Terms and Conditions of Purchase (Goods)
The term “Purchaser” means CTE, Carolina Tractor & Equipment Company, LiftOne LLC, Power Products & Solutions LLC, its affiliates and subsidiaries (individually and collectively). The term “Vendor” means any individual, corporation, or other entity providing the Goods purchased by or otherwise provided to Purchaser pursuant to this Purchase Order. The term “Goods” means the items, materials, equipment, software, tooling, and/or parts supplied pursuant to this Purchase Order. The term “Work” means (i) the Goods, (ii) any transportation or other services related to the Goods, (iii) any ancillary goods, products or materials related to the Goods, and (iv)any services related to the ancillary goods.
The Terms & Conditions set forth below (“Terms & Conditions”) have been issued to you as a potential Vendor to Purchaser and are the terms and conditions by which Vendor agrees to sell and deliver and Purchaser agrees to purchase and receive the Goods specified on the Purchase Order. Upon acceptance by Vendor of the Purchase Order to which these Terms & Conditions are attached, the Purchase Order and Terms & Conditions shall become a binding contract between Vendor and Purchaser (the “Agreement”).
If Purchaser issues a firm offer to purchase from Vendor pursuant to a Purchase Order, then, in the event of a counteroffer by Vendor, Vendor acknowledges and agrees that a contract does not exist between the parties on the terms proffered by Vendor unless and until Purchaser accepts such counteroffer in writing. Any performance by Vendor prior to written acceptance of the terms of the counteroffer by Purchaser shall be under the terms originally issued by Purchaser and at the sole risk of Vendor.
Except as otherwise stated in this Agreement, Vendor shall submit invoices upon Vendor’s Delivery of all Goods. Each such invoice shall be submitted by Vendor to the location shown in the Purchase Order, and shall include: (i) the Purchase Order number, (ii) an itemization of the specific Goods provided by Vendor; (iii) the applicable date of Delivery for all such Goods; (iv) an itemization of the respective unit prices, if applicable, for which payment or partial payment is invoiced; (v) the total invoice amount; and (vi) the Purchaser’s location to which the Goods have been delivered. If Vendor is providing Goods to Purchaser under more than one agreement, each such agreement shall be invoiced separately.
Except as otherwise stated in this Agreement, Purchaser shall use commercially reasonable efforts to make payment for all Goods provided by Vendor within forty-five (45) days following the later of: (i) the date of Delivery; or (ii) the date of Purchaser’s actual receipt from Vendor, at the location designated above, of an invoice conforming to the requirements set forth at Section “INVOICES” of this Agreement and accurately reflecting the terms and conditions of the Purchase Order to which it relates. Notwithstanding anything herein to the contrary, Purchaser may withhold from payments due or to become due to Vendor: (i) ten percent (10%) of all invoiced amounts pending receipt of any documentation that may be specified in this Agreement, and (ii) an amount sufficient to protect Purchaser completely from any and all breaches, claims, liens, losses, damages or expenses actually incurred or reasonably anticipated to be incurred by Purchaser in connection with any agreement by and between Purchaser and Vendor, including without limitation this Agreement, until the breach, loss, damage or expense has been cured or same has been satisfied, terminated or released to Purchaser’s satisfaction. Notwithstanding anything herein to the contrary, Purchaser shall have the additional right to set-off against payments made to Vendor hereunder for amounts owed by Vendor to Purchaser, whether or not pursuant to this Agreement.
Acceptance of any Goods (“Acceptance”) or any portion thereof by Purchaser shall not relieve Vendor of its obligation to comply in all respects with the requirements of this Agreement. Acceptance is expressly limited to the terms of this Purchase Order. Receipt of Goods does not constitute Acceptance of Goods. Payments for Goods shall not constitute Acceptance of the Goods, either in whole or in part, nor shall any payment be construed as Acceptance by Purchaser of any defective or incomplete Work. All Goods are subject to Purchaser’s right of inspection and rejection. Any such inspection shall not relieve Vendor of its obligations hereunder. Goods that are rejected may be returned to Vendor at Vendor’s expense or retained and corrected at Purchaser’s election. Vendor shall cooperate with Purchaser in determining appropriate method(s) of correction. Vendor shall reimburse Purchaser for all expenses of correcting non-conforming Goods, as well as any and all other expenses arising from or incident to rejection of the Goods.
Modifications proposed by Vendor are expressly rejected and are not part of the Agreement except upon Purchaser’s issuance of a Purchase Order Amendment expressly accepting any such modification. Purchaser may, at any time, by written change order and without notice to Vendor’s surety, if any, make changes in, additions to, or deletions from the Goods to be provided pursuant to this Agreement. If any such change significantly increases or decreases the time required for the performance of Vendor’s obligations hereunder, an equitable adjustment shall be made in the Vendor’s delivery obligations. If this Agreement is being performed on a fixed-price basis, and if any such change significantly increases or decreases the cost to Vendor of performing the Work, then there shall be an equitable adjustment in the compensation to Vendor for the Work (the “Compensation”). Vendor shall not be entitled to an adjustment in the rate of Compensation due for any change if this Agreement is being performed on a cost-reimbursable or time and materials basis.
Vendor is responsible, as a bailee, for loss of, and damage to, any property owned or controlled by Purchaser and possessed by Vendor for use in carrying out this Agreement (“Purchaser’s Property”), including responsibility for loss and damage which occur despite Vendor’s exercise of reasonable care, but excluding normal wear and tear. Vendor shall (a) properly house and maintain Purchaser’s Property on Vendor’s premises; (b) mark Purchaser’s Property “Property of CTE,” or as otherwise required by Purchaser; (c) refrain from commingling Purchaser’s Property with the property of Vendor or with that of any third party; and (d) maintain Purchaser’s Property as personal property. Purchaser’s Property shall not be used by Vendor for any purpose other than the performance of the Agreement. Vendor authorizes Purchaser (at Purchaser’s sole option) to file financing statements evidencing Vendor as the debtor/bailee and Purchaser as the secured party/bailor of Purchaser’s Property. Vendor will indemnify and defend Purchaser against claims or liens adverse to Purchaser’s ownership of Purchaser’s Property. Purchaser shall have the right to enter Vendor’s premises at reasonable times to inspect Purchaser’s Property and Vendor’s records pertaining thereto and to take possession of Purchaser’s Property. Upon Purchaser’s request, Vendor shall immediately deliver Purchaser’s Property to a carrier selected by Purchaser, properly packed and marked in accordance with the requirements of the carrier and Purchaser, at Purchaser’s option (i) F.O.B. Carrier, Vendor’s facility or (ii) F.O.B. Purchaser’s facility, freight collect. Vendor waives, to the extent permitted by law, any lien (whether mechanics, moldbuilder, molder, special tool building, UCC or otherwise) or other rights that Vendor might otherwise have on any of Purchaser’s Property.
PACKING, MARKING, AND SHIPPING
Vendor shall pack and ship the Goods in accordance with the requirements of Purchaser and the carrier transporting such Goods. Vendor shall mark each package in accordance with Purchaser’s instructions and any additional instructions of the carrier. Vendor will reimburse Purchaser for costs incurred as a result of improper packing, marking, routing, or shipping. Vendor shall not charge separately for packing, marking or shipping unless Purchaser authorizes such charges in writing, in which case Vendor shall add such charges to its invoice as a separate item and attach supporting data. Purchaser may require shipment of the Goods by a more expeditious method of transportation if Vendor fails to meet shipping deadlines set forth in the Purchase Order or shipping release. Vendor shall bear the cost difference of such expedited transportation unless such failure is due to a Force Majeure event. Vendor shall bear the risk of loss for any loss, damage or injury which results from, or occurs during, shipment of the Goods.
EXPORT / IMPORT
For each international shipment, Vendor shall include a price invoice with the master packing slip and upon request shall furnish all other required export/import documents. Export credits and customs drawbacks shall belong to Purchaser or its designee. Upon request, Vendor shall furnish in satisfactory form all documents required to obtain export credits and customs drawbacks or to satisfy any other government requirement, including certificates that identify the country of origin of the materials used in the Goods and the value added in each country.
Vendor agrees to indemnify, save harmless and, at Purchaser’s sole option, defend Purchaser and Purchaser’s shareholders, directors, officers, employees and agents from and against all claims, demands, damages, costs, losses, liabilities, causes of action, suits, fines, penalties and expenses (including reasonable attorneys’ fees through final appeal), whether at law, in equity, or administrative in nature, in any manner arising out of, resulting from, caused by or in connection with: (i) this Agreement, (ii) Vendor’s breach of this Agreement, (iii) personal injury or death, (iv) property damage, and (v) violation of federal, state, or local law, regulation, rule or ordinance pertaining to the Work. Nothing herein shall be construed as making Vendor liable for any injuries, deaths or damage caused by the gross negligence or willful misconduct of Purchaser.
Before beginning performance, Vendor shall provide certificates of insurance to Purchaser evidencing Vendor's coverages and limits required by this Agreement. Vendor waives and will require its insurers to waive all rights of recovery against the Purchaser, its shareholders, directors, officers and employees, whether in contract, tort (including negligence and strict liability) or otherwise. Vendor and Vendor’s insurer agree that coverage afforded Purchaser as additional insured by each of these policies is primary and not in excess over or contributory with respect to any other similar insurance maintained by Purchaser. These policies may not be canceled without giving 30 days prior written notice to Purchaser. Vendor shall obtain and maintain, and require its subcontractors to obtain and maintain, the following minimum policies of insurance during the term hereof:
|Commercial General Liability
|Automobile Liability (All owned,
Hired, Non-Owened Vehicles)
C/O Procurement Department
PO Box 1095
Charlotte, NC 28201
Purchaser will be listed as additional insured on the required policies shown in items A and B. A waiver of subrogation will be provided in favor of the Purchaser on the required policies listed in items A, B and D. Purchaser reserves the right to request additional insurance limits, policies or endorsements based on the goods provided by the Vendor. The non-receipt of a Certificate of Insurance does not invalidate the insurance requirements stated herein.
REPRESENTATIONS AND WARRANTIES
Vendor warrants and represents to Purchaser that each item of Goods provided pursuant to this Agreement shall: (i) strictly conform to the specifications, drawings, descriptions, and other requirements of this Agreement, (ii) be free from defects, latent and patent, in workmanship, materials and design, (iii) be merchantable, (iv) be fit for its intended use and purpose, (v) be free of any lien or encumbrance of any third party, and (vi) be new. Unless otherwise stated in the Purchase Order, no surplus, rebuilt, reconditioned, or used Goods shall be provided. Time is of the essence with respect to any time for performance or completion stated in the Purchase Order.
Neither Purchaser nor Vendor shall be responsible or liable for, or deemed in breach of this Agreement because of, any delay in the performance of their respective obligations pursuant to this Agreement due solely to circumstances beyond the reasonable control and without the fault or negligence of the party experiencing such delay (a “Force Majeure” event). Force Majeure is defined as acts of God; unusually severe weather conditions; strikes or other labor difficulties; war; riots; requirements, actions or failures to act on the part of governmental authorities; inability despite due diligence to obtain required permits or licenses; accident; fire; damage to or breakdown of necessary facilities; or transportation delays or accidents; provided, however, the party experiencing the Force Majeure shall exercise due diligence in endeavoring to overcome any Force Majeure impediment to its performance, but settlement of its labor difficulties shall be entirely within its discretion; and provided further that the party experiencing the Force Majeure shall promptly give oral notification to the other party. Such oral notification shall be confirmed in writing within five (5) days after such party has learned of the Force Majeure and every thirty (30) days thereafter, and such written notification shall give a full and complete explanation of the Force Majeure delay and its cause, the status of the Force Majeure, and the actions such party is taking and proposes to take to overcome the Force Majeure. The party experiencing the delay shall undertake reasonable measures to make up for the time lost through delay without additional Compensation. If performance by either party is delayed due to Force Majeure, the time for that performance shall be extended for a period of time reasonably necessary to overcome the effect of the delay, subject, however, to Purchaser’s right to terminate this Agreement in whole or in part.
Purchaser may, without cause, terminate this Agreement at any time, in whole or in part, by providing written notice of termination to Vendor specifying the Work to be terminated (the “Terminated Work”). Such termination is to be effective as specified in Purchaser’s notice but not earlier than one (1) day after Vendor’s receipt of such notice. Upon receipt of such notice, Vendor shall: (i) discontinue the Terminated Work in accordance with the Purchaser’s instructions, (ii) thereafter perform only such portion of the Work not terminated, (iii) not place further orders or enter into further subcontracts for Goods relating to the Terminated Work, and (iv) terminate all existing orders and subcontracts insofar as such orders and subcontracts relate to the performance of the Terminated Work. Upon termination, Vendor shall deliver to Purchaser those Goods for which Purchaser has made payment, including all Goods in manufacture, but not yet completed and all related goods, services, information and documentation, whether or not in final form, created by Vendor or its subcontractor prior to termination. Within thirty (30) days after the effective date of termination, or such later date as may be mutually agreed to by the parties, Vendor shall provide Purchaser with a detailed summary and supporting documentation that identifies costs incurred by Vendor related to the termination (the “Termination Costs”). The Termination Costs shall be subject to audit and verification by Purchaser, such audit to be initiated, if at all, within ninety (90) days after Purchaser receives from Vendor the summary and supporting documentation of the Termination Costs. Prior to determining the amount of any amounts actually due to Vendor as determined by Purchaser (the “Termination Charge”) which may be owed by Purchaser hereunder, Termination Costs shall be reduced by the total payments previously made to Vendor that were allocable to the completed portion of the Work and by any claims Purchaser may have against Vendor in connection with the completed portion of the Work. If the payments previously made to Vendor by Purchaser exceed the Termination Costs as determined in accordance with the preceding sentence, Vendor shall promptly pay the difference to Purchaser, and no Termination Charge shall be owed by Purchaser. Upon termination and payment by Purchaser of any Termination Charge, if one is owed, Purchaser shall have no further obligation to Vendor with respect to the Terminated Work.
INTELLECTUAL PROPERTY RIGHTS
Except as otherwise stated in this Agreement, neither party transfers to the other party any patent, trade secret, trademark, copyright or other intellectual property right owned by such party (“Intellectual Property Rights”). Vendor grants to Purchaser and its affiliated companies a nonexclusive, royalty free, irrevocable license of Vendor’s Intellectual Property Rights to: (i) use, sell, and modify Goods and incorporate the Goods into other products for use or sale; and (ii) in the case where Vendor is unable to perform or has breached this Agreement, to make Goods or have Goods made by an alternate source for the remaining duration of the Agreement or as otherwise mutually agreed to in writing. Purchaser may share with third parties any drawings or other information provided by or through Vendor and related to the Goods in such instance. All works of original authorship, ideas, inventions (whether patentable, patented or not), know-how, processes, compilations of information, and other intellectual property created by Vendor for which the development was paid for by Purchaser (collectively, “Proprietary Materials”), and all Intellectual Property Rights in such Proprietary Materials, are owned by Purchaser. Vendor agrees that all such Proprietary Materials created by Vendor for which the development was paid for by Purchaser are “works made for hire” as that term is used in connection with the U.S. Copyright Act. Vendor shall be solely responsible for the defense or settlement of every claim of infringement of any present or future patent, copyright, industrial design right, or other proprietary right that results from the sale or use of the Goods.
In connection with the Purchase Order, Vendor may have access to Purchaser’s confidential information, including, without limitation inventions, developments, know-how, specifications, business plans, results of testing, systems, financial information, product information, methods of operation, customer information, supplier information and compilations of data (“Confidential Information”). Vendor shall use Purchaser’s Confidential Information only for the purposes contemplated under this Agreement and shall not disclose it to third parties or otherwise use it for its own advantage or to Purchaser’s detriment. Confidential Information shall not include information which: (a) is or becomes publicly available without breach of this Agreement by Vendor; (b) was known to Vendor prior to its receipt from Purchaser as evidenced in writing; (c) is developed by Vendor independently of its access to Purchaser’s Confidential Information; or (d) is required to be disclosed by law or court order. Vendor is permitted to disclose Purchaser’s Confidential Information to its employees, agents and authorized subcontractors (“Agents”) on a need to know basis only, provided that such Agents have written confidentiality obligations to Vendor no less stringent than the confidentiality obligations herein. Vendor shall be liable for any breach of this section by its Agents. Upon termination of the Agreement, Vendor shall, at Purchaser’s election, return or destroy Purchaser’s Confidential Information and shall not use Purchaser’s Confidential Information for its own or any third party’s benefit. Vendor’s confidentiality obligations shall survive termination of the Agreement for so long as Purchaser’s Confidential Information remains confidential. In order to assure that Purchaser is able to obtain the full benefit of the restrictions set forth in this section, Purchaser shall be entitled to injunctive relief, including, but not limited to, emergency, preliminary, temporary and permanent injunctions, from any court of competent jurisdiction as may be necessary to enjoin any violation of the foregoing covenants, without the necessity of proving immediate irreparable harm or an inadequate remedy at law.
Vendor shall not refer to Purchaser, this Agreement, or any relationship between Purchaser and Vendor in advertising or public releases without Purchaser’s written approval.
COMPLIANCE WITH LAWS
Vendor shall comply with all federal, state, provincial, foreign and local laws, orders, rules, regulations and ordinances, including import and export laws and regulations, and any and all safety laws, regulations, and standards that may be applicable to Vendor’s performance of its obligations under the Agreement. Any clause required to be included in an agreement of this type by any applicable federal, state or local law, rule or regulations shall be deemed to be incorporated herein by reference.
Vendor shall be solely responsible for and shall pay all costs and expenses associated with all fines or other penalties incurred for noncompliance with any federal, state or local law, rule, regulation or ordinance pertaining to the Work, or for delays or stop work orders imposed by a government agency or court due to Vendor’s noncompliance with federal, state or local law, regulation, rule or ordinance pertaining to the Work.
PERMITS AND LICENSES
Vendor shall obtain any licenses and permits which, under federal, state or local law, regulation, rule or ordinance, it may be required to hold in order to perform its obligations under this Agreement. Vendor shall hold and maintain such licenses and permits for so long as this Agreement shall remain in effect. Vendor and all subcontractors shall comply with all federal, state, or local laws that require registration and licensing of contractors and subcontractors. If requested, Vendor shall provide copies of such registration or licenses to Purchaser.
The failure of Purchaser to enforce any one or more of the provisions of this Agreement shall not be construed to be a waiver thereof, nor shall such failure affect the validity of Purchaser’s Purchase Order, this Agreement, or the right of Purchaser thereafter to enforce each and every such provision.
APPLICABLE LAW AND VENUE
This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina and without regard to conflict of law provisions. Each of the parties submit to the jurisdiction of the State and Federal courts located in Mecklenburg County, North Carolina, and agree that all disputes or actions arising hereunder will be exclusively settled in such courts.
This Agreement, together with all attachments and incorporated references, is the entire agreement between Purchaser and Vendor with respect to the Work and supersedes any prior or contemporaneous agreement or understanding between the parties regarding the subject matter hereof. The parties shall not be bound by or be liable for any statement, representation, promise, inducement or understanding of any kind or nature not set forth or provided for herein. No prior course of dealing, usage of trade or course of performance shall be used to supplement or explain any term, condition or instruction used in this Agreement, nor shall same be deemed to effect any amendment hereto.