Terms and Conditions
1. INSTRUCTIONS. Acknowledge receipt and acceptance of this Purchase Order IMMEDIATELY in accordance with paragraph 2 below. Purchase Order number is in the upper right-hand corner of this Purchase Order.
All shipments are to be made as noted on the face of the order and notices sent to Consignee. A NOTICE must be sent to Consignee covering carload and truckload shipments as soon as material has been forwarded, giving number of order, kind of material, shipper's name, car number and initials and routing. Enclose shipping memorandum in each package or tack same inside each car door. For less than carload and truckload shipments, indicate order numbers on all material or packages and packing slips and Bills of Lading, in space provided on the blanks of the various railroad, truck and express companies.
IMMEDIATELY upon shipping, mail Purchaser two (2) copies of tally and shipping memorandum.
2. ACCEPTANCE. Seller shall accept this order and agree to the terms hereof: (i) furnishing Purchaser with written acceptance, or (ii) performance by Seller in accordance with this order. However, the receipt from Seller of an acceptance, Purchaser’s receipt of any invoice or any document purporting to be an acceptance of this order, or receipt of Goods shipped or work performed under this order or payment therefor, does not constitute an assent by Purchaser to any terms which are different from or additional to these Terms and Conditions, unless expressly assented to in writing by Purchaser. This order is revocable at any time prior to acceptance.
3. MODIFICATION. No change or modification of this Purchase Order shall be made without Purchaser's specific written consent.
4. FABRICATION. Seller shall obtain, fabricate or manufacture the material, equipment, supplies and other goods described in the Purchase Order (“Goods”) according to the terms herein and any changes or modifications made pursuant thereto. Unless otherwise authorized in writing by Purchaser, Seller shall not fabricate in advance of time necessary to permit shipment on required delivery dates.
5. PRICE. Purchaser shall pay Seller, for the satisfactory performance of Seller’s obligations hereunder, the amount specified in the Purchase Order (“Price”), subject to additions and deductions as provided under this Purchase Order. The Price and all unit prices shown in the Purchaser Order shall be deemed to include all costs of and compensation for Seller’s performance hereunder. If Price is not stated in this order, the Goods and related services ordered hereunder shall be billed at the price last quoted or at the prevailing market price, whichever is lower. If prices in effect on the date of this order are reduced prior to date of shipment or billing, the Goods and services subject to this order shall be billed at such lower price. The agreed Price of this Purchase Order is not subject to increase for any reason whatsoever, including without limitation, changes in the cost of any items to be furnished and/or installed hereunder or increases in wages.
6. DATE REQUIRED (DELIVERIES). The Date Required shown on the Purchase Order is the date Goods are required at the delivery location shown and may be changed by Purchaser from time to time to correspond with the progress of the project for which the Goods were ordered hereunder, as indicated in the Project Designation space or to correspond with Purchaser's needs. Purchaser may change the Date Required to any date upon thirty days’ notice for those portions of this order with a Date Required of six months or less from date of this order. If no Date Required is shown, Purchaser shall fix a Date Required by giving Seller (i) thirty days’ notice for deliveries required within the six-month period following said notice, and (ii) sixty days’ notice for deliveries required beyond the six-month period following such notice.
7. HOLD ON DELIVERY. Purchaser may direct Seller, from time to time, to hold and store all or any part of the Goods to be delivered hereunder and to await further delivery instructions from Purchaser. In the event Seller holds and stores all or a substantial part of any completed order for longer than one hundred eighty (180) days, Purchaser will pay Seller a storage fee at a rate comparable to that charged by warehouseman for storing similar size and type Goods on similar premises, for the time the Goods are stored after the initial one hundred eighty days.
8. DELAYS. Time is of the essence in Seller’s delivery of the Goods under this Purchase Order. If Seller shall fail, refuse or delay the delivery of any or all items within the time specified by Purchaser, Purchaser shall have the right to cancel all or any part of this order upon two (2) calendar days written notice to Seller and obtain substituted performance in a commercially reasonable manner and offset or recover against Seller the cost thereof. If the Project Designation space on the Purchase Order is completed, then Purchaser has entered into a contract to furnish the specific Goods ordered hereunder for said Project (“Contract Documents”). Seller understands and acknowledges that Purchaser’s maintenance of its construction schedule on said Project depends on timely receipt of the Goods and it is therefore essential that Purchaser be advised immediately of any circumstances which could delay the delivery of the Goods (or any portion thereof) in accordance with the schedule by telephone or telefax, followed by a written notice confirming such fact within two (2) calendar days after the commencement of any such delay so that action may be taken to mitigate the consequences of any such delay and arrangements for alternative solutions can be made. The Seller agrees that IF THE GOODS ORDERED HEREUNDER ARE NOT DELIVERED BY SELLER IN SATISFACTORY CONDITION AT THE TIME AND IN ACCORDANCE WITH PURCHASER'S INSTRUCTIONS AND PURCHASER PAYS OR INCURS ANY LIQUIDATED DAMAGE, PENALTY OR OTHER DAMAGES, SELLER SHALL IMMEDIATELY INDEMNIFY AND HOLD HARMLESS PURCHASER THEREFORE.
9. CARTAGE, ETC. No charge for packing, cartage, drayage will be allowed except as stated herein.
10. SHIPMENT. Seller shall give Purchaser prompt notice of all shipments.
11. PAYMENT. Purchaser shall submit invoices in DUPLICATE (unless otherwise instructed, immediately following shipment) priced and extended on a monthly statement no later than the FIFTH of the month following shipment of Goods. Submit SEPARATE invoices for EACH and EVERY SHIPMENT. Unless otherwise agreed, payment of invoices will be made within Forty Five (45) days after receipt of Goods. Under no circumstances shall Purchaser pay any late, interest, carrying or other charges with respect to any amounts invoiced to Purchaser for the Goods ordered hereunder.
Purchaser reserves the right to withhold, as an additional reserve and without limiting its other rights and remedies, an amount sufficient: (a) to defend , satisfy and discharge any claim that Seller has failed to make payment for labor, services, materials, equipment, taxes, or other items or obligations furnished or incurred in connection with the Goods or has caused damage to the Goods; (b) to reimburse Purchaser for any backcharges incurred as a result of any act or omission by Seller hereunder; (c) to protect Purchaser from possible consequences of any other breach or default by Seller hereunder; or (d) to secure Purchaser with respect to any breach or default by Seller or its affiliates, parent company and subsidiaries under any other agreement.
12. CHANGES. Seller agrees to be bound by changes to the Contract Documents to the same extent that Purchaser may be bound thereby. Upon request of Purchaser, and in time and manner sufficient to permit Purchaser to comply with its obligations under the Contract Documents, Seller shall submit a written proposal for any applicable Price and time adjustment attributable to any change to the Goods, detailed as Purchaser may require, supported by and conforming to the requirements of the Contract Documents. Seller hereby expressly waives any claims for extras, additional charges, or any increase in the Price except as expressly agrees on in writing in advance between Purchaser and Seller. Unless Purchaser and Seller have agreed in writing in advance to an increase in the Price, no claims for any amounts in excess of the Price shall be valid and Seller hereby waives any such claims.
13. QUANTITY. The specific quantity ordered must be delivered in full. Delivery of any unauthorized quantity is subject to Purchaser's rejection, and such Goods shall be held at Seller's risk. Purchaser may return such Goods at Seller's risk, and all transportation charges to and from the original destination shall be paid by Seller.
14. QUALITY. Seller expressly warrants that all of the articles, materials and work covered by this order shall (i) be new unless otherwise specified, (ii) conform to the specifications, drawings, samples or other descriptions either contained herein and/or furnished by Purchaser and (ii) be of good quality, material and workmanship and free from defects. Seller further warrants that said articles, materials and work, if not ordered to Purchaser's specifications, shall be fit and sufficient for any specific purpose made known to Seller by Purchaser. This guaranty is in addition to all warranties under law, and is not in derogation of Purchaser’s contractual rights. Seller guarantees that all labor and materials used in the performance of this Purchase Order will meet the requirements of all governmental authorities and any Project specifications.
15. INSPECTION AND ACCEPTANCE. Inspection and tests of the Goods by Purchaser may, at Purchaser's option, be at Seller's plant and/or at the point of destination. No inspection or acceptance of, or payment for, Goods made by Purchaser shall constitute a waiver of any warranties hereunder or of any action against Seller for breach of such warranties.
16. INDEMNITY. To the full extent permitted by law, Seller agrees to defend, indemnify and save harmless Purchaser, as well as any other parties which Purchaser is required under the Contract Documents to defend, indemnify and hold harmless, and their agents, servants and employees (the “Indemnitees”), from and against any claim, cost, expense, or liability (including attorneys’ fees, and including costs and attorneys’ fees incurred in enforcing this indemnity), attributable to bodily injury, sickness, disease, or death or to damage to or destruction of property (including loss of use thereof), caused by, arising out of, resulting from or occurring in connection with the Goods, whether or not caused in part by the active or passive negligence or other fault of a party indemnified hereunder; provided, however, Seller’s duty hereunder shall not arise if such injury, sickness, disease, death, damage, or destruction is caused by the sole negligence of party indemnified hereunder. Seller’s obligation shall not be limited by the provision of any worker’s compensation act insurance.
17. INSURANCE. Seller shall at all times and at Seller's cost, maintain a Comprehensive General Liability Policy including bodily injury and property damage coverage and containing a Broad Form Contractual Liability Endorsement which specifically covers the indemnity under this paragraph and the obligation Seller has accepted hereunder. This Comprehensive General Liability Policy shall be specifically endorsed to name Purchaser as an additional insured.
18. COMPLIANCE. Seller shall, at its own expense, obtain all necessary licenses and permits pertaining to the Goods and comply with all statutes, ordinances, rules, regulations and orders of any governmental or quasi-governmental authority having jurisdiction over the Goods, including, but not limited to, those relating to safety and the environment.
Seller shall promptly correct any violations of such statutes, ordinances, rules, regulations and orders committed by Seller, its agents, servants and employees; and Seller shall receive and respond to, and shall defend, indemnify and save harmless Purchaser, as well as anyone to whom Purchaser is obligated, and their agents, servants and employees from and against any loss, liability, or expense arising from any such violations and any citations, assessments, fines, or penalties resulting therefrom.
Seller shall comply with the provisions of the Fair Labor Standards Act of 1938, as amended, the Occupational Safety and Health Act of 1970, and all other applicable Federal, state and local laws, regulations, rules and ordinances. This agreement shall be interpreted under the parties' rights and remedies governed by the Uniform Commercial Code of Illinois.
19. TAXES. Unless otherwise stated, the prices do not include sales, use, excise and similar taxes applicable to the Goods and/or services furnished hereunder or the materials used in the manufacture thereof.
20. PATENTS. Seller warrants that the Goods furnished under this order do not infringe any patent rights. Seller shall indemnify and hold harmless Purchaser, its affiliates and their customers from losses, expenses (including attorneys' fees), claims or liability of any nature arising out of the infringement or alleged infringement of any patent on account of the manufacture, sale or use of any Goods furnished hereunder except where compliance by Seller with specifications prescribed by and originating with Purchaser constitutes the sole basis of infringement or alleged infringement. Seller, at its expense, agrees to defend any suit brought or claim asserted against Purchaser, its affiliates and their customers on account of any such infringement or alleged infringement upon being notified in writing thereof by Purchaser. If the use of such Goods is enjoined, Seller shall at its expense make every reasonable effort to obtain for Purchaser, its affiliates and their customers, a license to continue to use such Goods. If after a reasonable time Seller is unable or fails to obtain such license, Seller shall, at its expense, either replace such Goods with equivalent non-infringing Goods or modify such Goods in a manner acceptable to Purchaser so that they become equivalent, non-infringing Goods. If Seller fails or is unable to do any of the above, Seller shall refund to Purchaser the money or other consideration paid therefore.
21. CANCELLATION. Purchaser may cancel all or any part of this order at any time without notice of any kind, after acceptance and before complete delivery is made, upon the happening of any of the following: Seller becomes insolvent or fails generally to pay its debts as such debts become due; the application by Seller for the appointment of receiver, trustee or custodian for Seller or any part of its assets; or the execution by Seller of an assignment for the benefit of creditors.
22. EXCUSE OF PERFORMANCE. The terms and provisions of Section 2-615 of the Uniform Commercial Code notwithstanding, the occurrence or existence of the following events and circumstances shall not excuse Seller from the performance of any of its obligations hereunder: (i) any adverse change in the cost or availability of raw materials, supplies or work in process from the date of this order to the Date Required; (ii) fires, floods, explosions, accidents or breakdowns; (iii) riots, strikes, slowdowns or other concerted acts of workmen, whether direct or indirect; and (iv) any other cause similar to any of the foregoing.
23. WAIVER. No waiver by Purchaser of any breach of any provision of this order shall constitute a waiver of any other breach or provision. No act, conduct or failure to act of Purchaser shall constitute a waiver of any provision contained herein unless such waiver is in writing, executed by Purchaser and delivered to Seller.
24. REMEDIES. If Seller at any time (a) fails to supply the materials, equipment, and other things required of it in sufficient quantities and of required quality to perform its obligations hereunder with the skill, conformity, promptness and diligence required hereunder; or (b) fails in the performance or observation of any warranty, condition or other terms contained in this Purchase Order, Purchaser shall have all the rights of an aggrieved Purchaser under the Uniform Commercial Code of Illinois or other applicable law. In addition to any other rights and remedies contained herein or in any other agreements between the parties, Purchaser shall, after giving Seller notice of default and forty-eight (48) hours within which to cure, have the right to exercise, in its discretion, any one or more of the following remedies: (i) require Seller to promptly correct or replace the same at Seller's expense; (ii) attempt to remedy the default by whatever means Purchaser deems necessary or appropriate, including but not limited to correcting, furnishing, delivering, or otherwise completing the Goods, or any portion thereof, by itself or through others and setting off or deducting the cost thereof (plus an allowance for administrative burden equal to fifteen percent (15%) of such costs) from any monies due or to become due to Seller hereunder; (iii) recover from Seller all losses, damages, penalties and fines, whether actual or liquidated, direct or consequential and all reasonable attorneys' fees and other expenses suffered or incurred by Purchaser by reason of or as a result of Seller’s default; or (iv) cancel all or any portion of this order. If Purchaser elects to cancel, Purchaser shall hold any Goods in its possession affected by the cancellation at Seller's risk, to be disposed of in accordance with applicable law, and Seller shall refund any payments made on account of the canceled Goods. The foregoing rights and remedies shall be cumulative, and none exclusive, to the extent permitted by law. Any default by Purchaser shall be deemed waived unless written notice shall have been received by Purchaser within five (5) days of the occurrence thereof.
25. SPECIFICATIONS. Goods ordered according to Purchaser's drawings, designs and specifications are to be manufactured in accordance with the latest issue of such drawings, designs and specifications and such drawings, designs and specifications are to be considered a part of this order.
26. SPECIAL TOOLS. No charge shall be made for patterns, pattern equipment, jigs, dies and fixtures or special apparatus used in the manufacture of the articles shown on this order unless written authorization is given by Purchaser.
27. MATERIALS, EQUIPMENT FURNISHED BY PURCHASER. All writings, drawings and photographs furnished or otherwise provided by Purchaser, as well as all patterns, dies, jigs, fixtures or special apparatus furnished by Purchaser, shall be treated as confidential and remain the exclusive property of Purchaser. Such material and equipment shall not be used to the detriment of Purchaser and disclosure to third parties of information derived from such documents is forbidden. All such documents and reproductions thereof, as well as equipment, shall be held by Seller in accordance with Purchaser's instructions and shall be returned promptly by Seller to Purchaser upon Purchaser's demand thereof.
28. ASSIGNMENT. Any transfer or assignment (by contract, operation of law or otherwise) of the obligations of Seller hereunder upon acceptance of this order shall be void and automatically be deemed a material breach of this order and relieve Purchaser from any further obligations hereunder.
29. NOTICES. All notices required to be sent hereunder shall be in writing via certified mail to Seller at the invoice address shown on the Purchase Order or at such other addresses as the parties may designate to each other by like notices.
30. BUY AMERICAN ACT. If required by the conditions stated in this Purchase Order, Seller must comply with provisions of the Buy American Act (41 U.S.C. 10) including, but not limited to, Federal Acquisition Regulations 52.225-1, 52.225-3, 52.225-5, as applicable.
31. TITLE-SECURITY INTERESTS. This Purchase Order is for an entire and indivisible performance set forth in the Purchase Order, notwithstanding provision for partial deliveries or payment in installments. In the event that full or partial payment is made by Purchaser to Seller prior to delivery of all the Goods, title to all Goods identified to this Purchaser Order at the time of such payment or thereafter shall pass to Purchaser, and Seller shall be deemed a bailee of all items remaining in its possession. Additionally, Seller grants to Purchaser a security interest in all Goods which are or may become identified to this Purchaser Oder at any time, which security interest shall be in addition to all other rights of the Purchaser under this Purchaser Order or applicable laws. All Goods which Seller has, or comes to have, an interest and which either conform to the Project specifications, or which could be incorporated into conforming Goods by Seller’s manufacturing processes, shall be deemed identified as Goods to which this Purchaser Order refers from the date of this Purchaser Order.
32. DISPUTES. Any disputes arising in connection with this Agreement shall be finally settled by arbitration under the Rules of Arbitration of the International Chamber of Commerce by one arbitrator appointed in accordance with said rules. The arbitration shall take place in Rock Island County, Illinois. The language of the arbitration proceedings shall be English. Seller shall continue with the diligent performance of this Purchase Order and follow and abide by directions and instructions issued by Purchaser during the pendency of any dispute, including dispute resolution or arbitration.
33. MISCELLANEOUS. The titles to each of the provisions hereof are for convenience only and are not substantive or to be used in the interpretation thereof. For purposes of this order and as used in Uniform Commercial Code Section 2-501, the Goods ordered hereunder shall be deemed to be "identified to the contract" upon the earlier to occur (i) Seller's commencement of the manufacture of all or any portion of this order, or (ii) Seller's purpose of all or a substantial part of the materials required to perform this order. This Purchase Order, including any documents incorporated herein by reference, embodies the entire agreement of the parties and supersedes all prior negotiations, agreements and understandings relating to the subject matter hereof. The provisions of this Purchaser Order any the Contract Documents are intended to supplement and complement each other. If, however, any provision of this Purchase Order irreconcilably conflicts with a provision of the Contract Documents, the provision imposing the greater duty on the Seller shall govern. Wherever possible, each provision of this Purchase Order shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Purchase Order shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Purchase Order.
KONE Inc. is an Equal Opportunity Employer and in accordance with Executive Order #11246, Section 503 and the Rehabilitation Act of 1973, as amended, and Section 402 of the Vietnam Era Veterans Assistance Act of 1974, as amended, does not discriminate against any employee or applicant for employment because of physical or mental handicap, covered veterans, race, color, religion, sex or national origin, and you shall comply with all such provisions, if applicable. This contract is conditioned upon the fact that Subcontractor has fully complied with the provisions of all applicable federal, state and local laws, regulations, rules and orders. Any provision which is required to be a part of this contract by virtue of any such law, regulation, rule or order is incorporated herein by reference: including but not limited to Executive Order 11246, as amended; Section 503 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 793); Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212), and their respective implementing regulations at 41 CFR part 60; and Executive Order 13465 (Employment Eligibility Verification); and Executive Order 13496 (Employee Rights Under National Labor Relations Act). In addition subcontractor certifies it has not and will not employ child labor in executing work under this contract.
This Purchase Order is conditioned upon the fact that you have fully complied with all applicable provisions of the federal Fair Labor Standards Act of 1938, as amended, in the production and furnishing of the commodities, articles, for products covered by this notice and that you have not and will not employ child labor in filling this order.