Version: 2021-10-01
The Purchase Order is deemed accepted by Supplier upon the first of the following occurrences: (a) any performance by Supplier following receipt of the Purchase Order; or (b) the passage of 10 days following Supplier’s receipt of the Purchase Order without written notice to Client of rejection from Supplier.
No terms or conditions submitted by Supplier that are in addition to, different from or inconsistent with those contained in the Purchase Order, including Supplier’s standard printed terms and conditions, and any terms and conditions contained in any Supplier quotation, invoice, order acknowledgment, confirmation, acceptance, bill of lading or other instrument or notification, shall be binding upon Client unless specifically and expressly agreed to in writing by Client.
If and to the extent that the Purchase Order includes any estimates, forecasts, approximations or requirements of or by Client relating to the purchase of Goods and/or Services, Supplier acknowledges and agrees that such estimates, forecasts, approximations or requirements: (a) are estimates only; (b) are not guaranteed; and (c) do not create a commitment to purchase any volume or quantity of Goods and/or Services from Supplier.
Supplier shall deliver the Goods and/or perform the Services at the Delivery Point in accordance with the Delivery Schedule. Supplier acknowledges and agrees that time is of the essence for the delivery or performance under the Purchase Order.
Risk of loss of the Goods remains with Supplier until their final inspection and acceptance by Client. Notwithstanding any acceptance by Client at Supplier’s facilities, Goods and Deliverables are subject to final inspection and acceptance by Client upon receipt at the Delivery Point. Final inspection and acceptance by Client does not relieve Supplier from any of its obligations under the Purchase Order, and shall not be construed to prejudice any of Client’s rights or remedies under the Purchase Order or at law.
Supplier shall comply with Client’s general quality requirements which are identical to the requirements set forth in the latest issue of the “Quality Requirements for Suppliers” document number DQD 4.6-40. Supplier can ask to receive a copy of the latest issue.
Client shall pay to Supplier the Price. The Price is inclusive of all costs and expenses of Supplier in delivering the Goods and/or performing the Services. Separate invoices, in duplicate, must be remitted by Supplier based on whether Goods were delivered and/or Services rendered. Invoices must be addressed to Client’s accounts payable department as indicated on the Purchase Order.
Invoices shall show a breakdown of non-recurring and recurring prices, if applicable, per Good and/or Service. Invoices shall also state, as applicable: the Purchase Order and line item numbers (with the invoice addressing only one Purchase Order); description of the Goods delivered and/or the Services performed; the aircraft tail number; drawing number; serial number and part number of the item; Client’s part number; unit price, total price stated in the applicable currency; Buyer’s Taxes as separate line item; Supplier’s relevant tax registration numbers; packing slip number; number of packages and articles or containers shipped. If the shipment is sent by messenger, Supplier shall state and include the waybill number. Errors or lack of supporting documentation, as specified in the Purchase Order, are cause for withholding payment until such error or lack of supporting documentation is corrected. For greater clarity, payment of an invoice (or approval for payment by Client) shall not be construed as evidence or an admission that the Goods and/or Services meet the requirements of the Purchase Order. Supplier agrees to maintain accounts and records related to its performance under the Purchase Order and agrees that Client may audit Supplier with respect to Supplier’s performance under the Purchase Order.
Under no circumstances shall a payment by Client, when considered with payments already made and those that remain owing under the Purchase Order, exceed the Price.
Upon receipt from Client of amounts invoiced pursuant to Section 5, Supplier waives and releases all rights to, and shall obtain, at its sole costs and expenses, the prompt removal of, any Liens, against Client or its assets, which then exist or which may thereafter arise for Goods delivered or Services performed on or before the date of the relevant invoice. All payments owed to Supplier hereunder are contingent upon Supplier providing Client, upon request, evidence of Supplier’s compliance with the foregoing. For greater clarity, the foregoing does not grant Supplier the right to register a Lien against Client or its assets.
If Client places additional purchase orders for Goods and/or Services covered by a Purchase Order and such purchase orders could have been combined in such Purchase Order to benefit from a price advantage, Supplier acknowledges and agrees that such price advantage shall apply to the relevant purchase orders. In such event, the refund, credit or discount reflecting such price advantage shall be evidenced by way of a credit note applicable, at Client’s entire discretion, to any current or future invoices.
With the exception of applicable Buyer’s Taxes, Supplier shall be responsible for all taxes, including withholding, fees, interests and penalties, which are, or may be, imposed or assessed by any governmental authority or agency, or any taxing authority, as a result of, or in connection with this Purchase Order.
If any Buyer’s Taxes are applicable and chargeable, Supplier must provide to Client a valid invoice in accordance with the applicable tax legislation. If applicable, no Buyer’s Taxes shall be charged by Supplier when Client provides a valid exemption certificate to Supplier. For the avoidance of doubt, when payment is subject to withholding taxes, unless Supplier provides Client with a valid and timely exemption documentation, Client will withhold from payment the amount required to satisfy tax withholding obligations under applicable laws.
In respect of the Goods, Supplier represents and warrants that: (a) it has good title to the Goods and the transfer of title to Client is free and clear of Liens; (b) the Goods conform to any specifications and/or standards provided by Client, or by Supplier and approved by Client; (c) the Goods are provided in accordance with applicable laws and, apart from the Goods for which the design is provided by Client, are free from defects in design; and (d) the Goods are free from defects in materials and workmanship for a period of 24 months from acceptance of the Goods by Client or for a longer period as may be provided in the Purchase Order. For greater certainty, the warranty set out in (a), (b) and (c) above applies for an unlimited period of time.
In respect of the Services, Supplier represents and warrants that the Services (a) conform to any specifications and/or standards provided by Client, or by Supplier and approved by Client; (b) are provided in accordance with applicable laws; and (c) will be performed expeditiously and consistent with good business practices and professional standards of other top-tier leading service providers of similar services in similar circumstances.
Supplier represents and warrants that it shall make and deliver the Goods and/or perform the Services under the Purchase Order, both individually and in the aggregate, on terms and conditions, including the Price, that are at least as favourable as the terms and conditions made available by Supplier to any of its other customers purchasing any one or more substantially similar goods or services when sold in similar volumes.
In supplying the Goods and performing the Services, Supplier must: (a) comply with and ensure that Supplier Personnel and Subcontractors comply with all applicable laws and regulations; (b) comply with Client’s sustainability policies available at Dehavilland.com (c) to the extent that Supplier Personnel or Subcontractors are required to enter into Client’s site or property, ensure that they (i) comply with Client’s written health, safety and environmental policies and standards provided to Supplier, and (ii) acknowledge that they enter onto Client’s site or property at their own risk; (d) represent and warrant that it has not violated and will not violate, in connection with the Purchase Order, any applicable anti-corruption law; (e) represent and warrant that it is in compliance with and will continue to comply with all Export Laws and that it has not been and is not currently included on any government sanctions list or any other denied/debarred party list; and (f) inform Client in writing of any changes in such Export Laws if so applicable, and shall obtain and renew any necessary governmental export permit or similar authorization if so required. For all controlled goods and technologies covered by the Purchase Order, Supplier shall send to Client’s export control group a written notice indicating all controlled goods and technologies, as per the requirements of any governmental agency having authority. All communication inquiries or representations regarding controlled goods and technologies shall be sent by e-mail to: Director.SupplyChain@dehavilland.com
Client understands and agrees that Supplier has the sole authority and responsibility to supervise and direct the activities of Supplier Personnel and Subcontractors performed on Client’s site or property. Supplier warrants that, at all times, it shall remain in good standing with, and pay promptly when due, all amounts required by any authority having jurisdiction over the Purchase Order or Supplier, with respect to health and safety matters, workers’ compensation and other employee related matters, and shall, upon Client’s request, provide a certificate of good standing from such authority.
Supplier will comply and provide all the information necessary for Client and/or Client’s customers to comply with all laws, statutes, decrees, treaties, regulations, orders, directives, or norms (“Environmental Regulations”) issued by any relevant governmental or other regulatory or administrative authority with respect to public health or safety or the environment, as they relate to the Services or the Goods.
As part of Supplier’s compliance with Environmental Regulations, Supplier shall fulfill at all times the requirements of the European Regulation (EC) No. 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (“REACH”).
Without limiting Supplier’s obligations or liabilities hereunder, Supplier shall, at its sole costs and expenses, and for the duration of the Purchase Order and all applicable warranty periods, purchase and maintain the following insurance coverage:
Supplier shall prior to execution of the Purchase Order and subsequently prior to renewal of the required insurances provide to Client or its designee certificates of insurance and endorsements as evidence of the insurance required under the Purchase Order. To the extent Supplier uses a Subcontractor for any portion of the Goods and/or Services, Supplier shall ensure that such Subcontractor is subjected to the same insurance requirements contained in this Section 11.
In any event, if Supplier is processing Client’s Confidential Information, or if Supplier has dependencies on its computer systems to deliver the Goods and/or perform the Services, Supplier shall maintain an information security policy and/or process to ensure confidentiality on such systems and prevent viruses, malware and cyberattacks. Client’s Confidential Information shall be securely deleted from all electronic media reused, destroyed when defective, sent for repair or no longer required.
In the event that a confidentiality agreement has been executed between Client and Supplier, such agreement shall take precedence over the following.
The parties agree that they shall: (a) not use Confidential Information for any purpose other than as may be required for the performance of their obligations under the Purchase Order; (b) not directly or indirectly disclose or allow access to any Confidential Information to or by any third party except as expressly permitted in the Purchase Order; (c) take all measures reasonably required to maintain the confidentiality and security of all Confidential Information; and (d) if receiving party suspects or becomes aware of any unauthorized disclosure of or access to any Confidential Information: (i) immediately notify disclosing party; (ii) enforce against any person that is or may be engaging in such unauthorized disclosure or access any rights that receiving party has to require such person to cease such unauthorized activities; and (iii) do all things, execute all documents and give all assistance reasonably required by disclosing party in connection with such unauthorised disclosure.
The parties may disclose Confidential Information if and to the extent required by applicable law, provided, however, that receiving party must first give disclosing party notice of such compelled disclosure and provide disclosing party with an opportunity to take such steps as it desires to contest such disclosure or seek a protective order. The parties may disclose Confidential Information to: (a) their professional advisors if and to the extent that such persons need to know such Confidential Information in order to provide the applicable professional advisory services relating to the parties’ business; and (b) Supplier Personnel and Subcontractors if and to the extent that such persons need to know such Confidential Information to perform their respective obligations under the Purchase Order; provided, however, that any such person has entered into an agreement with Supplier that includes confidentiality obligations in respect of such Confidential Information that are not less stringent than those contained in this Section 13.
All Confidential Information shall be returned to disclosing party or destroyed upon disclosing party’s request with a certified written confirmation of such destruction, upon completion or termination of the Purchase Order provided, however, that receiving party may retain a copy of the Confidential Information held in its general computer back-up records made for internal recovery procedures. This Section 13 shall survive for a period of 5 years following the return or destruction of the Confidential Information.
Supplier warrants that it shall comply with its obligations under all applicable laws regulating the processing of Personal Data, including the Personal Information Protection and Electronic Documents Act, the Quebec Act Respecting the Protection of Personal Information in the Private Sector and, if applicable, the General Data Protection Regulation (Regulation (EU) 2016/679). Supplier accepts that in relation to all Client Personal Data, it must (a) only process it on behalf of Client and solely for the purposes of delivering Goods and/or performing Services under the Purchase Order, and as directed by Client; (b) not disclose Client Personal Data to any other person without Client’s prior written consent, unless the disclosure is required by applicable law (and Supplier immediately notifies Client, unless such notification is prohibited by that law); (c) promptly notify Client as soon as it has received a complaint from any individual regarding the way his or her Personal Data has been processed, disclosed or used and cooperate when Client is investigating any claim related to individual complaints; and (d) make available to Client any information necessary to demonstrate compliance with the obligations in this Section. Supplier must put in place and maintain appropriate information technology and organisational processes to secure Client Personal Data, having regard to the risk of accidental or unauthorised disclosure of Client Personal Data. Supplier remains fully responsible and liable for any acts or omissions of Supplier Personnel and Subcontractors in their performance of the Services and for the processing, disclosure and use of Personal Data.
All Deliverables are deemed to be owned by Client. Client is deemed to be the “inventor”, “author”, and “owner” of all Deliverables under applicable law. Supplier agrees to assign, and hereby assigns, to Client any and all intellectual property rights created or acquired in the performance of the Services.
All intellectual property (i) created or acquired by a party, at any time, independently of the performance of the Purchase Order; or (ii) owned or licensed by a party prior to the earlier of the date of the Purchase Order or the initial performance of any obligation under the Purchase Order (collectively, “Background Intellectual Property”), remain the property of such party. Supplier hereby grants to Client and its affiliates a perpetual, non-exclusive, sub-licensable, transferable, worldwide license to use Supplier Background Intellectual Property in connection with the use, resale, modification, reproduction and disclosure of the Goods and Deliverables.
Supplier represents and warrants that the Goods and Services and their use do not and will not infringe the trademark, copyright, patent or trade secret rights or other intellectual property rights of a third party.
Supplier shall not use any trade name or trademarks of Client or its affiliates without first obtaining Client’s prior written approval.
If either party is prevented from performing or is unable to perform any of its obligations under the Purchase Order due to a Force Majeure Event, and has given prompt written notice to the other party, then the affected party’s failure to perform shall be excused and the time allowed for performance shall automatically be extended to account for the applicable period of delay or inability to perform due to such Force Majeure Event. The party subject to such Force Majeure Event shall: (a) promptly notify the other party of the circumstances causing the failure or delay; (b) provide reasonably sufficient documentation to establish the impact of such party’s failure or delay; and (c) resume performance whenever and to whatever extent possible without delay, including workaround plans, implementation of a disaster recovery plan or other means. In the event that Supplier is delayed in the performance of the Services by a Force Majeure Event, Supplier shall, but only in respect of the portion of the Goods and/or Services that have been actually delayed, be entitled to an equitable adjustment in the time allowed for the performance of the Goods and/or Services.
Any adjustments required following a Force Majeure Event shall be reflected in the Purchase Order by way of a written amendment in accordance with Section 23. In all cases, Supplier shall not be entitled to payment for costs related to such adjustments.
Following a breach by Supplier of any of its obligations under the Purchase Order, including a breach of an obligation set out below, Client may, at its option and without prejudice to its other rights and remedies under the Purchase Order or at law, take the following actions and exercise the following remedies:
Supplier shall hold harmless and indemnify Client from and against any and all damages Client may suffer based upon or resulting from the non-compliance by Supplier with any laws in connection with the performance of any of its obligations under the Purchase Order. Notwithstanding any dispute between the parties, Supplier has, at all times, the positive obligation to perform the Services and/or deliver the Goods without delay.
Client may, at any time and at its entire discretion, by notice in writing, request that Supplier suspends the delivery of Goods and/or the performance of Services, which suspension shall have immediate effect. Client may likewise, at any time and at its entire discretion, by notice in writing, request that Supplier resumes the delivery of Goods and/or the performance of Services following a suspension, which resumption shall have immediate effect.
Client reserves the right to withdraw, at its entire discretion, the Purchase Order, in whole or in part, within 10 days after issuance. Supplier acknowledges and agrees that any such withdrawal will not give rise to any liability on the part of Client.
Client may terminate the Purchase Order, at its entire discretion, upon written notice to Supplier indicating the effective date of termination. In such event, Supplier shall be entitled to (i) the portion of the Price applicable to the Goods delivered and/or Services performed as of the effective date of termination; and (ii) the actual cost incurred as of the effective date of termination for work in progress, taking into consideration the agreed upon lead time. Client shall not be liable for any other costs, charges or compensation on account of such termination, unless agreed upon in writing.
Supplier shall not be paid for any Services which do not meet the requirements of the Purchase Order.
Client may also terminate the Purchase Order upon the occurrence of any of the following events: (a) Supplier becomes insolvent; (b) insolvency or similar proceedings are commenced against Supplier; (c) Supplier is in breach or default of any provision of the Purchase Order, which breach or default is not cured within the prescribed period in a written default notice from Client; or (d) Client has reasonable grounds to believe that Supplier’s performance (including timely performance) is in jeopardy and Supplier fails to provide adequate assurance within 5 days of receiving a written notice to that effect.
In all cases of termination of the Purchase Order, Client may, in addition to any other rights and remedies available under the Purchase Order and at law, procure goods and/or services similar to those contemplated under the Contract from a third party provider. In such event, Supplier shall diligently cooperate with Client for purposes of transition to another supplier and be liable for any costs (including price differential) incurred by Client in connection with such transition.
In all cases of termination of the Purchase Order, Client shall be entitled to take possession of the Goods and Deliverables completed and in progress as of the date of termination.
The Purchase Order is governed by the laws of the Province of Ontario and the laws of Canada applicable therein, excluding its conflict of laws. Client and Supplier hereby irrevocably agree to submit any action, suit or proceeding arising out of, or connected with, the Purchase Order to the appropriate courts within the district of Toronto, Province of Ontario, Canada, which shall have the exclusive jurisdiction to adjudicate any such action, suit or proceeding. Client and Supplier expressly disclaim and exclude the application of the United Nations Convention on Contracts for International Sale of Goods to the Purchase Order.
Any communication required or permitted to be given in connection with the Purchase Order must be given in writing and will be given by personal delivery or sent by prepaid registered mail or by electronic communication, in each case addressed to the recipient as indicated in the Purchase Order or to such other address or electronic address designated by notice in writing to the other party. Any communication given by personal delivery is conclusively deemed to have been given on the day of actual delivery and, if given by registered mail, on the tenth business day following the mailing thereof and, if given by electronic communication, on the day of receipt thereof, provided it is given during the normal business hours of the recipient, or the next business day following the date of receipt if given after such hours.
Supplier shall not assign or subcontract the Purchase Order or any interest herein, including any performance or any amount that may be due hereunder, without Client’s prior written consent. The Purchase Order may set forth the list of all Subcontractors or categories of Subcontractors that Supplier may use to provide the Goods and/or perform the Services without Client’s prior written consent.
Supplier shall ensure that each agreement to subcontract all or any part of its obligations set out in the Purchase Order is in writing and contains, at a minimum, those provisions required for Supplier to perform obligations and assume its responsibilities under the Purchase Order. Any such assignment or subcontract of any obligation of Supplier shall not waive any obligation, responsibility or liability of Supplier with respect to the provision of the Goods and/or the performance of the Services under the Purchase Order.
Client may assign, sell or transfer (in whole or in part) any of its rights and obligations under the Purchase Order without Supplier’s consent, provided it gives Supplier prior written notice.
The Purchase Order constitutes the entire agreement relating to the subject matter hereof and supersedes all prior and contemporaneous understandings or statements between the parties. The general conditions contained herein have priority over any conflicting terms contained in any document attached to the Purchase Order.
The Purchase Order shall not be amended except by a written agreement that: (a) is signed by the authorized signing officers of each of the parties; and (b) expressly states that it is intended to amend the Purchase Order.
Either party’s waiver of any breach, or failure to enforce any provisions of the Purchase Order shall not in any way affect, limit or waive such party’s right thereafter to enforce and compel strict compliance with every term and condition hereof.