CLEAVER-BROOKS SALES & SERVICE, INC.
PURCHASE ORDER TERMS AND CONDITIONS
1. Contract Formation – These Purchase Order Terms and Conditions apply to each purchase order (the “Order”) from Cleaver-Brooks Sales & Service, Inc. ("the Company") to the supplier (“Supplier”) of goods and/or services to the Company. The Order and these Purchase Order Terms and Conditions, which are incorporated into and made a part of such Order, are collectively referred to as the “Contract.” This Contract contains and constitutes the final integrated expression of the complete agreement between the Company and Supplier with respect to the matters contained herein and supersedes all other prior agreements, terms and conditions, whether written or oral, with respect to matters contained herein, and all prior agreements, promises, negotiations, conversations or representations relating to this Contract are merged and integrated into this Contract. Without limiting the foregoing, reference to any Supplier bid, quotation, proposal, or offer is only to incorporate the Supplier's description of goods and services into this Contract, where not in conflict with the Order. No confirming orders or acknowledgments, or other documentation, written or oral, by Supplier modifies, alters, or changes the express written terms of this Contract. Any additional or different terms proposed by Supplier while accepting this Contract, including strikeouts of language or any additional or different terms contained in any Supplier acknowledgement of the Order, will be considered as a proposal by Supplier for a modification of this Contract and will be effective only if expressly accepted in writing by the Company and, if not expressly agreed to in writing by the Company, are deemed waived by Supplier and are deemed objected to by the Company and shall not obligate the Company. Supplier is to sign and return any Order acknowledgement provided by the Company to Supplier, without change except as agreed in writing by the Company. The return of an acceptance copy of the Order signed by Supplier or the shipment of goods or the commencement of the performance of work or services by Supplier is deemed an acceptance by Supplier of the Order only on the terms of this Contract and constitutes Supplier’s agreement to the terms hereunder. No course of dealing, usage of trade or course of performance will supplement any terms and conditions set forth in this Contract. Terms stated in the Order govern these general terms, where in conflict. Company sales to government entities may contain mandatory clauses, applicable to sub suppliers, which will be provided upon request.
2. Price Protection - The goods covered by the Order will be furnished at the price set forth on the Order. If the price is omitted, it is agreed that Supplier’s price shall be the lowest prevailing market price. Unless expressly provided in the Order, deliveries shall be made without charge for boxing, crating, carting or storage and the contract price shall include all applicable federal, state and local taxes and all tooling and transportation charges.
3. Cash Discount - In the event that the Company is entitled to a cash discount, the period of computation will commence on the date of delivery or receipt of a correct invoice, whichever is later. If an adjustment is necessary due to damaged goods, the cash discount period shall commence on the date final approval for payment is authorized.
4. Delivery - Delivery is to be FOB (free on board) INCOTERMS 2010 at Cleaver-Brooks Sales & Service Factory (or at any other destination point designated by the Company). Prices include, and no additions are allowed for, transit preparation, storage, handling, loading, freight collect arrangements, brokerage, and similar charges. Early deliveries or incorrect quantities may be rejected at Supplier risk and expense. The Company may defer delivery for up to 90 days at no charge. Supplier understands and agrees that time is of the essence. Supplier will give the Company written notice within two (2) business days of any event that might cause a delay in the work being performed on a timely basis by Supplier for the Company. Supplier will furnish estimates of the expected delay and its effect on the work and will advise the Company of the steps being taken to eliminate delays. Where the delay is the result of the fault or negligence of Supplier, its subcontractors, or its suppliers or vendors, Supplier agrees to take all measures necessary to maintain the agreed-upon schedule for the completion of the work including working overtime shifts, paying premium time and hiring extra personnel at no cost to the Company. If Supplier fails to deliver any goods or complete any services or work by the schedule date for same as set forth in the Order, then Supplier shall pay to the Company an amount as per diem liquidated damages, and not as a penalty, equal to 1% of the contract price for each business day of delay (up to a maximum of 10% of the contract price), which Supplier shall pay to Company without limiting the Company’s right to cancel this Contract under this Section 4. In addition, if Supplier has not delivered the goods or started or completed performance of the services by the time specified in this Contract (or within a reasonable time if not otherwise specified), the Company reserves the right, in its sole discretion, to cancel this Contract or any part of it and reject delivery of goods or performance of services. In such event, the Company may, in its sole discretion, take over the work and prosecute the same to completion (either by itself or through a third party), in which event Supplier shall be liable to the Company for any costs and expenses incurred by the Company in completion of the work which are in excess of the amount the Company would have paid to Supplier pursuant to this Contract. In all events, Supplier shall be liable to the Company for all losses or damages sustained by the Company as a result of Supplier’s delay (including any claims incurred by the Company from the Supplier’s customers or vendors).
5. Sales/Use Tax - The Company will provide upon request sales tax exemption and use tax direct payment certificates for States where the Company is registered. Sales tax when applicable is the Company’s responsibility.
6. Inspection and Standards - The Company shall have reasonable access without charge to inspect the progress and quality of work wherever it is being done under the Order. Company testing or inspection of such work does not waive any Supplier obligation to conform to the Order. Applicable versions of laws, codes, regulations and standards, whether mandatory by law or as stated in the Order, are those in effect at the time of the Order.
7. Certifications - The Company may require Supplier to provide certifications, needed for the Company to accept Supplier's deliverables, including but not limited to: lien waivers and releases; insurance certifications; progress certifications for milestone payments; materials certifications; third party inspections; and Material Safety Data Sheets for hazardous materials. The Supplier will provide lien waivers upon request following receipt of payment(s).
8. Payment - Unless otherwise stated in the Order, payment terms are Net 45 days from the later of receipt of goods and/or services or receipt of correct invoice. The Company may withhold from payment to Supplier, until such claims are resolved, an amount reasonably sufficient in the circumstances to resolve claims the Company has made against Supplier, or claims third parties have made against the Company in regard to the Supplier. The Company may offset against any obligations to Supplier, the value of any amounts owed for any reason by Supplier to the Company. Supplier intends to protect its lien rights in the event of non-payment.
9. Warranty - Items provided under the Order will be used in, with, or for the production of, Company products. Supplier warranties shall pass to the users of such Company products. Supplier expressly warrants that, during the Warranty Period (defined below), all goods and services covered by the Order shall conform to the specifications, drawings, samples, or other description upon which the Order is based, and shall be fit and sufficient for the purpose intended, merchantable, of good material and workmanship, and free from defects of any nature. Supplier further expressly warrants clear title and the rights to use all intellectual property embodied in the goods. The “Warranty Period” shall mean 12 months from “end user” installation, but not more than 18 months from receipt at or on behalf the Company. Supplier shall be responsible for repairing or replacing all nonconforming goods and services at its sole cost and expense, including all shipping costs to or from Supplier, where the Company gives Supplier notice of same during the Warranty Period. Without limiting the foregoing, if applicable, Supplier shall credit the Company for the price of the parts and pay for all necessary shipments to evaluate any nonconformance or failures. Supplier shall mitigate impacts of such corrections on the Company and its customers. The Company reserves the right to charge all costs arising from nonconforming material to the Supplier’s account. It is the Supplier’s responsibility to ensure that its products meet the specifications provided by the Company. With respect to any goods or services that are repaired or replaced under this Section 9, the warranty for such goods or services shall be for 12 months from the date of such repair or replacement.
10. Intellectual and Industrial Property - Any Confidentiality Agreement already in place with Supplier is to remain in effect during the Order. Supplier may use technical data or any other Information of Company or of its customers, received by Supplier from the Company or derived there from by Supplier (including but not limited to detail design drawings inventions, trade secrets or other improvements), only to perform the Order. Such information is Company property, is not to be disclosed to any third party, and shall be delivered to the Company upon request or upon completion of use for the Order. If Supplier receives inquiries or contacts concerning goods sold by the Company which in any way relate to Supplier deliverables or work under the Order, Supplier promptly shall refer all such inquiries and contacts to the Company, failing which Supplier shall be in default, the Order may be terminated by the Company, and the Company may recover damages arising from unauthorized disclosures.
11. Indemnity - Supplier shall defend, indemnify and save harmless the Company and its shareholders and affiliates and their respective officers, directors, managers, partners, employees, agents. sales representatives and customers (the “Indemnified Persons”), against all damage, liability, claims, losses, costs, expenses, penalties, or fines, including attorneys' and other professional fees, to which the Company may be subjected, arising out of or resulting in any way from Supplier’s performance of any work under the Order or any defect in the goods or services purchased under the Order or from any act or omission of Supplier, its agents, employees or subcontractors with respect to such goods or services or from failure of any of Supplier's warranties or obligations hereunder, in whatever manner the same may be caused, and regardless of whether the same may be caused by or arise out of the joint, concurrent or contributory negligence of any Indemnified Person. Supplier’s indemnification obligations do not extend to the sole negligence of any Indemnified Person.
12. Project Termination - The Company may terminate the Order at any time if its customer terminates the purchase to which the Order pertains and, in such event, the Company will not be required to pay more than the lesser of actual or standard restocking charge, or validated costs for work correctly and timely performed, such amount to become payable when the Company receives the related termination compensation from its customer and the Supplier has delivered information and/or partial work as directed.
13. Remedies - The rights und remedies herein reserved by the Company shall be cumulative und in addition to any other rights or remedies provided by law or equity. A waiver by the Company of any right or remedy hereunder shall not affect any rights or remedies subsequently arising under the same or similar cause.
14. Supplier’s Insolvency or Default - lf (i) the Supplier becomes insolvent or if any petition under any insolvency law is filed by or against the Supplier of if the Supplier makes a general assignment for the benefit of creditors or if a receiver shall be appointed for the Supplier, or (ii) Supplier defaults in the performance of any of its obligations under the Order or hereunder and fails to cure same within three days after receipt of notice of same from the Company, then the Company may cancel the Order. In the event of such cancellation, the Company shall not be liable for any party, including Supplier, for any costs or damages in connection with the Order, except for conforming goods which have been delivered and accepted by the Company prior to the date of cancellation.
15. Force Majeure – The Company shall not be liable for failure to take delivery of goods if such failure is caused by labor disputes, strikes, war, riots, insurrection, civil commotion, fire, flood, tornado, earthquake, storm, embargo or any act of God or any other cause beyond the Company's control. In such event, the Company shall have the option of cancelling undelivered orders in whole or in part.
16. Compliance. - Supplier, if operating within U.S. jurisdiction, warrants its compliance to the following: EQUAL OPPORTUNITY (Executive Order 11246 as amended by Executive Order 11375, 13279,12086, and 12107); EMPLOYMENT OF VETERANS (Executive Order 11701); EMPLOYMENT OF THE HANDICAPPED Revised 02/5/16 (Executive Order 11758 as amended by Executive Order 11867); EMPLOYMENT DISCRIMINATION BECAUSE OF AGE (Executive Order 11141); UTILIZATION OF DISADVANTAGED AND MINORITY BUSINESS ENTERPRISES (Executive Order 11625, Public Law 95-507); OCCUPATIONAL SAFETY AND HEALTH ACT (OSHA) including OSHA Regulations; all requirements for NON-SEGREGATED FACILITIES set forth in 41 CFR Chapter 60-1.8.; each chemical substance constituting or contained in goods delivered under this Purchase Order is on the list of substances compiled and published by the Administrator of the Environmental Protection Administration pursuant to the TOXIC SUBSTANCES CONTROL ACT (P.L92-573) as amended, and the FEDERAL HAZARDOUS SUBSTANCES ACT (P.L. 92-516) as amended and standards and regulations there under; the goods to be furnished hereunder were or will be produced in compliance with the requirements of the FAIR LABOR STANDARDS ACT of 1938, as amended, including Section 12(a).
17. Business Conduct - Company employees may not solicit nor accept significant gifts, entertainment, or other benefits from Suppliers. Supplier shall deal with the Company in an honest and ethical manner and comply with the Company's Code of Business Conduct, hereby incorporated by reference into the Order.
18. Site Work - Supplier shall provide certificates of insurance acceptable to the Company before doing any work at the premises of Company or of its customer: all such work shall be done in compliance to plant safety and security rules for the location. Supplier shall provide all appropriate training and Personal Protective Equipment to all persons doing such work under the Order.
19. Company Property - If Supplier has custody of Company data, material, patterns, tooling, drawings or other Company property, such items are only for Supplier use in performance of work for the Company, and Supplier shall identify, insure, protect and maintain such items, and immediately upon request return same to the Company in good and serviceable condition, excepting only reasonable usage, wear and tear.
20. Claims and Disputes - Supplier shall submit any claims relating to the Order in writing for a decision by the Company, which shall be final unless Supplier appeals same in an explanatory written request to the Company to be considered within 30 days by a conference of the Company's senior executive for the Product Group and an executive nominated by Supplier. Matters not thus resolved shall be jointly submitted to arbitration as follows: (1) any dispute hereunder or with respect to the Order involving the supply of goods or services within the United States which cannot be amicably resolved by the parties, will, if elected by the Company at its sole option, be submitted to non-binding or binding arbitration in accordance with the applicable rules and regulations of the American Arbitration Association (the substantive law of Texas shall apply to any such arbitration, which shall be conducted in Dallas, Texas); and (2) any dispute hereunder or with respect to any Order involving the supply of goods or services outside the United States which cannot be amicably resolved by the parties will, if elected by the Company at its sole option, be submitted to non-binding or binding arbitration in accordance with the applicable rules and regulations of the International Chamber of Commerce and, unless otherwise agreed upon by the parties, the applicable substantive law, language and the location for any such arbitration shall be determined by the arbitrator(s) in accordance with the applicable rules.. For legal or financial purposes only, the Company may confidentially audit Supplier records pertaining to the Order for up to 3 years after delivery.
21. Limitations on Liability - Under no circumstances shall the Company be liable for any indirect, consequential, liquidated, exemplary, punitive, special or incidental damages (including without limitation, increased manufacturing costs, loss of profits or revenues, diminution in value or goodwill) whether such claim is based on contract, negligence, strict liability, tort, warranty or any other basis. The Company’s liability shall, in no event, exceed the applicable purchase price for the Order giving rise to the cause of action.
22. Governing Law/Consent to Jurisdiction – The Order shall be construed and interpreted according to the laws of the state of Texas. The parties agree that venue for any judicial proceeding will be proper in Dallas County, Texas and, subject only to Section above 20, the parties hereby irrevocably submit to the exclusive jurisdiction of the federal and state courts located in Dallas County, Texas