until receipt of appropriate clearance certificates regarding the payment of Workers’ Compensation assessments and provincial sales tax is provided.

 (f) Supplier will maintain general liability insurance and automobile liability insurance in an amount not less than $2,000,000 per occurrence. Supplier shall also arrange and maintain, at its own cost, all insurance customary and on terms common in the industry and satisfactory to Johnston Equipment, and in particular professional, public and product liability insurance. The terms of such insurance must be satisfactory to Johnston Equipment and Supplier will provide Johnston Equipment with satisfactory proof of such insurance coverage upon request.

18. General:

(a)  This Agreement is not assignable by Supplier in whole or in part, except with the prior written consent of Johnston Equipment and if consent is provided shall enure to the benefit of and be binding on the parties and their respective successors and permitted assigns.

(b) Except as otherwise expressly provided in this Agreement, any rights and remedies specified are cumulative and are in addition to any other rights or remedies available to Johnston Equipment at law.

(c) Should any provision of herein found to be invalid or unenforceable by law, it shall cease to operate and be considered severed and all remaining provisions shall continue to be valid and binding upon the parties.

(d) This Agreement shall be construed in accordance with the laws of the Province of Ontario, and the parties agree that the Courts of the Province of Ontario shall have exclusive jurisdiction over same. The parties agree that the Sale of Goods Act (Ontario) and the United Nations Convention on Contracts for the International Sale of Goods, or any amendments thereto, shall not apply and are expressly excluded by the parties.

(e) The waiver by Johnston Equipment of any term, condition or provision herein shall not be construed to be a waiver of any other term, condition or provision thereof nor shall any such waiver be deemed a waiver of a subsequent breach of the same term, condition or provision, nor shall it be deemed a waiver of any provision of any subsequent order.

(f) This Agreement contains the entire understanding between the parties concerning and supersedes all prior written, or oral agreements and shall only be modified in writing and signed by authorized representatives of both parties.

(g) The parties confirm that it is their express wish that this Agreement, as well as any other documents relating to this Agreement, including notices, schedules and authorizations, have been and shall be drawn up in the English language only. Les parties aux présentes confirment leur volonté expresse que cette Convention, de même que tous les documents s’y rattachant, y compris tous avis, annexes et autorisations, soient rédigés en langue anglaise seulement.

19. Supplier Supply-Chain Due Diligence:

Supplier shall establish due diligence process to ensure compliance with the terms and conditions outlined herein. Such processes should include, but is not limited to, implementing policies and procedures for ethical business conduct and for sustainable procurement, and conducting audits of their supply chains. Supplier will thoroughly map their supply chains to identify, analyze, and prioritize significant sustainability and trade compliance (including but not limited to sanctions, anti-corruption, and forced labour) risks and to implement effective measures to manage these risks appropriately.

20. Sustainability:

Supplier shall be transparent about their greenhouse gas (GHG) emissions, including emissions from both their operations and their upstream activities. Supplier shall enhance their energy efficiency and increase the use of renewable energy sources, establishing robust GHG reduction targets that support the gradual decarbonization of their operations and supply chains. When requested, supplier must provide Johnston Equipment with products and services produced using renewable energy and furnish evidence confirming the renewable energy's origin. Upon request, Supplier will disclose information regarding the GHG emissions of their products and/or services (encompassing scope 1, 2, and 3 emissions), spanning from the production stage to delivery at Johnston Equipment 's facilities, and ensuring these calculations align with internationally recognized standards such as the GHG Protocol, ISO 14064, ISO 14067, etc.

Supplier shall monitor, record, document and upon request provide Johnston Equipment with environmental quantitative data and performances, Life Cycle Inventories/Assessment reports or Environmental Footprints.