Supplier Buying Agreement (SBA)

Transcription

1 Supplier Buying Agreement (SBA) Supplier Name: Provinces: All AB BC MB ON NB NL NS SK QC Supplier Type: Subcontractor Material/Products Rental Co. Wide Services Supplier Category: Electrical High Voltage Datacom Fasteners/Building Mat l Plumbing HVAC Refrigeration Motor Shop GST #: Payment Terms: % Days Freight Terms: Prepaid/Destination Collect Prepaid & Add/Destination Returnable Charge: Not Applicable Select: Reel/Cylinder/Pallet Price Change Notice: days This Supplier Buying Agreement is subject to the Terms and Conditions attached hereto, which have been provided to the Supplier and will become part of this Supplier Buying Agreement. Table of Contents, Supplementary Documents: Applicable/Not 1. Insurance Certificate (PLPD) 2. Sub-Contractor Responsibilities 3. WSIB/WCB (for each province if applicable for this contract) 4. Nondisclosure Agreement 5. Stipulated Price Subcontract 6. Volume Rebate 7. Summary of Value Added Services 8. Pricing Schedule 9. General Terms and Conditions Ainsworth Inc. Requested and Reviewed by: Signature: Name: Title: Ainsworth Inc. Approved By: Signature: Alysia Carter Vice President and Chief Financial Officer I have the authority to bind the Corporation Supplier Name: Signature: Name: Title: I have the authority to bind the Corporation

2 Contact Form Supplier Name: Corporate Contact Name: Title: Street Address: City: Province: Postal Code: Address: Phone: Fax: Account Manager Name: Title: Street Address: City: Province: Postal Code: Address: Phone: Fax: Regional Contact 1 Province/ Territory Name: Title: Street Address: City: Province: Postal Code: Address: Phone: Fax: Regional Contact 2 Province/ Territory Name: Title: Street Address: City: Province: Postal Code: Address: Phone: Fax: Regional Contact 3 Province/ Territory Name: Title: Street Address: City: Province: Postal Code: Address: Phone: Fax: Initials

3 Volume Rebate Agreement Volume Rebate Agreement # Supplier Name: 20 Purchase Volume: $ 20 Projected Purchase Volume: $ % Rebate: Tier 1 % From $ to $ Tier 2 % From $ to $ Tier 3 % From $ to $ Tier 4 % From $ to $ Tier 5 % From $ to $ Tier 6 % From $ to $ Notes: A volume incentive rebate shall be paid to Ainsworth on the cumulative purchases of all current and future Ainsworth operating locations including subsidiaries Canada wide, for a 12-month period. Rebate paid quarterly by cheque or credit note by the 15 th of each following month. The final payment on Feb 15, of the following calendar year will be adjusted to reflect the qualified rebate levels for full year net purchases. All rebate levels are back to $1.00. Initials

4 Value Added Services Supplier Name: Delivery to the exact location Quality Assurance Program in place Specify Logistical support for non-stocked items Material labeling Provide prior day sales reports to Buyer Provide standard pricing for top unit moving items Develop and support Summary Billing Comments: Consistent drivers for a job site After hours support Material verification in warehouse Provide dedicated warehouse space No restocking fee for return of stock product in sellable condition Secure inventory ahead of time Partner in system integration (JDE, EDI) Delivery at a consistent time Same-day delivery correction Material kitting Reduce packaging prior to arrival at job site Provide materials trailer on job site as needed E-commerce, including online ordering Organize new product training sessions After/before hours delivery GPS tracking of shipments Pre-fabrication assistance Provide inventory on consignment basis Participate in job site visits Ensure all invoices have valid Ainsworth PO# Ensure Account Manager is key point of contact Initials

5 Pricing Schedule Category Name Price Review Method documents for review or Key Commodities Definition Comments: Price Review Frequency Initials

6 General Terms and Conditions 1. The Parties and the Entire Agreement 1.1 This Supplier Buying Agreement, an agreement between Ainsworth Inc. ( AI or Buyer ) and Supplier (as defined and designated in the Summary of Business Terms) consisting of purchase order (including any specifications, drawings, instructions, designs and data, collectively, the Specifications ) and all schedules furnished to the Supplier in connection with such purchase order ( PO or Order ), and any and all Supplementary Documents as defined in the Summary of Business Terms. The documents forming the SBA shall form the entire agreement between the parties and no representations, promises, orders or other communications, whether verbal or otherwise, shall be considered part of this Agreement. 1.2 Every written Order submitted by AI and accepted by the Supplier shall be binding on the parties hereto and shall form part of, and is subject to, the terms of this SBA. 1.3 The term Supplier shall mean the supplier designated in the Summary of Business Terms. 2. Acceptance and Rejection of PO s 2.1. Supplier shall be deemed to have accepted the terms and conditions contained in a PO when the Supplier delivers to the Buyer a written acknowledgement accepting the PO or all or part of the goods or services ordered. For greater certainty, any terms or conditions that are different from or are in addition to those set forth in a PO delivered to the Supplier or in the SBA, shall not be binding on the Buyer unless the Buyer accepts such terms in writing and delivers same to the Supplier Supplier will accept all PO s unless it has delivered ninety (90) days prior written notice to the Buyer that it will not accept PO s after a specified date Supplier shall manufacture or supply goods or services purchased in accordance with the Buyer s Specifications. The Supplier shall not make any substitutions or changes to the goods or services provided under this Agreement without the Buyer s prior written consent Supplier shall inform Buyer in writing about any nonconforming products or services prior to their shipping and delivery. Buyer shall have the right to accept or refuse acceptance of nonconforming products or services and to request remediation steps to bring the products and services to the specifications outlined in the original PO. 3. Shipping Goods purchased shall be delivered to the Buyer at the delivery point specified in the PO. All transportation and handling charges shall be prepaid to the job site by the Supplier unless otherwise specified in the PO. The Supplier shall ensure that: (i) all goods are marked and labeled as required in the PO and in accordance with all applicable laws and standards; (ii) all goods are properly packed for shipment so as to prevent any damage thereto during shipment. The Supplier shall ensure that the packing slips for the goods purchased correspond with the part numbers and descriptions indicated in the PO. All goods manufactured or originating outside of Canada shall be accompanied by all necessary documentation including Certificate of Origin or Blanket Certificate of Origin, where applicable. The Supplier shall, at its expense, insure the goods being shipped at not less than the full replacement cost thereof. 4. Inspection Goods purchased are subject to the Buyer s inspection on arrival at the destination specified in the PO. Services are subject to the Buyer s inspection upon completion. Acceptance of all or part of the purchased goods or services, as identified in the Order, shall not be deemed to be a waiver of the Buyer s right to cancel, reject or return all or any part of the purchased goods or services Initials

7 because of failure to conform to the Specifications or by reason of defects, latent or patent, damaged goods, or breach of any representation or warranty (express, implied or statutory), or make any claim for damages. Such rights shall be in addition to any other remedies provided by law. Goods rejected because of reasons set forth herein will be returned to the Supplier at the Supplier s expense and risk. The Supplier shall forthwith refund to the Buyer any payments which the Supplier may have received from the Buyer with respect to such goods or services not accepted and the Supplier shall reimburse the Buyer forthwith for all original shipping expenses paid by the Buyer and for transportation and handling charges for delivery of rejected goods or services. All expenses for unloading, inspection and reloading of returned goods shall be the obligation of the Supplier and the Buyer shall have the right to set off against the Supplier in respect of such amounts. At the option of the Buyer, the Supplier shall replace any rejected goods or provide replacement services. Payment for goods or services shall not be deemed an acceptance thereof Supplier shall clearly mention the title, number, and issue of any quality assurance program standard to be applied to products or services delivered, if the products or services require such quality assurance program as identified by Buyer. 5. Termination, Cancellation and Returns 5.1. Should the Supplier fail to comply with any of the terms or conditions of this Agreement, AI may cancel the PO and/or reject and return Products and Services received, at AI s discretion and at Supplier s expense. Any failure to immediately discover the non-compliance of the Products and Services shipped under a PO shall not preclude AI from later exercising its rights under this Section, provided that AI gives prompt notice after such failure is reasonably discovered by AI AI shall only be responsible to pay Supplier for PO s accepted through the date of termination No provision of the Agreement shall be deemed waived unless such waiver is in writing and signed by the waiving Party. The failure of a Party to exercise any of its rights, remedies, or options under this SBA, or the failure of a Party to insist upon another Party s compliance with any provision under this SBA, shall not constitute a waiver of any Party s right to demand compliance. Supplier hereby waives use of the Statute of Frauds as a defense to the SBA or any PO accepted pursuant to this SBA Bankruptcy. If the Supplier shall become bankrupt or insolvent or be subject to any winding-up or bankruptcy proceeding or commences proceedings under any creditors relief legislation or makes or files any notice of intent to file a proposal or goes into liquidation, voluntary or involuntary, or makes a general assignment for the benefit of its creditors or if a liquidator, receiver and manager or trustee in bankruptcy be appointed to or of the Supplier s assets, with or without the Supplier s consent, or if the Supplier ceases to conduct operations in the normal course of business, then the Buyer shall be entitled to cancel any unfilled part of this PO without any liability whatsoever and the Buyer shall be indemnified by the Supplier for any and all damages suffered by the Buyer as a consequence of the cancellation of any PO This Agreement may be terminated by either party with 90 (ninety) days written notice. 6. Title and Risk of Loss 6.1 Title to goods purchased shall pass to the Buyer upon delivery of goods to the Buyer and the Buyer s acceptance thereof. 6.2 PO s will be designated Prepaid/Destination (Freight, Insurance, Duty paid) unless expressly agreed upon in writing by an authorized employee of AI. Notwithstanding the freight terms used, no liability will be incurred by AI and risk of loss shall not pass to AI until legal title passes upon carton or item-level receipt into AI s inventory management system and acceptance of the Products and Services in good condition by AI at AI s designated final destination.

8 7. Pricing and Invoicing 7.1 All pricing details shall be contained in the Pricing Schedule. Pricing for core day-to-day items shall be set up and maintained at all Supplier s branches in sales order system and applied to all AI purchases. 7.2 Pricing shall be reviewed at the predetermined time intervals as stipulated in the Price Schedule. 7.3 Manufacturers substantiated price increases and industry wide commodity fluctuations, as documented in the Pricing Schedule, will be the grounds for price adjustments. 7.4 Supplier may not increase an established price without prior written approval from AI. 7.5 Any price adjustments shall be reflected in an amended Pricing Schedule agreed to and executed by the parties hereto to become effective on the date stipulated in such amended Price Schedule and such amended Pricing Schedule shall thereafter be considered the Pricing Schedule hereunder. 7.6 The Supplier represents that the prices charged to AI are the lowest prices charged by the Supplier to buyers of a class similar to the Buyer under conditions similar to those specified on any PO and that such prices comply with applicable government laws and regulations in effect at the time of quotation, sale and delivery. 7.7 Any discounts allowed by the Supplier shall apply when invoices are paid. All invoices shall carry current mailing dates and correct PO number. Supplier shall issue the invoices for any Goods and Services forthwith upon the delivery of such Goods or the completion of such Services. If complete and accurate invoices are not received by the Buyer within five (5) calendar days from the date of the invoice, there shall be a per diem adjustment to payment deadlines and discount periods to accommodate for the delay in receipt of correct invoice. 7.8 The prices for the purchased goods or services include all customs or invoice duties unless otherwise noted on the Pricing Schedule. 7.9 All invoices issued by the Supplier shall indicate as separate line items each of the applicable taxes. The Supplier s invoice shall indicate the Supplier s goods and services tax registration number failing which the Buyer shall not be required to pay such invoice until a correct invoice is received. Wherever any legislation or regulation permits the recovery of all or any portion of the duties or taxes charged by the Supplier to the Buyer, the Supplier shall either recover and remit such duties and taxes to the Buyer, or the Supplier shall fully disclose to the Buyer all relevant information and the Supplier shall execute all necessary documents to enable the Buyer to complete such recovery AI will review invoice pricing based on reports and communicate variances to quoted pricing. The Supplier will arrange for credits associated with these variances within 5 business days from the time the variances are communicated in writing. 8 Value-added Services 8.1 In the event Supplier provides value-added services to AI, Supplier agrees that the value-added services shall be performed in a good and workmanlike manner with the skill and care to comply with all applicable Laws and rules of AI. 8.2 Supplier, its agents and subcontractors shall maintain Worker s Compensation Insurance for all of their respective employees to the fullest extent required by the Laws of the provinces in which such services are being performed. 9 Work on the Buyer s or its Customer s Premises (Sub-contractor activities). If the Supplier s work under any PO involves operations by the Supplier on the premises of the Buyer or any of its customers, the Supplier shall comply with all applicable laws including those relating to worker safety and shall take all necessary precautions to prevent the occurrence of any injury or damage to person or property during the progress of such work and, except to the extent

9 that any such injury or damage is due solely and directly to the Buyer s or its customer s negligence, as the case may be, shall indemnify the Buyer, its officers, directors, employees and agents (past, present and future) against all claims, damages, liability, costs and expenses of any kind or nature which the Buyer may suffer or incur as a result of or arising out of any act or omission of the Supplier, its agents, employees, or subcontractors, and the Supplier shall prior to entry to the property of the Buyer or its customers obtain and maintain Workmen s Compensation insurance, Employer s Liability insurance, Commercial General Liability insurance (including Products, Completed Operations and Broad Form Contractual Liability, Bodily Injury and Property Damage), and Automobile Liability insurance in such amounts of coverage as will protect the Buyer, its officers, directors, employees and agents (past, present and future) from said risks and any claims arising therefrom. Upon request, the Supplier shall provide the Buyer with evidence of such coverage, satisfactory to the Buyer. 10. Insurance (product and material suppliers). Product and material suppliers shall maintain Commercial General Liability Insurance on an occurrence basis with limits of not less than $2,000,000 CAD. AI, its parent, affiliates and subsidiaries shall be named as an additional insured. Supplier s insurance must be the primary policy with respect to any loss. Supplier, its agents and subcontractors shall maintain Worker s Compensation Insurance for all of its employees providing any services to AI to the fullest extent required by the Laws of the provinces in which such services are being performed. Supplier further agrees to forward a copy of this SBA to its insurer. Supplier will have its insurer provide AI with a current Certificate of Insurance evidencing the required coverage, as well as renewal certificates at least thirty (30) days prior to the expiration of coverage. Supplier further agrees that upon notice of a claim against AI that Supplier will immediately and without delay notify all insurance carriers which issued policies to Supplier. Thereafter, Supplier agrees to keep AI fully informed of all activity, including but not limited to providing AI with all correspondence, and action taken with regard to any claim by any insurance carrier. Additionally, Supplier and its insurer shall provide AI thirty (30) days prior written notice of non-renewal, cancellation or other change in coverage which may impair or otherwise affect AI s rights thereunder. Supplier s obligations under this section shall in no way affect the indemnification, remedy or warranty provisions set forth in this SBA. 11. Warranties and Guarantees 11.1 Supplier represents and warrants that: (a) Supplier is financially solvent and has the ability to perform its obligations hereunder; and (b) the person executing this document is a duly authorized officer or representative of Supplier with the authority to enter into and bind Supplier to the terms and conditions of this SBA Supplier represents and warrants that all Products and Services will be fit for its intended purpose and free from any and all defects. Supplier represents and warrants that: (a) the Products and Services do not infringe on the intellectual property rights of any third party; (b) all Products and Services are sold free and clear of all liens and encumbrances; and (c) Supplier owns, licenses and/or has the right to grant and extend any licenses provided for AI s resell and/or installation of the Products and Services Supplier represents and warrants that the design, manufacture and packaging (including all weights, measures, signs, legends, descriptions, label warnings and disclaimers), pricing and other conditions of sale of the Products and Services complies with all applicable federal, provincial, and local laws, codes, ordinances, rules, regulations and requirements of the country of origin, the country of transit, or the country of sale (collectively the Laws ). Supplier shall promptly notify AI

10 in writing of all warnings, disclaimers or and other similar notices required by any Laws to be posted with respect to the Products and Services. 12. Indemnification and Product Liability 12.1The Supplier shall indemnify, save and hold harmless the Buyer and its officers, directors, employees and agents (past, present and future) from and against any and all liability, losses, costs, damages, expenses and claims of any nature or kind whatsoever, and any incidental, indirect, or consequential damages including loss of use, profit or production, increased costs of operation or damage to other materials, arising directly or indirectly out of injury to, or death of, any person whatsoever or damage to property of any kind by whomsoever owned, caused in whole or in part by, or related to: (i) the acts or omissions by the Supplier, its agent(s) or employee(s) in connection with the goods or services purchased under this SBA or resulting from (ii) any breach of the terms or conditions of this Agreement; (iii) any breach of intellectual property. Such indemnity shall be in addition to any other remedies provided by law and shall survive acceptance of and payment for any of the goods or services furnished by the Supplier. 13. Disputes 13.1 Mediation. Any dispute arising out of, relating to or concerning this SBA shall, as a condition precedent to any arbitration or court proceeding, be mediated by the parties. The requesting party shall inform the other party of the grounds of the dispute. The parties shall mutually agree upon a mediator and shall schedule and conduct the mediation at a mutually convenient time and place. Each party shall bear its own costs and expenses associated with such mediation, except that the parties agree to split equally the costs and expenses of the mediator and the conduct of the mediation itself Arbitration. Any dispute which is not resolved by mediation within a period of forty-five (45) days and which arises out of, relates to or concerns this SBA may, at the sole option of AI, be resolved by arbitration, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Each party shall bear its own costs, fees and expenses associated with any arbitration, except that the parties agree to split equally the costs and expenses of the arbitrator or panel and the conduct of the arbitration itself Costs associated with dealing with consequential damages to AI s customers, incurred due to Supplier negligence shall be covered by the Supplier. 14. Intellectual Property 14.1 Supplier grants to AI the non-exclusive, worldwide, royalty-free right and license to use and display any product information, product warranty information, advertising, images and/or intellectual property Supplier furnishes to AI during the term of this Agreement ( Supplier Content ). Supplier is responsible for ensuring that all Supplier Content is accurate, truthful and complete and does not infringe upon a third party s intellectual property rights Supplier acknowledges and agrees that all patents, designs, trade names, trademarks, copyrights, trade secrets, logos, or work product owned or created by AI are and shall remain the sole property of AI ( AI IP ). Supplier will provide requested specimens, samples, diagrams and signed documents to assist in perfecting AI s IP rights. Nothing contained herein shall limit the defense and indemnification obligations of Supplier. 15. Miscellaneous Provisions 15.1 Written Changes. There shall be no amendments, changes or modifications to the SBA unless agreed to in writing and signed by an authorized agent of each party. For purposes of AI, only employees with the title of Vice President are authorized agents for amendments, with the exception of PO s which may be amended by the authorized representative mentioned on the face of the PO.

11 15.2 Recall. In the event the Consumer Product Safety Commission or other federal, provincial or local agency (the Commission ) issues an order pursuant to any consumer protection law (hereinafter referred to as the Safety Laws ) requiring either AI or Supplier to provide a safety notice, recall, replace, repair or make refunds with respect to all or part of any Products and Services, or where both parties agree or where either party determines in its reasonable discretion that a recall is warranted prior to or without regard to any proceeding or determination by the Commission (a Recall ), AI and Supplier shall work together to do so at Supplier s expense. Supplier shall assume all costs and expenses of such Recall If any part or parts of this SBA are held to be invalid, the remaining parts of this SBA will continue to be valid and enforceable Upon termination or expiration of this SBA, all provisions contained herein shall continue in effect as to disputed matters connected with this SBA until fully resolved as shall all provisions contained herein that are either expressly, or by their nature, meant to survive termination or expiration of this SBA In cases when a Quality Assurance program has been specified for any of the products purchased by AI, Supplier shall provide copies of current Quality Assurance certificates for each product or service category purchased by the Buyer Buyer and/or Buyer s customer shall be given access to visit Supplier s warehouses for evaluations, surveillance, and audit of buildings or premises whether they have reason to believe the customer s work is being performed to ensure compliance with Quality Assurance Programs, provided such programs have been requested by Buyer at the time of contract set up Buyer shall be given access to audit select records that pertain to materials and services provided to AI Supplier shall not assign any PO or any of its rights or obligations hereunder without the prior written consent of the Buyer, which consent may be unreasonably withheld. The Supplier shall not subcontract the work to be performed under this PO without the prior written consent of the Buyer, which consent may be unreasonably withheld, but the Supplier may purchase goods as it normally purchases to perform the work This contract shall enure to the benefit of and be binding upon the Buyer and the Supplier, and their successors and permitted assigns This contract will be governed, construed, applied and interpreted in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein and the parties hereto attorn to the exclusive jurisdiction of the courts of the Province of Ontario The Buyer and the Supplier confirm that it is their wish that this contract as well as all other related documents, including notices, have been and shall be drawn in English only Notices and other communications sent by each party to the other will be deemed properly given if they are sent by fax, courier delivery, or registered mail to the other party at its address as set forth below, and to the attention of: Alysia Carter VP, CFO Ainsworth Inc. 131 Bermondsey Rd. Toronto, ON, M4A 1X4 Fax:

12 Supplier Contact Information: