TWMC P.O. Terms and Conditions

TWMC P.O. Terms and Conditions
TERMS AND CONDITIONS 11177
1.
Offer and Contract. The following terms and conditions, together with such terms and conditions as are
set forth on the face of this purchase order, with such plans specifications, or other documents as are
incorporated by reference on the face of this order, and which such additional or different terms and conditions
as are approved in writing by Buyer in a Change Notice issued by it to this order, constitutes the offer of Buyer
to Seller and Shall, when accepted, constitute the entire order or contract between Buyer and Seller and
supersede any prior or contemporaneous agreements or correspondence between Buyer and Seller. Buyer
hereby gives notice of its objection to any different or additional terms except for any such terms and
conditions as may be expressly accepted by Buyer in writing. Buyer's offer shall be deemed to have been
accepted by Seller upon Buyer’s receipt of the attached acknowledgement copy duty executed by Seller, upon
Seller’s shipment of the products identified herein, or (if such product are to be specially manufactured for
Buyer) upon Seller’s commencement of the products. Any reference herein to any proposal, quotation, or
other communications by Seller shall, unless indicated to the contrary herein, be deemed to be limited to the
description of the products and to be limited by the terms and conditions set forth or incorporated by reference
herein.
2.
Assignment: Subcontracting. Neither party shall have any right to assign this order or any benefits
arising from this order without the prior written consent of the other, and, unless otherwise agreed in writing
the rights of any assignee shall be subject to all set-offs, counterclaims, and other comparable right arising
hereunder. Seller shall not, except in the case of raw materials (including castings, forgings, and rough welded
structure) or standard commercial items or except as otherwise agreed in writing by Buyer, delegate or
subcontract all or substantially all of the work or any item or material to be furnished under this order.
3.
Substitutions; Extras. No substitutions of material or accessories may be made without Buyer’s written
consent. No charges for extras will be allowed unless such extras have been ordered in writing by Buyer and
the price agreed upon.
4.
Information. Unless otherwise agreed in writing between the parties, (I) any designs, drawing,
specifications, or other manufacturing information furnished by Buyer to Seller shall be deemed to be
confidential to Buyer and to have been furnished solely for the performance of this order and all copies of such
information shall be returned to Buyer upon completion of the same, but (II) any designs, drawings,
specifications, or other manufacturing information delivered by Seller to Buyer may be used for any purpose
whatsoever. The foregoing shall apply not withstanding the presence or absence of any contrary legend or
statement on any of such information.
5.
Terms of Payment. The date of payment shall, subject to any contrary term on the face hereof, be
computed from the later of (I) Buyer’s receipt of an acceptable invoice or (II) Buyer’s receipt of the product,
together with any required documents, in apparently good order. Draft will not be honored.
6.
Compliance with Laws. Seller’s performance of work hereunder and all product to be delivered
hereunder shall be in accordance with any and all applicable executive orders. Federal, state, municipal, and
local laws, and ordinances, and rules, orders, requirements and regulations there under. Such Federal laws
shall include, but not be limited to, the Fair Labor Standards Act of 1938 as amended.
7.
Title and Risk of Loss. Title to, and risk of loss of, each product or part to be delivered hereunder shall,
unless otherwise provided herein, pass from Seller to Buyer upon delivery of such product at the F.O.B point
designated on the face of this order.
8.
Inspection and Testing. (a) All material and work in progress shall be subject to inspections and test at
all times and places and when practicable during manufacture as Buyer may direct. If any inspection or test,
whether preliminary or final, is made on Seller’s premises, Seller shall furnish, without additional charge, all
reasonable facilities and assistance for safe and convenient inspections and tests required by the inspectors
in the performance of their duty. All inspections and tests shall be performed in such manner as will not
unreasonably delay the work. Buyer shall have the right to charge to Seller any cost of inspection and test
when articles are not ready at the time inspection is requested by Buyer, (b) Seller shall work within, and
inspect to, tolerances and limitations specified on drawings and specifications covering the work and shall
make such tests as specified in the drawing or test specifications, unless deviation there from is authorized in
writing by Buyer, (c) All shipments shall be subject to final inspections by Buyer after receipt by Buyer at
destination. If material supplied or work performed by Seller is found to be defective, Buyer shall have the right
to require prompt correction thereof either by Seller, at Seller’s risk and expense, or, upon authorization from
Seller, by Buyer in its own plant. Buyer shall have the right to back charge Seller for the cost of any
corrections made by it. If correction of such work is impracticable, Seller shall bear all risk after notice of
rejection and shall, if so requested by Buyer and at Seller's own expense, promptly make all necessary
replacements. If Seller fails to make such replacements promptly, Buyer may make the same and back charge
to Seller all the costs occasioned to Buyer thereby, (d) Buyer's inspection or failure to perform inspection shall
not relieve Seller from any of its obligations under this order.
9.
Changes. Buyer shall have the right, from time to time, by its written Change Notices, and without notice
to Seller’s surety or sureties, if any, to make changes or additions, within the scope of this order, in or to (I) the
drawing, specifications, or instructions for the work, (II) the quantity, or (III) the time or method of delivery or
shipment. Should any change so ordered cause a material increase or decrease in the cost of, or the time
required for, the performance of any part of the work under this order, an equitable adjustment shall be made
in the order price or time of performance or both. Seller shall, however as a condition precedent to any right to
such adjustment, submit its written claim for such adjustment to Buyer within thirty (30) days after its receipt of
Buyer’s Change Notice or after any other action of Buyer which Seller considers to constitute a change. Seller
shall, unless written instructions to the contrary have been received for Buyer, proceed with the work as a
changed without interruption and without awaiting settlement of any such claim.
10. Delivery, Delays. The time or times of delivery specified in this order are of the essence of this order.
Any delay will be excused only if (I) such delay is due to strike, fire, riot, act of God, act of public enemy or
other unforeseeable cause beyond the reasonable control and without the fault or negligence of Seller and if
(II) Seller shall have notified Buyer in writing of the existence of such cause within five (5) business days after
the commencement of the delay, giving all pertinent information concerning such case. Failure by Seller to
deliver within the time specified in this order shall give Buyer the right to cancel this order without any liability.
In addition, Buyer shall be entitled to other rights and remedies which arise out of Seller’s delay in delivery.
Unless otherwise provided in this order, no delivery required hereunder shall be made more than fifteen (15)
days prior to change to the applicable delivery date, and Buyer shall have the right to return earlier at Seller’s
risk and expense or to charge to Seller any additional costs sustained because of the same. Unless otherwise
provided in this order, Buyer shall have the right to refuse shipment in excess of quantities specified in this
order.
11. Termination; Cancellation. (a) Buyer shall have the right to terminate this order in whole or in part by
written or telegraphic notice to Seller for Buyer’s convenience. Buyer shall not be liable to Seller if the order is
for Seller’s standard products. If the order is for non-standard products, Buyer shall pay Seller (i) for products
which have been completed in accordance with this order; (ii) the costs of materials on hand, work in process,
and parts committed to this order and cannot be used generally in Seller’s business; and (iii) reasonable outof-pocket costs and expenses incurred by Seller attributable to such termination. In no event, shall payments
made by Buyer exceed the price of this order. (b) The preceding paragraph (a) shall not limit any legal rights
of Buyer to cancel this order without any liability by reason of any default by Seller, and Buyer further reserves
the right to cancel this order without further liability for articles not accepted by Buyer in the event seller
commits an act of bankruptcy, files or has filed against it a petition under the Federal Bankruptcy Act, suffers
any receivership or other similar petition to be filed for or against it, or make a general assignment for the
benefit of its creditors.
14. Patents. Seller shall, at Seller’s expense, defend any claim, suit or proceeding brought against Buyer,
and/or its vendees, mediate and immediate, based upon the products purchased hereunder constituting a
direct or a contributory infringement of any patents, trademarks, copyrights, and other intellectual properties.
Seller shall indemnify and hold Buyer and such vendees harmless against all claims, liabilities, damages, and
costs (including reasonable attorney’s fee) arising from such claim, suit or proceeding.
15. Buyer-Furnished Property. The following additional provisions shall, unless specifically otherwise
agreed in writing, apply with respect to any and all tools, equipment, material or other property used in the
manufacture or products for Buyer which, referred to herein as Buyer-Furnished. (a)Seller shall have the right
to use all Buyer-furnished property without payment of rent in the performance of this order or of work for
Buyer buy shall not, without Buyer’s written consent, use the same on any other work, (b) Title to all Buyerfurnished property shall at all times be and remain with Buyer, whether or not such property is attached to any
real estate or other thing. Seller shall, upon request of Buyer and without additional charge, execute such
financing statements, security agreements, or other instruments as may be necessary to make Buyer’s title a
matter of public record. Title to any such property which is procured or manufactured by seller shall be
deemed to vest in Buyer upon the earlier of (I) acquisition or completion of manufacture by seller or (II)
payment for the same by Buyer. Seller shall keep all Buyer-furnished property separate from all other
property and clearly marked to show Buyer’s ownership and shall do all things necessary to preserve Buyer’s
title thereto, free and clear of all encumbrances. Seller shall, upon completion of its receipt and, if necessary,
installation of all Buyer-furnished property, submit to Buyer an itemized inventory showing the description,
location, and identifying marks of each item or group of similar items included among such property. Buyer
shall have the right, at such reasonable times as it may choose, to enter Seller’s premises and inspect any
and all such property. Should Seller fail to perform the duties imposed upon it by this section (b) or should
Buyer at any time have reason to believe that its title to, or right to the possession of any Buyer-furnished
property is threatened, Buyer shall have the right in addition to any other remedies provided by law, to enter
upon Seller’s premises and remove any or all such property, with or without the decree of order of any court.
Upon completion, termination, or cancellation of this order, Seller shall, on the request of Buyer, properly pack
any or all such property and ship the same, F.O.B Seller’s plant, to such destination as my be designated by
buyer (c) Seller shall at its own expense, perform all maintenance work, repairs, and replacements which may
be necessary with respect to any Buyer-furnished property so that the same may remain suitable for the sue
contemplated hereby and may, at the time required by this order, be returned to Buyer in as good condition as
when received, except for reasonable wear and tear and for any consumption of materials necessarily
resulting from their use. Seller shall segregate and collect in one location all Buyer-furnished property which
is not actually contained in the finished parts and shall dispose of same as buyer may direct, except that the
value of chips and cuttings shall be taken into consideration by Seller in establishing its price they shall be
used or disposed of as Seller may elect. Seller shall give Buyer prompt written notice of any Buyer-furnished
property which has been supplied by Buyer to Seller and which, upon delivery to Seller, is found to be
defective, and the correction or replacement of such defective property shall be accomplished at Buyer’s
expense. In such manner as Buyer may direct in writing. (d) The risk of or damage in any and all Buyerfurnished property shall be upon Seller from the time when the same is delivered to it, or, in the case of
property procured or manufactured by Seller from the time when title to the same vests in Buyer until such
property is returned to Buyer in the manner required hereunder. (e) Buyer shall not be liable for loss, damage,
detention, or delay resulting from causes beyond its control, with respect to any Buyer-furnished property to
be delivered by it to Seller, and Seller’s acceptance of any such property upon delivery shall constitute a
waver of all claims for delays. (f) Seller shall assume and indemnify Buyer against any and all liability for
damage to property or injury to or death of persons arising from or incidental to the presence of use of Buyerfurnished property, whether such damage, injury, or death be caused by defects in the property; negligence in
use thereof, or otherwise.
16. Occupational Safety and Health Act of 1970. Seller warrants that any and all equipment and material
delivered for or to Buyer or its designee and/or any and all work performed for Buyer on its premises or the
premises of its customer under this order shall comply with all requirements of the Occupational Safety and
Health Act of 1970, as the same may be amended from time to time and including all regulations adopted
pursuant to such Act, and shall comply with all requirements of any applicable health or safety statute or
regulations of any state or local government agency having jurisdiction in the location to which such
equipment is to be shipped, or such work is to be performed, pursuant to this order. The foregoing provision
shall not be deemed to limit any other duty of the Seller to comply with statues, orders, rules, or regulations.
17. Toxic Substances Control Act of 1976. Seller warrants that each and every chemical substance
delivered under this purchase order shall, at the time of sale, transfer or delivery, be on the list of chemical
substances complied and published by the Administrator or the Environmental Protection Agency pursuant to
Section 8(b) of the Toxic Substance Control Act. (Public Law 94-469).
18. Subcontracts Under Government Contracts and Equal Employment Opportunity. (a) When the
products or services to be delivered or performed hereunder are for the purpose of enabling Buyer to perform
a government contract or subcontract there under, Seller shall comply with all applicable provisions of the
attached Appendix incorporated herein and made a part of this agreement. (b) All subcontractors, vendors
and suppliers are hereby notified that it is the policy of TECO-Westinghouse Motor Company to provide equal
employment opportunity and to adhere to federal, state, and local laws pertaining thereto. It is required that
appropriate action be taken on the part of all TECO-Westinghouse Motor Company’s subcontractors, vendors,
and suppliers to insure adherence to such laws.
19. Work on Buyer’s Premises. When Seller will send its employees onto Buyer’s premises during the
performance of this order, additional supplementary terms shall be a part of this order, whether or not
attached hereto. (Buyer will furnish copies on request.)
20. General. This order shall be governed by and construed in accordance with the laws of the State of
Texas. The titles of the articles set forth above are for convenience only and shall not be applied to limit or
restrict the meaning of the same.
21. Authority. Wherever the word “Buyer” appears in these Terms and Conditions with respect to
authorization for such items as (I) assignment, subcontracting (II) substitutions, extras (III) changes, and (IV)
termination, cancellation, the word is deemed to mean, and only mean, Buyer’s Purchasing Department. No
other person or department or Buyer is so authorized to act. Claims by Seller for adjustments, increases and
increments to price or for added costs resulting from the forgoing items will not be allowed unless the said
authorization shall have been duly granted in writing prior to implementation by Buyer's purchasing
department.
22. Mediation and Arbitration. All disputes, controversies or claims, whether sound in contract, tort, or
otherwise, arising out of or relation to this order, or the breech thereof, shall first be resolved by Buyer and
Seller through mediation. If Buyer and Seller are unable to reach a settlement of their disputes within thirty
days, the disputes shall be finally settled by a binding arbitration at Austin, Texas in accordance with the rules
of the American Arbitration Association then in force.
23. Environmental Protection. Seller represents and warrants that it shall perform all its obligations under
this order in full compliance with any and all applicable executive orders, federal, state, municipal, and local
environmental laws, regulations, rules, and ordinances. Such federal laws shall include, but not limited to,
Clear Water Act (as amended), Clean Air Act (as amended), and Resource Conservation and Recovery Act
(as amended). From time to time, at Buyer’s request, Seller shall provide certificates to Buyer in a form and
substance acceptable to Buyer, indicating Seller’s compliance with this article.
12. Warranty. Seller expressly warrants that the products or services to be delivered or performed
hereunder will comply with the description set forth or incorporated by reference herein, will be free of defects
in workmanship or material, will be merchantable, and will be fit for such purposes as are expressed in, or
reasonable inferable from, the specification, drawings, or other descriptions which are a part of this order.
24. Indemnification. Seller shall defend, indemnify, and hold harmless Buyer, its directors, officers,
employees, agents, representatives, successor and assigns against and from any and all claims, suits, losses,
damages, expenses, and liabilities (including reasonable attorney fees, court costs, and other professionals)
arising out of, or in connection with this order, due to any act or omission of Seller, its employees, agents, or
subcontractors which contributes to (i) any bodily injury, sickness, disease, or death; (ii) damage or
destruction to tangible or intangible property; or (iii) any violation of any law, statute, ordinance or regulation.
13. Liens. Seller shall deliver the products which are the subject matter of this order to Buyer free and clear
of all liens, claims and encumbrances.
11/5/13
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