Vendor Terms and Conditions
These Standard
Purchase Order Master Terms and Conditions (hereinafter, “Terms and
Conditions”) apply to each purchase order (hereinafter, “Purchase Order”)
issued by JVC Precision, (“Buyer”), including any Purchase Order placed
electronically or through a third party, to any provider of goods or services
(hereinafter, “Supplier”). For the purpose of these Terms and Conditions, the
term “Purchase Order” shall include any underlying agreement between Buyer and
Supplier under or related to which any Buyer purchase order may be issued, as
well as any appendices or attachments thereto.
1. GENERAL
Any Purchase Order
issued by Buyer to Supplier is placed subject only to these Terms and
Conditions. Any additional or inconsistent terms proposed by Supplier, including
via Acknowledgement, Invoice, email, or by any other means, will not be binding
on Buyer unless expressly agreed to in writing signed by an authorized
representative of Buyer’s Purchasing Department. These Terms and Conditions
shall prevail over any contrary or inconsistent terms in any invoice or
acknowledgement or other writing from Supplier. Any additional or inconsistent
terms however communicated by Supplier, including but not limited to terms in
any acknowledgment or invoice, shall be deemed objected to by Buyer without
need of further notice of Buyer’s objection.
2. PRICE
Supplier shall
furnish the goods and services at the prices stated in the Purchase Order. Any
change in the stated price will be effected by an amendment to that Purchase
Order as issued by Buyer. If the Purchase Order is placed on an open price
basis, then the price shall not be higher than Supplier’s lowest prevailing
price on the date of that Purchase Order for similar goods or services in
comparable quantities.
3. SUBCONTRACTS
Except for goods
proprietary to Supplier, none of the work to be performed pursuant to a
Purchase Order may be subcontracted without Buyer’s prior written consent.
However, Supplier’s obtaining parts and materials normally purchased by
Supplier shall not be construed as a subcontract.
4. PACKAGING AND
SHIPPING
Supplier will pack
all goods for shipment to Buyer so as to secure safe delivery and ship at the
lowest transportation rates to minimize costs unless otherwise stated in the
Purchase Order. No charge will be allowed for packing, crating or carriage
unless stated in the Purchase Order. Each container must be marked to show
Buyer’s order number, and a packing slip showing order number, Buyer’s part
number, and full product description of each item, must be included in each
package single unit unless other instructions are provided by Buyer.
5. INVOICES
Individual invoices
referencing Buyer’s order number, Buyer’s part number, and full product
description of each item, must be issued for each shipment applying against a
Purchase Order. Freight and other changes must be shown if discount is not
allowed on the full amount of invoice. Buyer shall pay undisputed and properly
issued invoices sixty (60) days from the date of invoice, unless otherwise
agreed in writing.
6. DELIVERY
The time of delivery
stated in the Purchase Order is of the essence for all Purchase Orders. The
time specified is for delivery at Buyer’s plant unless otherwise stated in the
Purchase Order. Delivery shall not be deemed complete until receipt, inspection
and acceptance by Buyer, notwithstanding delivery to any carrier. If deliveries
fail to meet the schedules specified in the Purchase Order, Buyer may require
Supplier to make express shipments, partial shipments, or both, and Supplier
will assume all excess shipping charges. Parts fabricated beyond Buyer’s requirements
are at Suppliers risk and expense. Invoices for goods shipped ahead of schedule
will not be paid until their normal maturity after the date specified for
delivery.
7. INSPECTION AND
ACCEPTANCE
All goods and
services will be subject to final inspection and acceptance by Buyer,
notwithstanding prior payment, which shall not constitute acceptance. Buyer may reject and return (for full credit,
or for full refund if already paid for) at Supplier’s expense any item which
does not conform to Buyer’s Purchase Order, or which is otherwise defective or
not in compliance with any or all of Supplier’s warranties (express or
implied). After notification to Supplier that goods are nonconforming, or are
rejected, or regarding which acceptance has been revoked by Buyer, all risk of
loss with respect to such goods shall be Supplier’s.
8. CHANGES
(a) By written
Change Order, Buyer may at any time make changes in one or more of the
following elements: designs, drawing, or specifications; method of shipment or
packing; place or time of delivery; or quantities to be furnished. Any acceleration in the delivery rate
requires Supplier’s advance consent. If such changes cause an increase or
decrease in the cost of, or the time required for furnishing, the work or
products, which are, at the time of changes, the subject of a substantially
completed Purchase Order as determined by Buyer, an equitable adjustment shall
be made in the Purchase Order price, delivery schedule, or both. In addition,
see 9(b) below. However, if the price or schedule adjustment is not included in
a written Change Order issued by Buyer, no increase in price or delay in
delivery will be allowed unless Supplier asserts such a claim in writing within
5 days from the date of the Change Order, to be followed as soon as practicable
with a specification of the claim and supporting data. This Section shall not
excuse Supplier from proceeding without delay in performing a Purchase
9. TERMINATION
(a) For cause: Buyer
reserves the right to terminate a Purchase Order, or any part thereof, and to
cancel all of or part of the undelivered portion of a Purchase Order, by
written notice to Supplier, if Supplier (i) fails to deliver the goods or
services by the time specified in the Purchase Order; (ii) fails to deliver goods
or services that meet the required specifications, or otherwise materially
breaches any of the terms of the Purchase Order, including the warranties;
(iii) fails to make progress in the work such that Buyer deems itself insecure
as to Supplier’s performance, and so notifies Supplier (see 9(b) above); (iv)
becomes insolvent; (v) files a voluntary petition in bankruptcy; (vi) becomes
the subject of an involuntary petition to have Supplier declared bankrupt,
unless the petition is vacated within thirty days after filing; or (vii)
executes any assignment for the benefit of creditors. Buyer shall have no
obligations to Supplier in respect of any Purchase Order which has been
cancelled by Buyer in accordance with this Section, and Buyer’s liability shall
be limited to payment for the delivered portion of the Purchase Order (but only
with respect to conforming and non-defective goods or services) at the rate
specified on the face thereof (reflecting quantity prices as though the
Purchase Order had gone to full completion). If as a result of any of the
foregoing Buyer terminates a Purchase Order in whole or in part and Buyer
procures any substitute goods or services elsewhere, then Supplier will be
liable to Buyer for any re-procurement charges, including incidental and
consequential damages, which exceed the amount which would have been due if
Supplier had satisfactorily completed the Purchase Order. These remedies shall
be cumulative and additional to any other remedies available to Buyer.
(b) For convenience:
Buyer may, for its convenience, terminate work under the Purchase Order in
whole or in part at any time by giving notice to Supplier in writing. Supplier
will thereupon immediately stop work on the Purchase Order referenced or the
terminated portion thereof and notify any subcontractors to do likewise.
Supplier will be entitled to: (i) reimbursement for its actual costs incurred
up to and including the date of termination, such costs to be determined in
accordance with recognized accounting principles, and (ii) a reasonable profit
on the work done prior to termination at a rate not exceeding the rate used
establishing the original purchase price; provided, however, if it appears
Supplier would have sustained a loss on the Order, no profit shall be allowed
and reimbursement of costs shall be adjusted to reflect the indicated rate of
loss. In no event shall Buyer’s obligations as a consequence of the termination
exceed the Purchase Order Price of the items terminated. At its election, Buyer
shall have the right to direct the disposition of work-in-process, parts and
materials included in Supplier’s reimbursed costs; Supplier will comply with
and be reimbursed for reasonable expenses incurred in effecting Buyer’s
directions. Prior to settlement of Supplier’s termination claim, Supplier shall
make available for inspection (i) all inventory included in the claim, and (ii)
all directly pertinent books, records and documents relating to claimed costs.
(c) If a Purchase
Order is totally or partially terminated by a “for cause” notice and it is
determined that Supplier’s failure is an excusable failure or delay as defined
below, then such notice shall be deemed to have been issued “for convenience”
and the rights of the parties shall be governed by paragraph (b) above.
10. GENERAL
INDEMNIFICATION/INSURANCE
(a) Supplier shall
protect, defend, indemnify, and hold harmless Buyer from and against any
claims, suits, losses, costs, expenses, damages, or liability, including
without limitation for Buyer’s reasonable attorneys’ fees, court costs and
associated legal expenses, incurred on account of, or arising from or occurring
in connection with the goods and services purchased from Supplier or Supplier’s
negligence, willful misconduct or breach of these Terms and Conditions or from
any and all allegations or claims of bodily injury, death, or property damage
resulting from (i) any act or omission of Supplier (including its agents,
employees and subcontractors) in the course of performing the Purchase Order,
supplying Products, or in relation to any other agreement with Buyer or; (ii)
any Supplier Product or service, or (iii) the handling, display, sale, use,
consumption or distribution by Buyer or Buyer’s customers of Supplier’s
Products or service (including, without limitation, any express or implied
warranties made by Supplier).
(b) Supplier shall
keep in full force and effect at all times, a public liability insurance policy
or policies with coverage for both Products and completed operations,
containing blanket and broad form contractual and general liability coverage
insuring the above obligations under14(a) and insuring all written contracts of
Supplier, and naming Buyer as an Additional Insured, which such insurance shall
be primary over any other insurance which Buyer may have, and shall be written
by an insurance carrier acceptable to Buyer in aggregate amounts required by
Buyer which shall not be less than $2 million per occurrence, combined single
limit, for bodily injury and property damage, and Supplier will deliver to Buyer
a completed certificate of insurance on standard Acord forms approved by Buyer
and signed by an authorized representative of Supplier’s insurance carrier(s)
certifying that such insurance coverage has been issued, is in full force,
naming Buyer as an Additional Insured, and that if such insurance is cancelled
or changed so as to affect the coverage, at least thirty (30) days prior
written notice of such cancellation or change will be sent to Buyer.
11. WARRANTIES
Supplier expressly
warrants to Buyer (and its assigns), cumulatively, that all goods furnished
under a purchase Order will, at the very least: (i) be free from defects in
materials and workmanship, (ii) conform to applicable specifications and
drawings signed off on by Buyer, and also to any samples or other descriptions
including test results provided to Buyer by Supplier, (iii) be free from
defects in design except to the degree such goods are manufactured to Buyer’s
sole models design specification, (iv) be suitable for Buyer’s intended
purpose, (v) be of merchantable quality, and (vi) be free of defects in title.
Supplier further warrants that all services performed under a Purchase Order
will be free from defects of workmanship. Supplier shall at its sole cost and
expense, and at Buyer’s sole option, repair, replace, or refund the purchase
price of any Products sold to Buyer with respect to which any of these
warranties is breached. These warranties and remedies shall be cumulative and
non-exclusive and shall remain in effect for a period of time consistent with
the warranty life normally offered by Supplier, but in no event shall same be
for a period of less than three (3) years from date of claim of defect by
Buyer.
12. NOTICE OF LABOR
DISPUTES
Supplier shall
immediately give notice to Buyer of any labor dispute which threatens to delay
the timely performance of the Purchase Order.
13. COMPLIANCE WITH
APPLICABLE LAW AND BUYER’S CODE OF CONDUCT
Supplier hereby
certifies that all goods and services will be furnished in compliance with all
applicable Federal, Provincial and local laws, including but not limited to,
the Canada Labour Code, the Occupational Safety and Health Act (OSHA), the
Toxic Substance Control Act, that all products are “DRC Conflict Free” and to
its knowledge, the laws and regulations of any country where the products are
manufactured have been complied with. Further, Supplier agrees to protect,
defend, indemnify and hold harmless Buyer from and against any fines,
penalties, storage fees, seizures, detentions, forfeitures and reasonable
attorney’s fees that may be imposed, assessed or incurred as the result of
Supplier’s or its subcontractor’s failure to comply with any laws or
regulations.
14. CONFIDENTIALITY
(a) Supplier will
treat as confidential all specifications, drawings, blueprints, and other
technical data supplied by or on behalf of Buyer. Supplier further agrees to
(i) limit use of the aforementioned data to the performance of the specific
Purchase Order, and (ii) limit disclosure to those employees necessary for the
performance of the Purchase Order, unless prior written consent has been
granted by the Buyer to permit other use or disclosure. Supplier shall upon
Buyer’s request or upon completion of the Purchase Order promptly return all
data supplied by Buyer and destroy any and all copies.
15. ADVERTISING
Supplier shall not
advertise a Purchase Order or any part of it without Buyer’s Approval. Postings on social media constitutes
advertising.
16. TAXES
Buyer shall not be
liable for any Federal, Provincial or local taxes unless separately stated on a
Purchase Order and billed as a separate item. No sales or use tax shall be
added when an exemption is indicated on the face of a Purchase Order or an
exemption certificate is supplied by Buyer.
17. GOVERNING LAW
A Purchase Order
shall be construed in accordance with, and governed by, the substantive laws of
the Province of Ontario without regard to the principles of conflict of laws
thereof.
18. NON- WAIVER OF
RIGHTS
The failure of Buyer
to insist upon strict performance of any of these Terms and Conditions with
respect to a Purchase Order or to exercise any rights or remedies shall not be
construed as a waiver of Buyer’s rights.
19. ENTIRE AGREEMENT
These Terms and
Conditions are intended by the parties as a final expression of their
agreement, contain the entire understanding of the parties with respect to all
Purchase Orders, supersede all prior agreements and understandings, oral or
written, with respect to such matters and are a complete and exclusive
statement of the terms thereof.
20. WAIVER AND
AMENDMENT
No provision of
these Terms and Conditions may be waived or amended with respect to a
particular Purchase Order unless in a written instrument signed, in the case of
an amendment, by Buyer and that expressly states it is amending these Terms and
Conditions, or, in the case of a waiver, by the party against whom a waiver of
any such provision is sought provided that such waiver expressly references
these Terms and Conditions.