CONTRACT STANDARD - Ontario Power Generation A-6… · model, inventor’s ... submissions required...
Transcript of CONTRACT STANDARD - Ontario Power Generation A-6… · model, inventor’s ... submissions required...
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CONTRACT
STANDARD Class Number Date
A 6 2013
Ontario Power Generation Inc. (OPG)
STANDARD COMMERCIAL TERMS
FOR ENGINEERED EQUIPMENT
SPARE PARTS
June 2013
CONTENTS
1. Definition of Terms Definition of Terms
2. Contract Documents and Order of Precedence
3. Communications
4. Language and Units of Measure
5. Substitutions
6. Pricing Taxes
7. Taxes
8. Duty
9. Importer of Record
10. NAFTA
11. Terms of Payment
12. Assignment
13. Quality Program
14. Electrical Safety Approval
15. Unavoidable Loss, Damage or Delay
16. Shipping and Packaging Instructions
17. Hazardous Materials
18. Overshipments
19. Delivery
20. Correction of Defects
21. Contract Cancellation
22. Intellectual Property
23. Laws, Regulations and Subcontractors
24. Governing Laws
25. Authorised Distributor/New Product Representation
26. Claims by the Supplier; Arbitration
27. Supplier’s Liability
28. Publicity
29. Former Employees
30. Code of Conduct
31. Notices
32. Waivers
1. Definition of Terms
In the Contract Documents, the following terms have the
respective meanings set out below.
(1) Actual Delivery Date means the date on which the
Equipment is received by OPG at the stipulated delivery
point.
(2) Contract Documents means the documents, including
these standard commercial terms, delivered to the
Supplier in respect of OPG’s request for proposals for the
supply or performance of the Work.
(3) Contract Price means the total of any stipulated sums for
the Work (or any portion thereof) set forth in the Contract,
as amended by any instruction notice.
(4) Engineer means the person designated from time to time
by OPG to exercise such power, authority or discretion as
is required of such person under the Contract.
(5) Equipment means all materials, machinery, assemblies,
instruments, devices or articles, and related components to
be supplied to OPG, and all associated documentation,
including any embedded or accompanying data and
computer programs which are incidental to the operation
and maintenance of the items to be supplied, together with
all related upgrades, updates, modifications and
enhancements to be supplied.
(6) Inspector means the person designated from time by
OPG to monitor the application of the quality program,
examine the Work and expedite the delivery of the Work.
(7) Intellectual Property Rights means any rights in or to a
Canadian or foreign patent, patent application, utility
model, inventor’s certificate, copyright, moral right, trade-
mark, trade name, Internet domain name, service mark,
trade secret, know-how, confidential information mask
work or integrated circuit topography, industrial design or
other intellectual property rights of any kind, whether
registered or unregistered.
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(8) Subcontractor means a person, firm or corporation
(including the person’s, firm’s or corporation’s heirs,
executors, administrators, personal and legal
representatives, successors and permitted assigns) who
supplies or performs any of the Work under an agreement
with the Supplier, another Subcontractor or an
combination of the Supplier and another Subcontractor.
(9) Supplier means the party contracting with OPG under the
Contract.
(10) Work means all labour, materials, Equipment, structures,
services, supplies and acts required to be supplied or
performed by the Supplier under the Contract, including
all packaging, inspection, shipping, handling delivery and
other incidental services required to supply the Equipment
to the designated location in the prescribed manner.
Unless otherwise specified, words importing the singular
include the plural and vice versa and words importing gender
include all genders. The term “including” means “including
without limitation”, and the terms “include”, “includes” and
“included” have similar meanings. The term “will” means
“shall”. When words that have a well-known technical or
trade meaning are used in the Contract, such words will be
interpreted in accordance with that meaning. References to
standard delivery arrangements will be interpreted in
accordance with the Incoterms 2000.
2. Contract Documents and Order of Precedence
The Contract consists of (1) the purchase order, (2) these
standard commercial terms, and (3) the other Contract
Documents, all as expressly amended by OPG and the Supplier
in writing.
These documents take precedence in the order in which they
are named above. Schedules, appendices and addenda to any
Contract Document will be considered part of such Contract
Document.
These documents are subject to subsequent amendments to the
Contract, in the form of instruction notices to the purchase
order, which will take precedence over the documents
amended thereby.
No agent, employee or other representative of OPG has
authority to make any promise, agreement or representation not
incorporated into a Contract Document, and no promise,
agreement or representation will bind OPG unless so
incorporated.
The Contract and the Work required thereby will be interpreted
to include all Work reasonably required to provide a project
result that is fit for OPG’s purposes. Where the Supplier’s
proposal sets forth design or performance descriptions or
criteria, such descriptions and criteria will be considered part
of OPG’s specifications to the extent that they enhance the
requirements of such specifications.
3. Communications
The Supplier will reference OPG’s project name, Equipment
description and purchase order number in all communications
with OPG.
4. Language and Units of Measure
All communication between the Supplier or its Subcontractors
and OPG, including all documents, notes on drawings, and
submissions required under the Contract, will be in the English
language. Unless otherwise specified in the Contract, the
supplier will ensure that the International System of Units (SI)
will be used for all purposes respecting the Work.
5. Substitutions
The Supplier may not make substitutions (if different from the
original designed and tested components supplied,
specifications, drawings or data) without written
acknowledgement and consent from OPG.
6. Pricing
Unless otherwise indicated in the Contract (1) all monetary
amounts are stated in Canadian funds, (2) the Contract Price
includes all activities required to supply or perform the Work
and all applicable customs duties, excise taxes, freight,
insurance, and all other charges of every kind respecting the
Work except for Canadian Goods and Services Tax or any
Harmonized Sales Tax and (3) the Contract Price will not be
subject to adjustments for changes in any cost of the Work to
the Supplier.
Notwithstanding anything to the contrary in the Contract, if
established in the purchase order, OPG will reimburse the
Supplier for expenses as provided in OPG’s Business Expense
Schedule referred to in the purchase order.
7. Taxes
Canadian Goods and Services Tax/ Harmonized Sales Tax, if
applicable, will be shown as extra and the Supplier’s invoice
must identify their 15 digit registration number for purposes
of Part IX of the Excise Tax Act (Canada).
OPG will have no liability for any of the Supplier’s income or
capital taxes imposed by any governmental authority
respecting the Contract.
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8. Duty
The Contract Price will be subject to adjustment for any new
customs duties, or for any change in the rate of any applicable
customs duty. Adjustments will be based upon the difference
between the rate of the customs duties at the date of the
Contract and the rate in effect at the date of importation. OPG
will have the right to effect an adjustment to the Contract Price
for any decrease in any applicable customs duties based on its
estimate of the value of foreign content if factual data is not
provided by the Supplier on request. Any additional duties,
interest, penalties or sales taxes imposed by Canada which are
attributable to either dumping duties or change in the value for
duty will in all events be solely to the Supplier’s account.
The Supplier will co-operate with OPG in applying for and
obtaining a refund of any duties or taxes paid by the Supplier
or its Subcontractors on any portion of the Work before the
refund period expires. The Supplier will require similar co-
operation from its Subcontractors. All amounts received by
the Supplier or its Subcontractors by way of such refund will
constitute trust monies to which OPG is exclusively entitled
and will be forwarded to OPG forthwith.
9. Importer of Record
Where the delivery point is outside Canada, OPG will be the
Importer of Record for customs purposes. Where the delivery
point is in Canada, should any portion of the Equipment be
manufactured or fabricated outside of Canada, the Supplier
or its agents or representative will be the Importer of Record
for customs purposes for that portion of the Work.
If for any reason import documentation provided by the
Supplier is incorrect, any further duties, interest, penalties or
taxes imposed by any governmental authority will be solely
to the Supplier’s account.
10. North American Free Trade Agreement (NAFTA)
Where the origin of goods is the United States or Mexico or
Canada, the Supplier will deliver to OPG a valid certificate
of origin with each shipment where the goods offered qualify
under NAFTA.
Any additional duties, interest, penalties or taxes resulting
from an invalid certificate of origin or the Supplier refusing
to supply one where applicable, or changes in the source of
supply, will be solely to the Supplier’s account.
11. Terms of Payment
OPG will aggregate all outstanding invoices received and
approved by OPG for payment before the 25th of each
month. Subject to any withholdings required by law,
statute or regulation, OPG will pay the Supplier this
aggregate amount on the 25th
day of the following
month or, following business day if the 25th
day falls on a
non-business day of the following month. All payments
are conditional on receipt and acceptance of Equipment
before the date payment is made. In addition, OPG may
withhold any payment if there remain outstanding any
unresolved non-conformance issues. For Suppliers
located in Canada, OPG will make all payments by
electronic funds transfer. The Supplier will deliver to
OPG suitable electronic funds transfer instructions from
time to time.
12. Assignment
The Contract enures to the benefit of and binds the parties and
their respective successors and permitted assigns.
Except as expressly set out in the Contract, the Supplier may
not, in whole or in part, assign, licence, sublicence,
subcontract, delegate or otherwise transfer the Contract or any
right or obligation under the Contract.
OPG may assign any of its rights and transfer any of its
obligations respecting the Contract (1) to any present or future
affiliated or subsidiary enterprise of OPG, or (2) to a third
party in the course of any sale, lease, merger, amalgamation,
reorganisation or other form of corporate, commercial or
financial arrangement. Upon, and to the extent of such
transfer, OPG will be entirely relieved of all such obligations
so transferred.
13. Quality Program
The Supplier will maintain a quality program that will assure
OPG that the design, material and workmanship used in the
Work fully meet the Contract requirements. The program will
conform with the ISO or CSA Z299 Quality Program Standard
and/or any other quality assurance requirements specified in
the Contract. Any proposed alternatives to the ISO or CSA
Z299 Quality Program will be subject to evaluation by OPG
for its equivalency to specified requirements.
Notwithstanding the provisions of any standard or code
applicable to the Work, the Supplier will be responsible for
and will perform all inspection, testing and surveillance of the
Subcontractors and the Work necessary to ensure that the
Work meets the requirements of the Contract. OPG may
perform surveillance at any time(s) for compliance with the
quality program and examine the Work wherever situated for
conformance to product quality requirements.
The Supplier will make the necessary arrangements to facilitate
such surveillance and examination at the Supplier’s premises
as well as at the premises of its Subcontractors. At least 48
hours notice will be given to enable the Inspector to be present
at any Inspection Plan/Quality Program hold points.
To facilitate surveillance at Subcontractor’s premises,
subcontracts will reference OPG’s purchase order number.
When requested, the Supplier will provide the Inspector with a
copy (un-priced) of all subcontract documents.
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The Supplier will promptly correct all instances of non-
conformance (as defined in ISO or CSA standards) and report
its corrective action to the Inspector in writing.
Any Work for which a unique specification does not appear in
the Contract will be of a quality which meets the requirement
as agreed by the Engineer.
When conformance to an ISO or CSA Z299 Quality Program
Standard (or equivalent accepted by OPG) is required, each
packing slip will include the following certification:
“The equipment listed herein has been inspected by the
Supplier and is in conformance with the contract
requirements and approved for shipment.”
Such certification will be endorsed with the signature, and
include the title, of an authorised representative of the
Supplier’s Quality Authority. For instruments, a list showing
OPG’s material identification number (Material Code or
Catalogue ID) or specified mark numbers will also be
enclosed.
14. Electrical Safety Approvals
The Supplier will ensure that all electrical Equipment, before
delivery, has the safety approval of the Canadian Standards
Association or the electrical approval of the Electrical Safety
Authority. The Supplier will arrange for such approval at its
expense.
15. Unavoidable Loss, Damage or Delay
Neither the Supplier nor OPG will be liable to the other for
loss, damage, delay in the Work, or non-performance of any
contractual obligation caused by war, riot, the act or order of
any competent civil or military authority, fire, flood, strike,
lockout or other labour dispute or by any other cause which is
unavoidable and beyond the party’s reasonable control. Both
parties will be prompt in restoring normal conditions, re-
establishing schedules, and resuming operations as soon as the
interruptions have ceased.
16. Shipping and Packaging Instructions
All cages, packages, boxes, crates, bundles, unpackaged
components and bills of lading will be clearly and indelibly
marked to show necessary shipping information. Markings
will be applied by a method suitable to the type of product and
packaging involved and will provide the following
information:
(1) destination address and OPG’s purchase order and
requisition number;
(2) material code number and other identifications
specified in the purchase order;
(3) the Supplier’s shipment identification number, numbering
of packages, boxes, crates, components, or assemblies of
the shipment; and a detailed packing slip, listing each
separate item, will be enclosed in a waterproof envelope
and firmly attached to each shipping container.
17. Hazardous Materials
The Supplier when shipping to any OPG site, any product
which is categorised as a hazardous material (i.e., compressed
gas, flammable or combustible material, oxidising material,
poisonous and infectious material, corrosive material or
dangerously reactive material), will comply with relevant
federal and provincial legislation and regulations pertaining to
such materials. The Workplace Hazardous Material
Information System (WHMIS) will apply and all such
materials will be properly identified with WHMIS type
warning labels. All shipments of such material to OPG sites
will include a Material Safety Data Sheet (MSDS). Where the
delivery point is a nuclear site, a copy of the MSDS will also
be sent to: The MSDS Centre, OPG, Safety Services
Department, 1549 Victoria Street East, Whitby, Ontario, L1W
3C7, Attn: Technical Information Services, Unit Head.
18. Overshipments
Equipment not ordered, including excess quantities, will be
subject to rejection. The cost of handling, packaging and
transportation of such Equipment for return will be solely to
the Supplier’s account.
19. Delivery
Title to the Equipment will be transferred to OPG free and
clear of encumbrances of any nature.
Time will be material and of the essence of the Contract.
The Supplier will be responsible for arranging its design,
manufacturing, and shipping schedules so that the Equipment
will arrive at the stipulated destination in accordance with the
delivery schedule specified in the purchase order.
In the event of a delay or default in performance by the
Supplier, OPG may at its discretion extend the time period for
performance, upon conditions satisfactory to OPG.
Alternatively, in such event, OPG may cancel the Contract in
whole or in part, without any further obligation of any nature
to OPG, receive a refund of the corresponding amounts paid to
the Supplier and seek satisfactory performance by alternative
suppliers. Any extension granted by OPG will not prejudice its
ability to exercise it cancellation rights in the event of further
delay or default.
20. Correction of Defects
If, within one year of the Actual Delivery Date of the
Equipment, any part of the Equipment becomes defective, is
deficient, or fails due to defect in design, material or
workmanship or otherwise fails to meet the requirements of the
Contract, then the Supplier upon receipt of notification from
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OPG, will make good every such defect, deficiency or failure
without cost to OPG. The Supplier will pay all transportation
charges for parts and/or Equipment both ways between the
Supplier’s factory or repair depot and the point of use.
Any part of the Equipment made good under this section 20
will be subject to all the provisions set forth in the first
paragraph of this section 20.
21. Contract Cancellation
OPG may from time to time, without cause and without
affecting the validity of the Contract, immediately cancel
any uncompleted or unperformed Work, in whole or in
part, by delivering a notice to this effect to the Supplier.
Except to the extent any such cancellation arises in respect
of any event of default by the Supplier, OPG will pay the
Supplier the amounts set out below, supported by any
audit requested by OPG (including an audit performed by
members of OPG’s internal audit staff):
(1) a percentage of the value of the item as a restocking charge
for standard stocked items;
(2) reimbursement at the Contract Price for all items completed
and delivered; and
(3) reimbursement for the direct out-of-pocket costs to the
Supplier for Work in progress directly incurred in the course of
the Work. For greater certainty, there will be no charge for
items which are not custom manufactured for the Contract.
Title to all Work for which reimbursement is made will vest in
OPG. The above settlement procedure will not apply to
situations in which OPG is entitled to terminate the Contract
by reason of default by the Supplier. OPG will not be liable to
the Supplier for loss of anticipated profit or any other
economic loss whatsoever on the cancelled portion or portions
of the Work.
22. Intellectual Property
The Supplier will pay all royalties, licence fees and other
monetary amounts required in respect of Intellectual Property
Rights associated with the Work.
The Supplier confirms that it owns or has obtained from third
parties, duly authorised grants of all right, title and interest
necessary to provide to OPG a licence regarding the
Intellectual Property Rights associated with the Work in the
manner set out in the Contract including waivers of moral
rights for the benefit of OPG. The Supplier grants to OPG an
non-exclusive, irrevocable, perpetual, royalty free and fully
paid-up licence and uninterrupted right to use all Intellectual
Property Rights that are contained or embedded in, required
for the use of, used in the production of, or required for the
reproduction, modification, maintenance, servicing,
improvement or continued operation of the Work. The rights
granted under this paragraph include a right for OPG (1) to
make copies, (2) to modify and create derivative works from
the subject matter of the grant of the right, and (3) to assign,
sublicence and transfer rights granted under this paragraph,
in whole or in part, to a present or future affiliated enterprise
of OPG or to a third party that provides services to OPG.
Upon disposition of the Work in whole or in part, the
Supplier will provide, upon the request of and at no charge
to OPG, either (1) a direct grant to the recipient of this Work,
a new licence of all Intellectual Property Rights associated
with the use of this Work, or (2) permission for OPG to
assign and transfer to the recipient of this Work all existing
licences of Intellectual Property Rights associated with the
use of this Work.
The Supplier will, at its expense defend all claims, actions or
proceedings against OPG based on any allegation that the
Work, or any part of the Work, constitutes an infringement
upon, or a misappropriation of any Intellectual Property
Rights and will pay to OPG all resulting costs, damages,
charges and expenses incurred. OPG will give the Supplier
written notice of any such claim, action or proceeding and at
the request and expense of the Supplier, OPG will provide
all available information, assistance and authority required to
conduct its defence.
If all or any part of the Work is finally determined to constitute
an infringement or misappropriation of Intellectual Property
Rights, or if OPG is enjoined form using any of the Intellectual
Property Rights as a result of an infringement or
misappropriation claim, the Supplier will at its expense
promptly obtain for OPG the right to continue using the Work
or promptly modify or replace the non-compliant elements of
the Work to the extend necessary to render the Work
compliant, without adversely affecting the functional or
performance capabilities of the Work.
23. Laws, Regulations and Subcontractors
The Supplier will comply with relevant federal, provincial and
municipal statutes, regulations and bylaws pertaining to the
Work and its performance.
The Supplier must provide the name and address of proposed
major Subcontractors, together with a list of the items to be
supplied or Work to be performed by each. Thereafter, no
change involving any major Subcontractor will be made
without adequate cause and without OPG’s prior written
approval. The Supplier will be fully responsible for all acts
and omissions of each Subcontractor and worker of the
Supplier and each Subcontractor and any such acts and
omissions will be deemed to be those of the Supplier.
Accordingly, respecting each obligation of the Supplier under
the Contract, the Supplier will ensure that no worker of the
Supplier or any Subcontractor and that no Subcontractor will
breach any such obligation.
24. Governing Laws
The Contract and the conduct of the parties with respect to the
formation and performance of the Contract are governed by
and are to be construed and interpreted in accordance with the
laws of Ontario and the laws of Canada applicable in Ontario.
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The parties irrevocably submit to the non-exclusive jurisdiction
of the courts of Ontario and the Federal Court of Canada.
25. Authorised Distributor/New Product Representation
The Supplier confirms that it is duly authorised by the
manufacturer of the Equipment to distribute the Equipment
and that OPG will be entitled to the full benefit of all
warranties, customer service, maintenance and repair programs
offered by the manufacturer. Unless otherwise stated in the
Contract, all Equipment supplied will be the most current
model or version commercially available at the time of supply
will be new and comprised entirely of genuine unused
components in good operating condition and will be fully
eligible for maintenance service without any requirement for
further qualification or inspection.
26. Claims by the Supplier; Arbitration
Unsettled disputes or claims arising out of the Work may, on
the agreement of the parties, be settled through binding
arbitration in accordance with the Arbitration Act, 1991
(Ontario).
27. Supplier’s Liability
The Supplier’s liability for personal injury (including death)
and property damage will survive acceptance, approval or use
of the Work, or any part thereof, by OPG.
The Supplier will not be liable to OPG for:
(1) loss of use of the Work or of the project in which it is
installed or is to be installed;
(2) increased cost of operation of the Work or of said project;
(3) claims by third parties (other than for personal injury,
property damage or patent infringement);
which may arise, whether by negligence or otherwise,
subsequent to delivery, due to the Supplier’s performance or
failure to fully perform under the Contract.
28. Publicity
The Supplier will (and will cause each Subcontractor to) not
release for publication any information in respect of the
Contract without the prior written permission of OPG.
29. Former Employees
OPG has a policy restricting the involvement in OPG contracts
of former OPG employees who received a severance package
or who are receiving pension payments from OPG or an
affiliated enterprise or are on a non-working pension bridge
from working with OPG. If the Supplier employs or will be
using former employees in the Work, the Supplier must
identify the names and responsibilities of each such
individual for approval by OPG before engaging them in the
Work.
30. Code of Conduct
The Supplier will not take any action that would cause OPG or
any of its directors, officers, employees, agents or
representatives to be in breach of any of the obligations set out
in OPG’s Code of Business Conduct. A current copy of the
code may be reviewed at www.opg.com.
31. Notices
Notices to OPG for:
(1) Nuclear will be addressed to the Vice President, Nuclear
Supply Chain, 889 Brock Road South, Pickering, Ontario
L1W 3J2;
(2) Electricity Production will be addressed to the Director,
Electricity Production Supply Chain Services, 700
University Avenue, Toronto, Ontario, M5G 1X6;
(3) All others will be addressed to the Director, Corporate
Procurement and Business Services, 700 University
Avenue, Toronto, Ontario, M5G 1X6.
Such notices will be effective upon receipt.
Notices to the Supplier will be effective upon delivery to the
Supplier or the sending of same by registered post or fax to the
Supplier's last address or fax number recorded with OPG.
32. Waivers
No waiver of any term of the Contract is binding unless it is in
writing and signed by all the party entitled to grant the waiver.
No failure to exercise, and no delay in exercising, any right or
remedy, under the Contract will be deemed to be a waiver of
that right or remedy. No waiver of any breach of any term of
the Contact will be deemed to be a waiver of any subsequent
breach of that term.