Volant’s Supplier Terms and Conditions
These Supplier Terms & Conditions (“Terms & Conditions”)
shall apply to all purchase orders issued by Volant Products Inc., its
affiliates and subsidiaries (“Volant”) to the supplier of products and
services as indicated on the Purchase Order.
TERM OF AGREEMENT
The purchase order, together with these terms & conditions, and any
attachments or exhibits, whether physically attached or incorporated by
reference (collectively, the “Purchase Order”) constitutes the entire
and exclusive agreement between Volant and the Supplier identified in
the Purchase Order. Volant’s submission of the Purchase Order is
conditioned on Supplier’s agreement that any terms different from or in addition
to the terms of the Purchase Order, whether communicated orally or
contained in any Purchase Order confirmation, invoice, acknowledgement,
release, acceptance or other written correspondence, irrespective of
the timing, shall not form a part of the Purchase Order, even if
Supplier purports to condition its acceptance of the Purchase Order on
Volant’s agreement to such different or additional terms.
Notwithstanding the foregoing, if a master agreement covering
procurement of the work described in the Purchase Order exists between
Supplier and Volant, the terms of such master agreement shall prevail
over any inconsistent terms herein.
PRICE AND PAYMENT
Volant shall issue the Purchase Order to Supplier, usually after
requesting a quote from the Supplier. Purchase Orders shall be inclusive
of taxes, transportation costs, surcharges and any other applicable
additional costs, unless otherwise agreed. Supplier will have twenty
four (24) hours to accept or reject the Purchase Order by written or
verbal acknowledgement to Volant. If no acknowledgement is received
within this time period, the Purchase Order is deemed accepted and may
not be varied unless mutually agreed upon in writing by both parties.
Volant may cancel any Purchase Order prior to acceptance or deemed
acceptance without being liable for any payment obligations.
Supplier may issue an invoice following delivery of the Products or
Services or as otherwise agreed by the parties. Volant pays all Supplier
invoices between 45 and 60 days post invoice date. Cheques are issued
twice per month, on the 15th and 30th of each month.
Any taxes payable shall be separately identified and stated in all
invoices prepared by Supplier. Supplier shall cooperate with Volant in
obtaining any available remission or refund of duty paid by Supplier or
its subcontractors with respect to any portion of the Purchase Order,
and Supplier shall require similar cooperation from its subcontractors.
All amounts received in such remission shall be held in trust for Volant
and shall be forwarded to Volant forthwith.
Volant shall have the right to make changes to the Purchase Order at
any time by written notice to Supplier. If the change triggers an
increase or decrease in costs, Supplier shall notify Volant in writing
within twenty-four (24) hours of receiving the change. The Parties will
mutually agree on any adjustment to price prior to implementing the
change. Failure by Supplier to request an adjustment within the time
period will constitute a waiver by Supplier to make a claim for
adjustment, and will be deemed acceptance to perform the Purchase Order
Change under the original price and conditions.
“Products” means tangible goods specified in the Purchase Order to be
delivered to Volant on the scheduled delivery date. “Services” means any
work or duties to be performed as specified in the Purchase Order.
Volant may supply products, services, or general materials (the
“Materials”) to Supplier to be used in Supplier’s provision of the
Products or Services to Volant. Supplier warrants that it will use these
Materials for the sole purpose of the Purchase Order, that it will not
reverse engineer, reproduce or otherwise alter the Materials except in
accordance with the Purchase Order and it will apply such a degree of
care and attention so as to prevent loss or damage to the Materials.
Supplier shall be liable to Volant for the full replacement value of any
lost or damaged Materials forthwith.
Time is of the essence in Supplier’s performance of its obligations
under the Purchase Order. Supplier shall deliver Products on the
requested delivery date. Early delivery may result in products being
sent back to Supplier to be held until the delivery date. Supplier will
immediately notify Volant if Supplier’s timely performance is delayed or
is likely to be delayed, prior to the delivery date. In the event of
delay, Volant shall discount the total purchase price by one percent
(1%) per day. If Supplier delivers Products after the delivery date,
Volant may reject the work.
Supplier will preserve, pack, package and handle the Products so as to
protect them from loss or damage and in a manner that is in accordance
with applicable regulations and laws, acceptable to common carriers,
adequate for storage and protection against weather, and is appropriate
to ensure safe arrival of the Products at the named destination. Unless
otherwise specified, Supplier shall mark all containers with necessary
lifting, handling, and shipping information, and any other information
identified by Volant. Supplier shall include with each delivery of
Products the necessary technical documentation. Volant may select the
means of transport and carrier for shipment of the Products. All
deliveries should be made within normal business hours on the scheduled
delivery date at the place indicated on the Purchase Order unless
otherwise agreed. Partial deliveries shall not be accepted without
Volant’s prior authorization.
Supplier shall make a full inspection of the Products prior to
shipment; and the same shall be subject to Volant’s inspection and
approval prior to acceptance. If in Volant’s opinion, the Products fail
to conform to agreed specifications or are otherwise defective, Volant
may reject them and require Supplier to promptly replace or rectify the
non-conforming or defective products at Supplier’s expense and risk.
Supplier shall (a) not advertise or publish, in any manner, that Volant
has placed the Purchase Order, (b) maintain as confidential and
proprietary all information provided by Volant pursuant to the Purchase
Order (“Volant’s Information”) and not divulge or disclose any of
Volant’s Information to third parties without the prior written consent
of Volant, (c) not use any of Volant’s Information to the detriment of
Volant or the benefit of third parties, and (d) return all of Volant’s
Information as directed by Volant upon termination or expiration of the
Purchase Order or as otherwise requested by Volant.
If Volant furnishes specifications, requirements, designs, drawings and
the like (“Specifications”) to Supplier for the manufacture of Products
or provision of Services, Volant is and remains the sole owner of all
Specifications, and all intellectual property rights therein. Volant is
and remains, or shall be, the sole and exclusive owner of all
improvements in, modifications to, derivative works of, all
Specifications, and all intellectual property rights therein, which are
made, developed, conceived or reduced to practice solely or jointly by
Supplier. Supplier hereby grants, assigns, and transfers to Volant all
rights (whether present or future), title, and interest in and to said
improvements in, modifications to, and derivative works of, all
Specifications, and intellectual property rights therein, and shall
cause its employees, consultants, contractors and/or agents (and their
employees) to grant, assign, and transfer to Supplier or Volant all
their rights, title and interest in the foregoing.
The Products and/or Services (i) shall conform to Supplier’s
representations, to the descriptions, samples and models furnished by
Supplier, to industry standards and practices for similar Products
and/or Services and to all of Volant’s specifications, (ii) are new and
of good material and workmanship and free from defects in design, (iii)
are and will remain free from defects in material, workmanship and
design for twelve (12) months from the date of delivery to Volant; (iv)
are fit for any ordinary or known particular purpose, and (v) are
manufactured, procured and produced in compliance with all applicable
laws and regulations. Supplier also warrants it has and shall transfer
good and marketable title to the Products to Volant free and clear of
any liens, adverse claims or other encumbrances. If any Products and/or
Services are found to be defective during the warranty period, Volant
may return the same to Supplier at Supplier’s expense and risk and
Supplier shall promptly repair or replace the defective Products and/or
Services, or at Volant’s election, refund or credit Volant.
If Supplier fails to promptly initiate and complete repair or
replacement of Products or Services after Volant has given notice of
defect, imperfection, fault or breach of warranty, Volant may perform or
have a third party perform the necessary repair or replacement and
Supplier shall pay to Volant the full costs of this work, plus any
additional costs, loss or damages incurred by Volant as a result.
Supplier agrees that the foregoing warranties benefit Volant and its
customers respectively. The warranties and remedies set out are in
addition to those specified in the respective customer contracts and
will continue into force after acceptance of any Products or Services by
In this Section 12 “Claim” means every claim, demand, cause of action,
judgment, proceeding, damage, liability, loss or expense of any kind
including litigation costs and reasonable legal fees. Supplier shall be
liable for and shall defend, release, indemnify and hold harmless Volant
and its affiliates and their respective agents, representatives,
consultants, directors, officers, assigns, and employees (the “Volant
Group”) from and against all Claims arising out of death, illness or
injury, property loss or damage, or any other loss, damage or cost, as a
result of or in connection with the negligent acts or omissions of
Supplier, its subcontractors, and all their respective employees, agents
and representatives, or breach of Supplier’s obligations under the
Supplier shall be liable for and shall defend, release, indemnify and
hold harmless the Volant Group from and against all claims arising out
of any actual or alleged infringement of any patent, copyright,
trademark or any other intellectual property or proprietary right, or
any litigation based thereon, with respect to any Product or Services
(or part thereof), except to the extent that such infringement results
solely from the manufacture of the Products or provision of Services
pursuant to the detailed proprietary designs furnished by Volant.
Notwithstanding any other provision herein, neither party shall be
liable to the other for any punitive, indirect, or consequential damages
sustained by the other (or its affiliates) in connection with the
performance of the Purchase Order, including without limitation,
business interruptions, loss of profits, loss of revenues, loss of use
of assets and loss of contracts.
Volant may terminate the Purchase Order in whole or in part for cause
if Supplier: (i) fails to comply with the terms of the Purchase Order;
(ii) becomes insolvent, makes an assignment for the benefit of
creditors, is not able to pay its debts generally as they come due,
institutes or is the subject of any proceedings for relief from debtors,
insolvency, receivership, bankruptcy, winding-up or dissolution,
appoints a receiver, trustee, monitor or liquidator over any assets of
Supplier or ceases to carry on business.
Volant may terminate the Purchase Order in whole or in part for
convenience at any time upon written notice to the Supplier. The notice
shall specify to what extent the Purchase Order is terminated and what
date termination is effective. Upon receipt of this notice, Supplier
will stop performance of the Purchase Order as required. Volant shall
pay to Supplier a mutually agreed termination charge reflecting any work
actually performed prior to termination. In no event shall Volant be
liable for any consequential damages that may be sustained by Supplier
as a result. Notwithstanding the foregoing, Volant may cancel the
Purchase Order at any time prior to acceptance of the Purchase Order by
the Supplier per Article 2 at no cost.
ASSIGNMENT AND SUBCONTRACTING
Neither party shall, without prior written consent, have the right to
assign its rights and obligations under the Purchase Order. Supplier may
not subcontract, in whole or in part, any of its rights or obligations
under the Purchase Order without Volant’s prior written consent.
GOVERNING LAW The Purchase Order will be governed by and construed in accordance with the laws of the Province of Alberta.
Supplier is an independent contractor and the Purchase Order shall not
be construed as creating a joint venture, partnership or similar between
the parties. All persons engaged by Supplier or Supplier’s
subcontractors in connection with the Purchase Order shall be deemed to
be Supplier’s agents or employees and not Volant’s agents or employees.
Volant shall have the right to inspect and audit at all reasonable
times Supplier’s records pertaining to the Products and Services, and
Supplier’s compliance with the Purchase Order. Such right shall continue
for a period of ten (10) years following completion or termination of
the Purchase Order. Supplier shall be obligated to retain such accounts
and records for at least ten (10) years following completion or
termination of the Purchase Order.
Supplier represents and warrants that it will comply with all
applicable local and national laws and regulations pertaining to its
performance of its obligations under the Purchase Order. In particular
and without limitation, Supplier shall not act in any fashion or take
any action that will render Volant liable for a violation of any
applicable anti-bribery legislation (including without limitation, the
Corruption of Foreign Public Officials Act (Canada), U.S. Foreign
Corrupt Practices Act and the UK Bribery Act 2010), which prohibits the
offering, giving or promising to offer or give, or receiving, directly
or indirectly, money or anything of value to any third party to assist
in retaining or obtaining business or in performing the work.
Any notice to be given under the Purchase Order will be in writing and
addressed to the party at the address stated on the front of the
Purchase Order. Notices will be deemed given and effective: (i) if
personally delivered, upon delivery, (ii) if sent by an overnight
service with tracking capabilities, upon receipt; (iii) if sent by fax
or electronic mail, at such time as the party which sent the notice
receives confirmation of receipt by the applicable method of
transmittal; or (iv) if sent by certified or registered mail, within
five (5) days of deposit in the mail.
If any court of competent jurisdiction holds that any provision of the
Purchase Order is illegal, invalid, or unenforceable, the legality,
validity, and enforceability of the remaining provisions of the Purchase
Order will not be affected or impaired, and all remaining terms of the
Purchase Order remain in full force and effect, provided that this
provision shall not be applied to defeat the intent of the parties.
A party’s election not to insist on strict performance of any
requirement of the Purchase Order will not operate or be construed to
waive any future omission or breach, or any other provision of the