1.0 GENERAL REQUIREMENTS
1.1 SCOPE AND
ACCEPTANCE OF PURCHASE ORDER – (a) The term “Buyer” shall mean W.R. Davis Incorporated and
the term “Supplier” shall mean the individual, partnership, firm, or company
identified on the Purchase Order. Except where prohibited by law, the
terms and conditions of this Purchase Order (“PO”) will apply to Buyer’s
purchase of hardware, materials, products and services (collectively
“Product(s) and Service(s)” and/or licensing of software (“Software”) described
on this PO or an attachment to this PO. Supplier acknowledges that these terms
and conditions will be binding on both parties and no signature by either party
is required. Supplier waives the application of his/her own terms of sale,
licensing and delivery, which shall not become a part of this PO either by
Buyer’s silence or acceptance of delivery. In the event a contract number is
identified in or on this PO or, if not identified, a current and applicable
contract exists, such contract will apply to the purchases and/or licenses
under this PO and, with the exception of this Paragraph 1.1, supersede the
terms and conditions of this PO. (b) This PO will be deemed accepted by Supplier upon the earlier of:
(i) expiration of five (5) business days from the
date of issuance; or (ii) Supplier's (1) written acceptance of the PO; (2)
shipment/delivery of the Product(s) and/or Software; (3) commencement of
Services; or (4) submission of the first invoice.
1.2 PRICES AND DISCOUNTS – The prices and discounts will be as
provided in this PO, an attachment to this PO or the applicable contract
pursuant to paragraph 1.1.
1.3 TAXES – All prices mentioned in this PO are
exclusive of value added taxes, use taxes, federal excise taxes, turnover
taxes, sales taxes or similar taxes,
including any related interest and penalties (hereinafter all referred to as
“Taxes”). Any Taxes payable on the Products, Software or Services will be added
to the prices and will be for the account of Buyer. Supplier will ensure that
invoices are issued to meet the requirements for deduction of input taxes by Buyer.
Supplier shall be responsible for all other taxes.
1.4 PAYMENT TERMS - Payment shall be made by Buyer
within thirty (30) calendar days from date of receipt.
1.5 ELECTRONIC PROCESSING - Supplier will meet Buyer’s
requirements for using electronic means to issue changes, invoices and other
payments, and communications.
1.6 CHANGES - Buyer may
require changes to this PO at any time. Any price and/or schedule adjustments
will be mutually agreed upon. Supplier’s performance of such changes shall not
be delayed during any negotiations for adjustments.
1.7 BUSINESS
PRINCIPLES - Supplier
acknowledges and agrees that Buyer requires that Supplier maintain a high
standard of ethical conduct in all its dealings with Buyer.
1.8 BUSINESS
CONTINUITY - Supplier shall use commercially reasonable efforts
to develop and maintain commercially reasonable business continuity management
procedures (“BCM Procedures”) regarding contingency management to alleviate the
effects of any business impacting events (“Business Impacting Incidents”) that
may have a material and adverse impact on Supplier’s ability to perform its
obligations under this PO. The Business Continuity Plan shall contain at a
minimum provisions for (a) a risk assessment and business impact analysis, (b)
a prevention/mitigation plan, and (c) a resumption of service plan, including a
recovery/restoration plan. The preceding will cover, but not be limited to, (i) services documentation storage and protection
(including, but not limited, to storage of deliverable technical information,
Specifications and other documentation, design documents, tools, process and
fixtures), (ii) information systems security and redundancy, and (iii)
demonstrating Supplier’s ability to rapidly recover the loss of capability to
deliver services and Product.
1.9 ASSIGNMENT
–This PO cannot be assigned, except for moneys due, without the prior
written consent of Buyer.
1.10 APPLICATION
OF LAW – This PO shall be governed by and construed in accordance with the laws
of the Province of Ontario, Canada, excluding its conflict of law provisions.
The United Nations Convention on Contracts for the International Sale of Goods
shall not apply to this PO.
1.11 COMPLIANCE
WITH LAWS – (a) Each Party and its respective agents and
affiliates shall, and shall cause their respective employees to, comply with
all applicable local, national, regional and international laws, ordinances,
regulations, codes, standards, directives and international conventions and
agreements to the extent that any of the foregoing have the force of law by
being directly enforceable by a governmental authority, a court or other proper
tribunal, (collectively “Laws”), including, as applicable, but not limited to, anti-bribery
and records keeping laws, conventions and/or directives of each country in
which such party conducts business as it relates to this Agreement. (b) Each
Party and its respective agents and affiliates shall, and each shall cause its
respective employees to, comply with all laws, ordinances and/or directives of
countries in which the Parties conduct business as they relate to the Universal
Declaration of Human Rights, child labor laws, data privacy laws, criminal
reporting laws, environmental, health and safety laws or any similar laws,
including, but not limited to identifying and filing or purchasing (as
applicable) any and all required permits, certificates, licenses, insurance,
approvals and inspections required in performance
of its obligations under POs; (c) Each party shall comply with such
regulations, laws and/or directives as may be applicable to, but not limited
to, the place(s) of (i) manufacture of the Products,
(ii) intended use of the Products, (iii) travel/pass through of the Products,
(iv) final destination of the Products, and/or (v) place of delivery of
Services.
1.12 SETTLEMENT
OF DISPUTES – (a) Dispute Resolution Process - (i) In the event of a dispute, prior to taking any other
legal actions, an aggrieved Party shall provide written notice to the other
Party of its intention to engage in informal discussions to resolve the dispute
pursuant to this Section. For a period of no more than thirty (30) days from
the date of such notice, unless otherwise extended by mutual agreement, authorized
representatives of both Parties will endeavor, in good faith, to settle the
dispute. (ii) In the event the authorized representatives are unable to resolve
the dispute within such 30-day period, either Party may provide written notice
to the other Party requesting escalation of the dispute to the Parties’ next
appropriate level of management (”Senior Representatives”). The Parties will
use good faith efforts to schedule the meeting of the Senior Representatives
within ten (10) days from such notice. The Senior Representatives will meet to
discuss the matter and will endeavor, in good faith, to settle the dispute
within thirty (30) days from the meeting. (iii) If the Parties’ Senior
Representatives are not able to resolve the dispute within thirty (30) days
from the meeting and unless otherwise agreed upon, the Parties shall submit the
dispute to arbitration, as defined below. (iv) All
defenses based on passage of time will be suspended pending the conclusion of
this dispute resolution process, including, if exercised, the arbitration
process defined herein. (b) Arbitration – (i) All disputes arising out of this PO shall be finally settled
pursuant to the Arbitration Act (Ontario) by one arbitrator: the arbitrator
shall either be agreed by the parties or be appointed. The language of the
proceedings shall be English. Each party shall submit a brief not to exceed 10
pages and the arbitration shall not exceed two days in duration. The arbitrators ‘decision shall follow the
plain and natural meaning of the relevant documents, and shall be final and
binding. The arbitrators will have no power to award (1) damages inconsistent
with this PO, or (2) punitive damages or any other damages not measured by a
Party’s actual damages, and the parties expressly waive their right to obtain
such punitive damages in arbitration or in any other forum. The arbitral award may be entered in any
court having jurisdiction. All aspects of the arbitration will be confidential.
Each party will promptly pay its share of all arbitration fees and costs. The
arbitration proceedings shall take place in Ottawa Ontario. (c) Other Relief –
Nothing in this section will be construed to preclude either Party from seeking
injunctive relief in a court of competent jurisdiction in order to protect its
rights during the dispute resolution process.
1.13 INDEPENDENT
CONTRACTOR - NO AGENCY – Each party to this Agreement is an
independent contractor and not an agent of the other.
1.14 INSURANCE – Supplier
agrees to acquire and maintain insurance on all property on the Supplier’s
premises owned by the Buyer against loss of damage resulting from fire
(including extended coverage) theft, malicious mischief and vandalism. Supplier
will provide Buyer certificates or proof of insurance upon request which
complies with Buyer’s policy.
1.15 MARKS – Supplier
will not, without Buyer’s prior written consent, make any use of Buyer or its
affiliates’ trade names, trademarks, logos, or any other Buyer designation or
drawing (“Marks”).
1.16 ENVIRONMENTAL
HEALTH AND SAFETY – Supplier will test and inspect Products prior to
shipment, to ensure compliance with all laws and regulations that Buyer is
subject to for the use of the Products and use testing and inspection
procedures approved in writing by Buyer if any.
1.17 SOFTWARE LICENSE –Supplier
hereby grants Buyer a world-wide, non-exclusive, royalty-free, unrestricted,
perpetual, transferable license to use, have used, reproduce, have reproduced,
distribute, license and sublicense, as applicable, all Software licensed under
this PO. Buyer will not reverse compile or disassemble the Software. This
Software license shall survive termination of this PO. Buyer shall have the
right to distribute any pre-paid Software until such inventory is depleted.
1.18 SUPPLIER
PERSONNEL - All persons furnished by Supplier, including
employees, agents, or subcontractors, shall be deemed Supplier Personnel and Supplier
will be responsible for ensuring payment of all unemployment, social security,
social insurance and other payroll taxes, including contributions when required
by law. Supplier Personnel will not be covered by, and shall be excluded from
participation in, any Buyer employee benefit plan. Supplier will be responsible
for Supplier’s own labour relations with any labour organization either representing or seeking to
represent Supplier Personnel
1.19 SUPPLIER
INFORMATION – Supplier will not provide any of its
or a third part’s technical, business or other information unless Supplier has
the right to do so, and the parties will not view any of the foregoing as
confidential or proprietary. If Supplier desires to provide to Buyer
confidential and /or proprietary information with restrictions, it can only be
furnished and accepted under a separately executed non- disclosure agreement
between Buyer and Suppliers.
1.20 BUYER’S
INFORMATION - Supplier will view as Buyer’s property any idea,
data, program, technical, Buyer marks, business or other information owned or
controlled by Buyer, and provided to, or acquired by Supplier in connection
with this PO (Information). Supplier will keep Information confidential, use it
only in performing under this PO and obligate Supplier Personnel to do so. This
does not apply to information previously known to Supplier free of obligation,
or made public through no fault of Supplier. Following Buyer’s directions, Supplier
will, at its own expense, destroy or return the original and/or any copy of
Information.
1.21 DATA
PRIVACY – Supplier agrees that any collection, use and/or storage of personally
identifiable information shall be in accordance with the data privacy laws of
the applicable country in which such personally identifiable information is to
be collected, used, transmitted and/or stored.
1.22 SURVIVAL – All rights
and obligations, as well as the general terms, that by their
nature would continue beyond the termination, cancellation or expiration of
this PO, will survive termination, cancellation or expiration.
1.23 Termination
for Convenience – Buyer may at any time terminate or cancel this PO
and/or Services, in whole or in part, by written notice to Supplier. PO’s may
be cancelled prior to shipment/delivery of Products and/or Services without
liability to Buyer. Buyer’s liability for terminated Services will be limited
to the amount due for services performed and accepted up to the date of
cancellation.
1.24 Termination for default - Buyer may terminate all or any part
of this PO by written notice to Seller if: (i) Seller
fails to delivery to Product or perform the Services within the time specified
by this P/O or any written extension authorized by Buyer ; (ii) Seller fails to
perform any other provision under this P/O or fails to make progress, so as to
endanger delivery or service performance of this P/O , and, in either of these
two circumstances, does not cure the failure to Buyer’s satisfaction within
thirty (30) days after receipt of notice from Buyer specifying the failure; or
(iii) in the event Seller declares bankruptcy, suspension its business
operation, or initiates any reorganization and/or arrangement for the benefit
of its creditors.
1.25 Force Majeure - Neither
Party shall be liable for any delay or failure in performing its obligations
hereunder that is due to circumstances beyond such Party’s reasonable control,
including, but not limited to, acts of God or the public enemy, actions or
decrees of government entities, civil unrest, acts of terrorism, riots, war,
fire, unusually severe weather, earthquakes, volcanoes, explosions, strikes by
subcontracts or vendors other than those of seller, or the concerted acts of labour
(Force Majeure Event), provided that such
circumstance were not reasonable foreseeable by such Party and, by the exercise
of reasonable commercial due diligence , could not have
been prevented or mitigated by such Party. Upon the occurrence of a Force Majeure
Event , the affected Party shall give
five (5) calendar days’ notice, to the other Party of the nature of
any such conditions and the extent of
the anticipated delay resulting from
such conditions, at which time performance of this P/O to the extent affected
by the Force Majeure event shall immediately be suspended without penalty to
such affected Party. The Party who has been affected shall take all reasonable
actions to resume performance hereunder as soon as such Force Majeure Event is
removed or ceases. If the period of non performance exceeds thirty (30)
calendar days from receipt of the notice of the Force Majeure event, Company
may terminate this P/O immediately upon written Notice to Seller.
1.26 TITLE AND
RISK OF LOSS - Title or in the case of software the license shall
take effect and risk of loss to Product(s) will vest in Buyer when the Product(s)
is delivered according to the shipping terms on this PO. If additional services
are to be performed after delivery, Supplier will retain risk of loss until
such services have been performed and the Product(s) is accepted by Buyer or
customer, as applicable.
1.27 ENTIRE
AGREEMENT - This PO is the parties’ entire agreement as to the Products, Services
and for Software to be provided hereunder and, except as provided in Paragraph
1.0, supersedes all prior agreements, proposals, communications and
understandings, whether written, oral or electronic. This PO can only be
amended with a writing signed by both parties.
1.28 DISCONTINUED
PRODUCT – Supplier will not discontinue Product without Buyer’s advance written
consent. Buyer’s consent will be conditioned on Supplier’s not discontinuing
the Products for eighteen (18) months from consent, unless the parties agree in
writing to a longer period. Supplier will accept all PO’s issued during the
eighteen (18) months. Supplier will ensure that its suppliers give Supplier
similar notice of discontinuance of its products which are used in or supplied
as the Product(s).
1.29 COUNTERFEIT
PARTS - Supplier shall plan, implement, and control processes, appropriate to
the Supplier and the product, for the prevention of Counterfeit or suspect
Counterfeit Part use and their inclusion in product(s) delivered to Buyer. If
suspect counterfeit parts are furnished under this PO or are found in any of
the products delivered hereunder, such items will be impounded by Buyer to
prevent reentry into the supply chain. The Supplier shall promptly replace the
suspected counterfeit parts with parts acceptable to the Buyer. The Supplier
shall be liable for all costs relating to the removal and replacement of
counterfeit parts, including without limitation Buyer's external and internal costs of removing the counterfeit
parts, of reinserting replacement parts and of any testing required by the
reinstallation of Supplier's goods after counterfeit parts have been
exchanged. Supplier shall be fully liable for all cost associated with change
parts out, material handling and all other related costs.
1.30 TOOLS,
JIGS, FIXTURES, DIES, PATTERNS, TEST EQUIPEMENT Heretofore and hereafter
furnished by Buyer or purchased by Buyer from Supplier shall become and/or remains
the property of the Buyer. These Tools, Jigs, Fixtures, Dies, Patterns, Test
Equipment shall be used exclusively for the Buyer’s Product and may not be
disclosed to anyone else or used by
Supplier for anyone other than the Buyer. The Supplier agrees to store and keep
in good condition all Tools, Jigs, Fixtures, Dies, Patterns, and Test Equipment
up to and including calibration without cost to the Buyer.
1.31
GOVERNMENT OWNED TOOLING - Davis is subject to Integrated Defense System (IDS) Special
Tooling requirements under Boeing contracts. We hereby flow this requirement as
necessary to our suppliers as follows: A) Seller is required to maintain a
special tooling management process that complies with the requirements of
D950011059-1,”IDS Seller Special Tooling Requirements.” D950-11059-1 is
incorporated herein and made part hereof by reference. B) Buyer reserves the
right to conduct surveillance at Seller’s facility to determine whether
Seller’s special tooling management process meets the requirement of this clause.
A copy of D950-11059-1 can be obtained at the following URL address:
http://boeing.com/companyoffices/doingbiz/supplier_
portal/index_general.html.
1.32 BUYER
FURNISHED MATERIAL - Supplier agrees to exercise reasonable care in the safeguarding and
preservation of all Buyer-furnished property and assumes all responsibility for
loss, damage or destruction while such property is within Seller’s possession
or control.