TERMS OF USE AND CONSENT AGREEMENT

 

1. Interpretation

In these terms and conditions, except where the contrary intention is expressed, the following definitions are used:

Business Day: a day that is not a Saturday, Sunday, public holiday in the place where the act is to be performed or where the Notice is received.

Customer: the person on whose behalf the Online Registration for the Ontario Clean Water Agency (OCWA) products is made (or if there is no Online Registration, the person placing the order for OCWA products, or on whose behalf the order for OCWA products is placed, with OCWA) or the person outlined by signature below.

Contract: the agreement, comprising the documents specified in clause 3.1, concluded between OCWA and the Customer for participation in Proficiency Testing Schemes and supply of products, Contractor, as amended from time to time in accordance with clause 3.2.

Confidential Information: means all confidential, non-public or proprietary information, regardless of how the information is stored or delivered, exchanged between the parties before, on or after the date of this Contract that:

(a) is identified by notice in writing to the other party after the date of this Contract as confidential information for the purpose of this Contract;

(b) a party knows or ought to know is confidential; or

(c) is ‘Personal Information’ as defined under the Privacy Act (R.S.C., 1985, c. P-21) s. 3 (‘Personal Information’),

But does not include data obtained from Proficiency Testing Schemes that is used in accordance with clause 20.2. 

Dispatch Date: the Business Day that OCWA dispatches Proficiency Test Items as part of the Proficiency Test to the Customer as detailed on the order form.

Fees: the amount specified in the Order Form or online checkout portal.

Final Report: a detailed report which includes laboratory codes, test results and a discussion of test results.

Interim Report: a report issued with the primary purpose of providing each Customer with an early indication of performance.

Intellectual Property Rights: all intellectual property rights, including:

(a) copyright, patents, trademarks, designs, trade secrets, know how, and any right to have confidential information kept confidential;

(b) any application or right to apply for registration of any of the rights referred to in paragraph (a); and

(c) all rights of a similar nature to any of the rights in paragraphs (a) and (b) which may subsist in Canada or elsewhere, whether or not such rights are registered or capable of being registered.

Material: includes property, information, documentation or other material in whatever form, including any reports, specifications, business rules or requirements, user manuals, user guides, operations manuals, training materials and instructions, and the subject matter of any category of Intellectual Property Rights.

OCWA: the Ontario Clean Water Agency, a Crown Corporation operating under the laws of the Province of Ontario, Canada.

OCWA Guidelines: OCWA quality management system as edited from time to time in accordance and compliance with the ISO/IEC 17043 “Conformity assessment — General requirements for proficiency testing”

Order Form: Any form or invoice given to the Customer outlining the costs and terms of the Proficiency Test program.

Online Registration: The digital account and registration form filled out by the Customer in requisitioning Material.

Participant Terms of Reference: A document that provides technical details including but not limited to the statistical/experimental design, logistics of the proficiency test, along with expected participant conduct.

Pre-Existing Material: Material owned by the Customer before entering into this Contract.

Proficiency Tests (PT): the distribution of one or more proficiency test items, and the evaluation and reporting of results to the participants.

Proficiency Test Item (PT Item): a sample, product, artefact, reference material, piece of equipment, measurement standard, data set or other information used for proficiency testing.

Proficiency Testing Scheme: a system for objectively checking laboratory results by means of an external agency including comparison of a laboratory’s results at intervals with other laboratories establishing trueness and accuracy.

Reference Material: reference material and certified reference material, supplied by OCWA.

Round Specific Requirements: A document provided to the Customer in regard to a specific round of testing which describes deviations from the standard Participant Terms of Reference.

Test Report: the individual performance summary report prepared by OCWA that describes the outcome of a Proficiency Test for that particular Customer.

Third Party Material: Material owned by a third party that is included, used, embodied in or attached to analysis results submitted to OCWA.

2. Interpretation

In these terms and conditions, except where the contrary intention is expressed:

(a) the singular includes the plural and vice versa, and a gender includes other genders;

(b) another grammatical form of a defined word or expression has a corresponding meaning;

(c) a reference to a clause, paragraph or schedule is to a clause or paragraph of, or schedule to, this Agreement;

(d) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;

(e) a reference to time is to Toronto, Ontario, Canada time (Eastern Standard Time);

(f) a reference to a party is to a party to this Agreement, and a reference to a party to a document includes the party's executors, administrators, successors and permitted assignees and substitutes;

(g) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;

(h) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;

(i) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Agreement or any part of it;

(j) if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day; and

(k) headings are for ease of reference only and do not affect interpretation.

3. Priority of contract documents

3.1 If there is inconsistency between any of the documents forming part of this Contract, those documents will be interpreted in the following order of priority to the extent of any inconsistency:

(a) Order Form;

(b) Round Specific Requirements

(c) OCWA Participant Terms of Reference;

(d) any attachments to the Order Form; and

(e) documents incorporated by reference in this Contract.

3.2 No variation can be made to these terms and conditions without written consent of OCWA.

4. Services

4.1 OCWA will provide the Proficiency Tests to the Customer in consideration for the Customer paying the Fee to OCWA, subject to the provisions of this agreement.

4.2 OCWA shall use reasonable endeavours to dispatch the Proficiency Test Items to the Customer on the date specified in the order for test material dispatch.

5. Order and payment of the fees

5.1 Terms of payment are due upon registration if the Customer signs up by way of Online Registration. In all other circumstances, payments shall be due strictly 30 days from date of invoice.

5.2 Each person whose signature appears on the Online Registration, warrants and guarantees that he has been duly authorised and has full authority to enter the Contract on behalf of the Customer.

5.3 The return of the Online Registration and payment of the Fees for a Proficiency Test constitutes an acceptance of the Contract.

5.4 Where additional test reports and/or additional Proficiency Test Items are requested by the Customer, the Customer shall bear the cost of supplying those test reports and/or additional Proficiency Test Items and OCWA shall use its best endeavours to dispatch such within 7 days from receipt of the order.

5.5 Where Proficiency Test Items are considered temperature or time sensitive by OCWA they shall be dispatched by courier (the cost to be borne by the Customer in accordance with clause 6 below).

6. Invoicing for additional fees

6.1 The Customer may incur fees in addition to the base Fees for a Proficiency Test including where:

(a) The Customer requests additional Proficiency Test Items (e.g., additional sample bottles);

(b) The Customer incurs fees for the temperature sensitive or time sensitive delivery of Proficiency Test Items;

(c) The Customer requests replacement Proficiency Test Items where the original item requires replacing after the item has been received by the Customer.

6.2 OCWA will provide the Customer with a tax invoice in accordance with the laws of the Province of Ontario and the tax codes applicable thereto.

6.3 All invoices issued to the Customer will be stated and paid in Canadian dollars.

6.4 Payment of additional fees are due upon registration if the Customer chooses those additional fees by way of Online Registration. In all other circumstances payments are strictly due within 30 days of the date of OCWA’s invoice.

6.5 When making a payment, the Company must quote relevant reference numbers and the invoice number.

7. Failure to pay

7.1 If the Customer does not make payment of OCWA’s invoice by the due date, OCWA reserves the right to do any or all of the following:

(a) Interest will be charged to the Client starting from the day after the payment was due in the account.  Interest shall be paid at a rate determined by the Minister of Finance, from time to time, as payable on overdue accounts, in accordance with the Lieutenant Governor in Council under s.10(4) of the Financial Administration Act, R.S.O. 1990, c.F.12, plus any banking charges and an administrative fee.

(b) not perform any further Services (or any part of the Services); and

(c) withhold any future deliveries pending monies due.

8. Cancellation and withdrawal

8.1 The Customer can cancel an order and withdraw its data from a Proficiency Test by notifying OCWA in writing up until the date on which the Interim Report is issued to the Customer.

8.2 For avoidance of doubt, the customer may not withdraw its data from a Proficiency Test after OCWA issues its Interim Report.

8.3 The Customer must provide OCWA with written notice of the cancellation.

8.4 No refunds will be issued for cancelled orders after the final day of the Registration Period as defined in the Online Registration.

9. Delivery of proficiency test items

9.1 The Customer must provide OCWA with any quarantine permits that might be necessary to deliver the Proficiency Test Items.

9.2 The cost of test material delivery by courier (for items considered temperature or time sensitive by OCWA or otherwise requested by the Customer) will be borne by the Customer.

9.3 Proficiency test samples lost or damaged after receipt by the Customer will be replaced at a cost.

9.4 Subject to condition 9.7 and 9.8 below any Proficiency Test Items lost or damaged in transit or arriving at the premises of the Customer in an unsafe condition shall, if such unusable condition arises as a result of negligence of OCWA, the postal system or the courier, be promptly replaced free of charge, by OCWA. OCWA reserves the right to inspect such Proficiency Test Items. The Customer shall not dispose of any such Proficiency Test Items without written permission of OCWA, and if requested return such Proficiency Test Items to OCWA at its reasonable expense which OCWA will reimburse.

9.6 While OCWA will make every attempt to clearly label and attach any relevant documentation supplied by the Customer, OCWA is not in any way liable for damage to Proficiency Test Items which arises as a result of the Proficiency Test Items being for whatever reason. Similarly (and in accordance with condition 16.1), OCWA is not liable for any loss (whether direct or indirect including loss of profit) if a Customer cannot return results of their analysis by the deadline specified in the instructions.

9.7 The Customer shall inform OCWA if their test material has not arrived within 3 days of the advertised dispatch date if the material was sent by courier unless they have been informed by OCWA that the test material has been delayed. OCWA is not responsible for replacement or investigation of the loss of test material if the Customer has not informed OCWA within 3 days of the advertised dispatch date that the test material has not arrived or has arrived in a compromised state.

9.8 OCWA is not responsible for replacement of Proficiency Test Items if the Customer has not informed OCWA that they are in unusable condition within 3 days of receipt. The Customer shall be deemed to have accepted the Proficiency Test Items in useable condition after such time.

10. Reports

10.1 The Final Report is confidential and the sole property of OCWA.

10.2 By submitting an Order, the Customer irrevocably consents to OCWA publishing the Report, in any manner, format, or style at OCWA’s sole discretion, including on OCWA’s website.

10.3 OCWA will aim to produce a final report within eight weeks of the closing date for submission of results, but this time period is subject to change.

10.4 OCWA will publish the Final Report in electronic format as part of the Proficiency Testing Scheme. The Customer will bear the cost of any Final Report provided in hard copy format.

10.5 The Customer will have access to the Final Report for each Proficiency Test the Customer has ordered regardless of whether the Customer has returned results or not.

11. Risk

11.1 Property in the Proficiency Test Items shall pass to the Customer when received by the Customer.

11.2 Property in additional Proficiency Test Items or replacement Proficiency Test Items ordered under clause 9.4 shall not pass to the Customer until full payment of the price invoiced for the additional Proficiency Test Items has been received by OCWA.

11.3 Notwithstanding that the property in the Proficiency Test Items may not have passed to the Customer, the risk in the Proficiency Test Items shall pass to the Customer as soon as the Proficiency Test Items have been received by the Customer.

12. Harmonized Sales Tax

12.1 The Customer shall pay to OCWA, in addition to the price a sum equal to the Harmonized Sales Tax chargeable on the value of the supply of any goods and services provided to the Customer in accordance with the Contract and the laws of the Province of Ontario and Canada, where applicable.

13. Disclosure of information - privacy and confidentiality

13.1 OCWA will comply with its obligations under the Privacy Act (R.S.C., 1985, c. P-21) in relation to any personal information or sensitive information collected from the Customer in the course of the Proficiency Test.

13.2 The identity of Customers will be treated as Confidential Information and not disclosed. OCWA will protect the identity of Customers by assigning a random laboratory code to the Customer, including in the Final Report published under clause 10.2.

13.3 OCWA agrees not to disclose to any person, other than the Customer, any Confidential Information relating to the Proficiency Testing without prior written approval of the Customer.

13.4 OCWA’s obligation not to disclose Confidential Information of the other party will not be taken to have been breached to the extent the Confidential Information of the Customer:

(a) is disclosed by a party to its advisers or employees solely in order to comply with obligations, or to exercise rights, under this Contract;

(b) is disclosed to a party's internal management personnel, solely to enable effective management or auditing of activities related to this Contract;

(c) is disclosed by OCWA as a Crown Corporation to the responsible Minister;

(d) is disclosed by OCWA as a Crown Corporation, in response to a request by a House or a Committee of the Parliament of Canada;(e) is disclosed by OCWA as a result of any internal or external Audit;

(f) is required by Law to be disclosed; or

(g) is in the public domain otherwise than due to a breach of this Contract.

13.5 In accordance with ISO 17043:2023:

(a)      The terms “proprietary” and “confidential” do not preclude publication for academic and new insights of information purposes, provided that neither clients nor participants can be identified, including by inference.

(b)      When OCWA is required by law or authorized by contractual arrangements to release confidential information, the client concerned shall be notified of the information released, unless prohibited by law.

14. Waiver

14.1 The failure of either party at any time to enforce any provision of the Contract shall in no way affect its right thereafter to require complete performance by the other party, nor shall the waiver of any breach of any provision be taken or held to be a waiver of any subsequent breach of any such provision or be a waiver of the provision itself.

15. Severability

15.1 If any condition, clause or provision of the Contract not being of a fundamental nature be held to be unlawful or unenforceable by a court in any proceedings relating to the Contract the validity or enforceability of the remainder of the Contract shall not be affected thereby.

16. Limitation on liability

16.1 If OCWA performs the Services (or any part of the Services) negligently or in breach of this agreement, then, if requested by the Customer, OCWA will re-perform the relevant part of the Services, subject to paragraphs 16.2 and 16.4 below.

16.2 The Customer’s request referred to in paragraph 16.1 must be made within 6 months of date that OCWA dispatches the Proficiency Test Items.

16.3 Except in the case of death or personal injury caused by OCWA’s negligence, the liability of OCWA under or in connection with this agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise must not exceed the Fees paid by the Customer to OCWA under this agreement.

16.4 Neither Party is liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill.

16.5 If OCWA is not able to distribute a scheduled Proficiency Test due to any circumstance, the Customer may elect to receive:

(a) a credit equivalent to one Proficiency Test to be used within 18 months of the Customer being notified that the original Proficiency Test is unable to be distributed to the Customer.

17. No reliance

17.1 Each of the Parties acknowledges that, in entering into this agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this agreement. Any conditions, warranties or other terms implied by statute or common law are excluded from this agreement to the fullest extent permitted by law.

18. No warranties

18.1 Save as expressed in the Contract, OCWA grants no warranties in relation to PT Items, products or the supply of any analytical services or distribution of the Proficiency Test and all other conditions warranties, stipulations or other statements whatsoever whether express or implied, by statute, at common law or otherwise howsoever relating to the PT Items, products, analytical services or Proficiency Tests are hereby excluded. In particular, (but without limitation to the foregoing), no warranties granted regarding:

(a) Fitness for purpose, performance, use, quality or merchantability of the PT Items, whether express or implied, by statute at common law or otherwise howsoever.

(b) Provision of Proficiency Tests at a given completion date or any other date, whether stated in the Order Form or elsewhere.

19. Force majeure

19.1 Neither OCWA nor the Customer shall be considered in breach of the Contract for non performance, part performance, defective performance or delay in performance which is directly caused by or is a result of any circumstance beyond the reasonable control of the parties.

20. Ownership of intellectual property

20.1 OCWA shall retain all rights of ownership, title, copyright and intellectual property rights in the test reports OCWA produces in performing its functions under the Contract and in OCWA protocols. All analysis results submitted to OCWA and the statistical outputs created from the Proficiency Testing Schemes shall at all times remain the property of OCWA. OCWA has the right to exploit all Intellectual Property Rights set out in this clause for its commercial purposes.

20.2 OCWA may publish, present, or prepare analysis based on, containing, or referencing the consensus of data obtained from Proficiency Testing Schemes in the characterisation of a Reference Material or PT test material. Nothing in this clause affects OCWA’s ownership of all Intellectual Property Rights in any resulting analysis, document and/or publication. Any publishing or disclosure will only be done in accordance with the standards outlined in section 13.5 above.

20.3 To the extent that OCWA needs to use any Pre-existing Material or Third Party Material provided by the Customer for the purpose set out in clause 20.2, the Customer grants to, or must obtain for, OCWA for an indefinite period, a world-wide, royalty free, non-exclusive license (including the right to sublicense) to use, reproduce, adapt, modify and communicate that Pre-existing Material or Third Party Material for that purpose.

21. Entire agreement

21.1 The Contract contains the whole agreement between the parties and supersedes all representations, undertakings, understandings or other statements whether written or oral made prior to the date of the Customer’s application to participate in Proficiency Tests by and on behalf of OCWA to the Customer of any nature whatsoever.

22. Governing law and jurisdiction

22.1 The laws of the Province of Ontario, and the laws of Canada applicable therein shall be the law of this contract. All parties irrevocably agree and attorn to the jurisdiction of the courts of Ontario for any dispute under this Agreement.