PurchaseAgreementTC_2014_US

PurchaseAgreementTC_2014_US
TERMS AND CONDITIONS OF PURCHASE
1.
DEFINITIONS
Materials means the goods, materials, and equipment delivered
under this Purchase Order
Purchase Order means this Purchase Order and all its attachments
(such as these Terms and Conditions) and exhibits.
Purchaser means the entity who issued this Purchase Order.
Seller means the person or entity to whom this Purchase Order is
issued.
Services mean the services/work provided under this Purchase
Order
Work means Services and Material provided under this Purchase
Order.
2.
ACCEPTANCE OF ORDER
By accepting this Purchase Order or any part thereof, the Seller
agrees to and accepts the terms and conditions hereof. This
Purchase Order, together with any documents incorporated herein
by reference, constitutes the sole and entire agreement of the
parties with respect to the Purchase Order, and supersedes all prior
or contemporaneous understandings, agreements, negotiations,
representations and warranties, and communications, both written
and oral, with respect to the subject matter of the Purchase Order.
Any additional or conflicting terms provided by Seller are hereby
objected to, and the parties agree Purchaser only agrees to this
Purchase Order on the terms herein. Acknowledgement on a form
other than the Purchase Order provided herein, or start of any, or
completion of the execution of the Work or shipment or invoicing
shall constitute acceptance of this Purchase Order in its entirety on
the terms herein. Purchaser is not obligated to any minimum
purchase or future purchase obligations under this Purchase Order.
3.
QUANTITY
Seller shall provide the quantity indicated, and in no case may
Seller provide substitute products or products complying with
alternative specifications without express written approval (and
agreement upon change in price) from Purchaser. Seller shall not
consider delivery complete until delivery of the stated quantity.
Purchaser may reject all or any excess Materials. Any such
rejected Materials shall be returned to Seller at Seller’s risk and
expense.
4.
PRICES
Prices are firm, not subject to escalation or additional charges
unless otherwise specifically agreed in writing. Any agreed-upon
discounts will be computed from the date of receipt of correct
invoices or acceptance of Work, whichever occurs last. The Seller
agrees to credit, or reimburse at Purchaser’s option, the Purchaser
for any taxes, customs, duties or other levies that are included in
the price(s) (per the front of this Purchase Order) but are not
required to be paid.
5.
INSPECTION
All Work covered by this Purchase Order shall be subject to
inspection by the Purchaser and to rejection if not satisfactory. In
addition to Purchaser’s other remedies (including without
limitation pursuant to breach of warranty herein), Materials so
rejected will be held by the Purchaser at the Seller’s risk pending
directions from the Seller as to disposal at Seller’s expense. If
Seller does not promptly remove such rejected Materials,
Purchaser, at its discretion, may do so at Seller’s expense. Any
expenses, including any test required to validate compliance,
incurred by the Purchaser in respect of rejected Work will be for
the Seller’s account. Neither inspection nor failure to inspect shall
relieve Seller of responsibility or warranties with respect to Work
provided hereunder or imply acceptance thereof. Without limiting
the foregoing, risk of loss or damage to Work shall not pass to
Purchaser until completion, delivery to and acceptance by
Purchaser.
6.
DEFAULT
Time is of the essence with regard to this Purchase Order. The
Purchaser reserves the right to terminate all or any part of this
Purchase Order, without prejudice to any other rights and remedies
it may have, in the event of failure by the Seller to perform as
expressly specified in this Purchase Order, including without
limitation by sending Materials, performing Services or delivering
not in strict compliance with the terms herein. In the event of
failure to deliver or otherwise perform as specified, the Purchaser
may return or reject part or all of any Work, receive a refund / not
owe for such Work, and costs incurred by the Purchaser as a result
of such default will be for the Seller’s account. Upon Seller’s
breach, Purchaser may also (in addition to any other remedies it
may have) expressly use the remedy of “cover” at Seller’s expense
(and Seller shall promptly pay Purchaser any amounts owed from
such cover).
7.
CANCELLATION
Until notice of Seller’s acceptance of the Purchase Order is
received the Purchaser reserves the right to cancel the Purchase
Order in whole or in part, with or without cause, at no cost to the
Purchaser. In the event of cancellation of this Purchase Order by
Purchaser after notice of Seller’s acceptance is received by the
Purchaser (except where such cancellation is due to the default of
the Seller or otherwise permitted by the terms herein) the Seller
shall be entitled to reimbursement for proven direct costs properly
incurred to date of such cancellation without claim for loss of any
other nature. Upon Seller’s receipt of any notice of cancellation,
Seller, unless otherwise directed, shall immediately discontinue all
Work in process and otherwise mediate its costs and damages as
much as possible.
8.
FORCE MAJEURE
Should either the Purchaser or the Seller be precluded from or
delayed in performing its obligations hereunder by reason of Act of
God or any other cause beyond its reasonable control (“Force
Majeure Events”), then such party shall be entitled to a reasonable
extension of time, to be negotiated and agreed by both parties, for
the performance of its obligations. In the event, however, that
either party is precluded from or delayed in the performance of its
obligations to an extent that any extension or time for performance
would cause damage to the other party, then the other party may
cancel this Purchase Order without further recourse. Seller’s
economic hardship or changes in market conditions are not
considered Force Majeure Events. Seller shall use all diligent
efforts to end the failure or delay of its performance, ensure that
the effects of any Force Majeure Event are minimized and resume
performance under the Purchase Order.
9.
INDEMNIFICATION AND INSURANCE
Seller shall indemnify, defend and hold harmless the Purchaser, its
affiliates, agents, employees and customers from and against any
and all liabilities, losses, damages, suits, claims, demands, costs
and expenses (including reasonable attorneys’ fees) of any nature
arising out of any of the following: (i) Work provided by or on
behalf of Seller, (ii) performance by or on behalf of Seller
hereunder, including in each case claims made or damages
sustained in respect of property damage and personal injury
(including death) except to the extent that such injury or damage is
attributable to the gross negligence or willful misconduct of
Purchaser, its affiliates, agents or employees, and/or (iii) any action
or omission of Seller or its agents. Seller shall not enter into any
settlement without Purchaser’s prior written consent. Seller shall
maintain in effect at all times, with insurers of adequate size and
standing for such risks, insurance policies and coverages
commensurate with the risks associated with its obligations under
this Purchase Order. Upon request, Seller shall furnish Purchaser
with an insurance certificate and other evidence requested by
Purchaser evidencing that such insurance policies and coverages
are in effect.
March 2014
10.
INFRINGEMENT
Seller shall indemnify, defend and hold harmless the Purchaser
from and against any and all costs, damages, suits, claims and
demands of any nature arising out of any claims of infringement or
misappropriation of any patent, trademark, copyright, industrial
design or other intellectual property right of a third party related to
any Work (or parts thereof) purchased hereunder or otherwise
related hereto.
11.
ENCUMBRANCES
Seller agrees to deliver Work to be supplied hereunder free and
clear of all liens and encumbrances, including without limitation
claims of laborers or materialmen, and Purchaser may withhold
payment pending receipt of evidence in form and substance
satisfactory to it of the absence of such liens and encumbrances. In
any case, in the event any lien or encumbrance on any Work is
claimed related to this Purchase Order, Seller shall immediately
have such lien or encumbrance removed.
12.
NON-DISCLOSURE
Seller agrees that it will not disclose any secret or confidential
information that it may obtain or that may be developed in
connection with this Purchase Order, including without limitation
the price and quantity of the Work, designs, specifications,
technical requirements, technical documentation, source/system
documentation, Purchaser’s intended use for the Work, and any
other information regarding Purchaser, its affiliates, business,
prospects, parts, customers or plans. In addition, Seller shall only
use such information as necessary to perform its obligations
pursuant to this Purchase Order. Without limiting any of the
foregoing and for the avoidance of doubt, Seller may not disclose
for advertising purposes any business conducted with Purchaser or
related information.
13.
TOOLING, WORK PRODUCT AND OTHER
PROPERTY
Drawings, tools, dies, designs, specifications, technical
requirements,
technical
documentation,
source/system
documentation and other similar documents or data issued to the
Seller by or on behalf of the Purchaser, or paid for by Purchaser,
pertaining to Work covered by this Purchase Order: (i) remain the
sole property of Purchaser (including without limitation all
intellectual property), (ii) may be used by Seller solely to perform
Work for Purchaser hereunder, (iii) shall be marked as property of
Purchaser, (iv) may not be moved from Seller’s premises without
Purchaser’s written consent, (v) shall be kept free of liens and
encumbrances, (vi) may not be modified, and (vii) shall be
returned to Purchaser upon the earlier of its request or completion
of this Purchase Order. In addition, Seller shall ensure and be
responsible for the safety and good condition of such property. No
charge will be accepted by the Purchaser for patterns, pattern
equipment, dies, jigs, fixtures, special apparatus or other similar
items used in connection with the Work shown in this Purchase
Order unless otherwise specifically agreed in writing.
All materials, discoveries, ideas and otherwise developed by Seller
in performing under this Purchase Order (i.e. work product) shall
be owned by Purchaser and shall be considered work made for hire
by Seller for Purchaser. Purchaser shall own all United States and
international copyrights, patent and other intellectual property
rights in work product. Seller agrees to assign, and upon creation
of each work product automatically assigns, to Purchaser, its
successors and assigns, ownership of all United States and
international rights in each and every work product, insofar as any
ownership and rights in such work product, by operation of law,
are not automatically with Purchaser. From time to time upon
Purchaser’s request, Seller and/or its personnel shall confirm such
assignment by execution and delivery of such assignments,
confirmations or other written instruments as Purchaser may
request. Purchaser, its successors and assigns, shall have the right
to obtain and hold in its or their own names all copyright
registrations, patents, and other evidence of rights that may be
available for work product.
-2-
14.
GUARANTIES AND WARRANTIES
Seller guaranties and warrants that the Work will be suitable for
the specified purpose for which it is purchased for a period of two
years after acceptance by Purchaser. In addition, the Seller
expressly guaranties and warrants that for a period of two years
after acceptance by Purchaser: (i) all Work shall conform to the
strict requirements and specifications of this Purchase Order; (ii)
all design, workmanship and otherwise regarding all Work shall be
free of defects and failures; (iii) all Work shall be performed in
accordance with no less than industry standards by qualified
personnel; (iv) none of the Work infringe the intellectual property
of any third party, and no Work are subject to restrictions on use;
and (v) all Work, and all actions, practices and operations by Seller
related hereto, comply with all applicable law.
In the event of failure to adhere to any of the forgoing, in addition
to any other remedies Purchaser may have, all Work shall be
replaced or repaired at Purchaser’s or its customer’s site by the
Seller immediately at no additional cost. Any non-conforming
Services shall be re-performed. In the event that the Seller is
unable or unwilling to effect immediately such repair,
replacement, or re-performance the Purchaser shall have the right
to effect or have effected such repair, replacement, or reperformance at the Seller’s expense. If Purchaser approves
sending any Materials back to Seller for repair, Seller shall also be
responsible for and promptly pay all repackaging, handling and
transportation charges (both ways). In all cases, Seller shall be
expressly responsible for and promptly pay all labor costs,
customer chargebacks and all other damages and costs of
Purchaser and its customer. Any attempt by Seller to disclaim any
of the warranties or guaranties herein shall be void and of no
effect.
15.
ASSIGNMENT AND SUBCONTRACTING
Seller shall not assign, transfer, delegate or subcontract this
Purchase Order or Work related hereto (in whole or in part)
without the Purchaser’s prior written approval. Any such
assignment or subcontract without such written approval shall
render this Purchase Order voidable at the Purchaser’s option. In
all cases, Seller shall remain liable for this Purchase Order as the
primary obligor and Seller shall ensure that any assignee or
subcontractor complies with all of the terms herein. “Subcontract”
is to be broadly interpreted and includes the use of any nonemployee agent.
16.
GOVERNING LAW
This Purchase Order and the underlying transactions, and all
matters relating to this Purchase Order, will be governed by the
laws of the Commonwealth of Pennsylvania applicable to contracts
made without giving effect to any conflict of law provisions
thereof; provided, however, the UN Convention on Contracts for
the International Sale of Goods is expressly excluded/disclaimed
and not applicable to this Agreement or any underlying
transactions. Any controversy which may arise between the parties
with regard to validity, effectiveness, interpretation and
enforcement of this Contract shall be submitted to arbitration under
the American Arbitration Association in English under 3 neutral
arbitrators in Pittsburgh, PA.
17.
CONFLICTS
In case of a conflict between these “Terms and Conditions of
Purchase” and any other terms on the front page(s) of the Purchase
Order, the text of the front page(s) of the Purchase Order shall
control. Furthermore, the Purchaser shall not be bound by any
agreement modifying in any way the Terms and Conditions or the
terms on the front page(s) of the Purchase Order, and/or any
attachments unless said amendment is subsequent to the date of the
Purchase Order, is in writing, and is signed by a duly authorized
representative of the Purchaser.
18.
INVOICING
Invoices will be rendered by the Seller after all Materials have
been received by Purchaser and the Services performed. A
separate invoice must be issued for each Purchase Order. Each
invoice will contain a complete description of the Materials
delivered or Services rendered and show the Purchase Order
number. Any sales taxes, duties and transportation charges which
are the responsibility of Purchaser pursuant to the front of this
Purchase Order will be shown separately on each invoice.
Invoices must be mailed to the Purchaser at the address indicated
on the front page and must not be left with an employee of the
Purchaser at the time of delivery of Material or performance of
Services. Notwithstanding any provision contained in any invoice,
in no event shall there be any interest or other charges on overdue
invoices, and any such purported amounts will not be owed or
paid.
19.
DELIVERY AND SHIPPING
Seller must comply with the stated schedule and delivery date(s)
which are meant to be the “Delivery Date” at the Purchaser’s
facility. Seller shall ensure that the quantities and delivery
schedules herein are effected ON TIME. Subject to Section 14 and
unless otherwise specified on the face of the Purchase Order, Seller
shall pay for freight charges. If the the face of the Purchase Order
specifically states that the Purchaser is responsible for any freight
charges, such charges shall be included as a separate line item on
the invoice. The invoice on which these charges are shown (as a
separate item) must be accompanied by a signed original and
copies of bills of lading or express receipts and receipted freight or
express bills to substantiate such charges. In case of delays, the
Seller will be responsible for all associated costs related with such
delays including special transport in order to ensure prompt
delivery. Even if Purchaser is responsible for shipping, the Seller
shall be responsible for any excess transportation charges incurred
by making partial shipments not specifically authorized in writing
by the Purchaser. Materials shipped to Purchaser in advance of
schedule may be returned to Seller at Seller’s expense.
Notwithstanding any provision to the contrary, for international
transactions, Seller shall be exporter of record and responsible for
carrying out related customs formalities and, for any Materials
returned to Seller that requires import, Seller shall carry out the
related customer formalities and act as importer of record.
The Purchase Order number must appear on all shipping manifests,
bills of lading, invoices and correspondence and must be marked
on or tagged to all Material shipped. A packing list and any other
requested document must accompany each shipment showing
Purchase Order number, item number and quantity of each product
packaged (collectively, “Order Information”). (All other
documentation should also include such Order Information). For
any international shipments (except for shipments to Purchaser’s
customer’s location), Seller shall also include a copy of airway or
truck bill of lading and Seller’s commercial invoice.
The Parties agree and acknowledge that time is of the essence with
respect to the delivery obligations set forth in the Purchase Order.
If Seller fails to meet the Delivery Dates as set forth in Purchase
Order, Seller shall pay to Purchaser liquidated damages of 1% of
the Purchase Order amount per calendar day up to a maximum of
25% of the Purchase Order value. In the event the maximum
amount of liquidated damages is reached under a particular
Purchase Order, Purchaser has the right to terminate the Purchase
Order for cause. Seller and Purchaser agree and acknowledge that
the liquidated damages are fair, not a penalty, and are in lieu of
actual damages suffered by Purchaser. Purchaser shall be
permitted to deduct any liquidated damages from any monies due
or that may become due to Seller under any Purchase Order.
20.
PACKING
Seller shall properly pack all Materials prior to shipping, including
without limitation that Seller shall package the Materials supplied
to ensure protection against environmental changes and damage
during handling and transportation. No charge will be accepted by
the Purchaser for packing, boxing, containers, reels or cartage
unless otherwise specifically agreed in writing. All Material and
packaging must be clearly marked and identified in accordance
with Purchaser’s instructions and as required by law.
21.
-3-
CHANGES
Notwithstanding anything else herein, Purchaser reserves the right
to adjust quantities, the scope of Services, specifications/technical
requirements, project schedule, Delivery Dates, and otherwise
from time to time upon written notice to Seller (and upon any
material change, the parties shall in good faith negotiate and agree
upon an equitable adjustment in price).
22.
RIGHT TO SET OFF
Notwithstanding the foregoing, in the event that Seller is in breach
of any obligation under this Agreement, Purchaser shall be entitled
to withhold payments, deemed by Purchaser to be proportionate to
the actual impact of the breach, which would otherwise be due to
Seller under any Purchase Order. All costs, losses, charges,
damages or expense incurred by Purchaser, for which Purchaser
determines Seller is liable under this Agreement or otherwise, may
be deducted by Purchaser from any monies due or becoming due
from Purchaser to Seller without notice.
23.
OTHERS
Seller agrees to allow access to its premises and to provide
technical or equipment assistance to Purchaser and/or (as requested
by Purchaser) its customer to carry out audits or verifications of
the quality, products and/or processes. Records pertaining to the
Work being verified shall be made available by Seller to Purchaser
and/or (as requested by Purchaser) its customer.
This Purchase Order (including these Terms and Conditions)
represent the entire agreement of the parties related to the subject
matter hereof, and supersedes any and all prior or
contemporaneous understandings, agreements or communications
related thereto. The failure of Purchaser to insist on performance
of any provision herein (or part thereof) shall not be construed as a
waiver of such provision (or part thereof). In the event that any
provision of this Purchase Order is held invalid or unenforceable,
the affected provision shall be modified to make it valid and
enforceable as close to the intent of the provision as possible (and
such invalidity shall not affect the enforceability of the remaining
terms of this Purchase Order).
24.
RELATIONSHIP OF THE PARTIES
The relationship between the parties is that of independent
contractors. Nothing contained in the Purchase Order shall be
construed as creating any agency, partnership, joint venture or
other form of joint enterprise, employment or fiduciary
relationship between the parties, and neither party shall have
authority to contract for or bind the other party in any manner
whatsoever. No relationship of exclusivity shall be construed from
this Purchase Order.
25.
NO THIRD-PARTY BENEFICIARIES
This Purchase Order is for the sole benefit of the parties hereto and
their respective successors and permitted assigns and nothing
herein, express or implied, is intended to or shall confer upon any
other person or entity any legal or equitable right, benefit or
remedy of any nature whatsoever under or by reason of these
terms.
26.
CONFIDENTIALITY
All non-public, confidential or proprietary information of the
Purchaser, including, but not limited to, specifications, technical
requirements,
technical
documentation,
source/system
documentation, samples, patterns, designs, plans, drawings,
documents, data, business operations, customer lists, pricing,
discounts or rebates, disclosed by Purchaser to Seller, whether
disclosed orally or disclosed or accessed in written, electronic or
other form of media, and whether or not marked, designated or
otherwise identified as “confidential,” in connection with the
Purchase Order is confidential, solely for the use of performing the
Purchase Order and may not be disclosed or copied unless
authorized by the Purchaser in writing. Upon Purchaser’s request,
Seller shall promptly return all documents and other materials
received from Purchaser. Purchaser shall be entitled to injunctive
relief for any violation of this Section. This Section shall not apply
to information that is: (a) in the public domain; (b) known to the
Seller at the time of disclosure; or (c) rightfully obtained by the
Seller on a non-confidential basis from a third party.
27.
TITLE AND RISK OF LOSS
Title to Materials passes to the Purchaser upon delivery of Material
to the Purchaser’s facility on the Delivery Date. Seller bears all
risk of loss or damage to the Materials until delivery of goods to
the Purchaser’s facility on the Delivery Date. Title to Services
passes to the Purchaser upon performance of such Services.
28.
CUMULATIVE REMEDIES
The rights and remedies under this Purchase Order are cumulative
and are in addition to and not in substitution for any other rights
and remedies available at law or in equity or otherwise.
29.
COMPLIANCE WITH LAW
Seller is in compliance with all applicable laws, regulations and
ordinances, including but not limited to the US Foreign Corrupt
Practices Act and laws and regulations involving human rights
such as child labor, forced labor, slavery, and human trafficking.
Seller has and shall maintain in effect all licenses, permissions,
authorizations, consents and permits that it needs to carry out its
obligations under the Purchase Order.
30.
FUNDING AGENCIES; FLOW DOWNS
This Purchaser Order may be considered a lower tier subcontract to
a prime contract that is, in whole or in part, funded by government
entities and/or agencies (a “Funding Agency”). The Federal
Funding
Terms
set
forth
at
http://www.wabtec.com/documents/FederalFundingTerms.pdf are
hereby incorporated and made part of this Purchase Order. In such
circumstances, any provisions that are required by a Funding
Agency, whether or not expressly set forth in this Purchase Order
(including the Federal Funding Terms), shall be incorporated by
reference. Anything to the contrary notwithstanding, all terms
mandated by a Funding Agency shall be deemed to control in the
event of a conflict with other provisions contained in this Purchase
Order. Seller shall not perform any act, fail to perform any act, or
refuse to comply with any Purchaser requests, which would cause
Purchaser to be in violation of terms and conditions of a Funding
Agency. Non-exclusive examples of terms which may apply
include:
Debarment and Suspension, Conflicts of Interest,
Lobbying Certification and Disclosure, “Responsibility”
Requirements, Federal Civil Rights Laws and Regulations, Equal
Opportunity, Socio-Economic Development, Sensitive Security
Information, Prevailing Wages, Anti-Kickback, Patent Rights,
Rights in Data, Export Control, Seat Belt Use, US Flag
Requirements, domestic content requirements (such as Buy
America), audit rights, labor-related requirements, environmental
protection, energy conservation, and similar provisions. For the
avoidance of doubt, any enumeration in a Purchase Order
(including the Federal Funding Terms) of terms and conditions that
are required by a Funding Agency shall not be construed as a
limitation upon this Section 30. If any domestic content
requirements are incorporated, Seller agrees to supply a domestic
content certificate in a form satisfactory to Purchaser. If a Prime
Contract is referenced on the face of the Purchase Order, the terms
and conditions of such Prime Contract are incorporated herein by
reference.
31.
TRADE COMPLIANCE
Seller will not export or transfer information, technical data, or
materials provided by Purchaser, whether directly or indirectly, to
any person or entity, even if such disclosure or transfer is
otherwise permitted under this Purchase Order, without first
complying strictly and fully with all export controls (including, but
not limited to the International Traffic and Arms Regulations
(ITAR)) which may be imposed on such information, technical
data or materials by the United States Government or any country
or organization of nations with jurisdiction over the transaction.
Seller further acknowledges and agrees that Purchaser may
unilaterally terminate any obligations under this Purchaser Order
without penalty if Purchaser becomes aware of any violation of
applicable export control laws and regulations. If Materials qualify
-4-
for any free, preferential or other trade agreement, Seller shall
provide Purchaser with requested related documentation. Seller
agrees that it will promptly supply such information, requested by
Purchaser for compliance with laws and regulations, including, but
not limited to, the U.S Dodd-Frank Wall Street Reform and
Consumer Protection Act (Conflicts Minerals), Foreign Account
Tax Compliance Act (FATCA), and Registration, Evaluation,
Authorisation,
and
Restrictions
of
Chemicals
(REACH). Purchaser may include additional language in the face
of this Purchase Order related to export control and shipping and
other documentation.
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