Terms & Conditions
1. OFFER AND ACCEPTANCE.
1.1. This Purchase Order (“Order”) issued by CBI to Vendor is an offer to Vendor (CBI and Vendor being those entities defined as such on the face of this Order), for the purchase of the goods (the “Goods”) and services (the “Services”) described on, or contemplated by, the face of this Order and in Vendor’s Proposal attached hereto, if any, and includes and is governed by the terms contained on the face of this Order and these terms and conditions (collectively, the “Terms”). Vendor’s Proposal, if attached hereto, is attached only for the purpose of identifying the specific Goods and Services being purchased by CBI, and all other terms and conditions provided therein are hereby deemed deleted and of no effect on the terms and conditions of this Purchase Order.
1.2. Vendor’s (i) written acceptance of this Order, (ii) commencement of work on the Goods or Services, (iii) shipment of the Goods, (iv) failure to object to this Order, in writing, within ten (10) days of receipt of this Order, and/or (v) conduct that indicates Vendor’s acceptance, including preparation for Vendor’s performance shall constitute Vendor’s acceptance, without exceptions, of CBI’s offer. If Vendor objects, Vendor’s objections are deemed waived if Vendor subsequently commences work on the Goods and Services, ships the Goods or commences performance of any or all the Services without an express written modification executed by CBI.
1.3. Any acceptance of this Order is limited to and conditional upon Vendor’s acceptance of the Terms. Any proposal for additional or different terms or any attempt by Vendor to vary any of the Terms, whether in Vendor’s Proposal, acceptance form, acknowledgement form, invoice, correspondence or otherwise, shall be deemed material and is hereby objected to and rejected by CBI, but any such proposal or attempted variance shall not operate as a rejection of this Order if Vendor accepts CBI’s offer by commencement of work, shipment of the Goods or by other means acceptable to CBI, in which case this Order shall be deemed accepted by Vendor without any additional or different terms or variations whatsoever. This Order does not constitute an acceptance of the terms in the Proposal or any prior offer, quotation, or proposal by Vendor, and CBI objects to and rejects any additional or different terms in such Proposal and prior offer, quotation, or proposal.
1.4. This Order, including the Terms, constitutes the entire agreement between CBI and Vendor and, except as otherwise expressly stated in this Order, supersedes all prior agreements, orders, quotations, proposals and other communications, and there are no other understandings or agreements, verbal or otherwise. No amendments or modifications to this Order shall be binding on CBI without an express written modification executed by CBI.
2. DEFINITIONS.
2.1. The term “Applicable Laws,” as used herein, means all federal, state, and local laws, rules, regulations and executive or judicial orders applicable in any jurisdiction where the Goods are manufactured or the Services performed, and any jurisdiction where the Goods will be used in construction of the Project.
2.2. The term “Delivery Date” shall mean each date by which the Goods or Services must be delivered as set forth on the face of this Order
7. PRICING, INVOICING AND PAYMENT.
7.1. The Price shall be Vendor’s full compensation for the Goods and Services.
7.2. When payment is due pursuant to the payment terms in the Order, the Vendor shall, as a condition to payment being due hereunder, submit to CBI an itemized invoice, supported by data substantiating the Vendor right to payment, and, upon CBI’s request, conditional waivers and releases of lien from Vendor on a form reasonably acceptable to CBI.
7.3. Invoices must include the following information (i) CBI’s Purchase Order number, (ii) quantity for each item, (iii) material description, (iv) material tag number (if applicable), (v) net price per item, and (vi) signed bill of lading for shipped goods (as applicable).
8. CHANGES.
8.1. CBI reserves the right to direct changes, or to cause Vendor to make changes, to the Goods, Services, specifications, packing, time and place of delivery or performance or method of, upon written notice to Vendor. Vendor will promptly make any such requested change. Vendor will not make any change in the Goods’ design, specifications, processing, packing, marking or shipping, price or date or place of delivery or performance without approval in a writing signed by CBI’s authorized representative.
9. WARRANTIES. Vendor warrants to CBI and its affiliates and their successors, assigns and customers, that all the Goods and Services will:
9.1. conform to, and be capable of performing as described in, the Drawings and Specifications, standards, drawings, specifications, samples and descriptions furnished by CBI and in any revisions specifically approved in a writing signed by CBI;
9.2. comply with, and have been produced, processed, packaged, labeled, delivered and sold, and be capable of operating in conformity with, all Applicable Laws;
9.3. be free of defects in design (to the extent designed by or on behalf of Vendor), materials and workmanship (latent or otherwise), and of good and merchantable quality; and
9.4. be free and clear of all liens and encumbrances.
The foregoing warranties will survive delivery, inspection and payment.
10. PROPRIETARY RIGHTS.
10.1. Vendor agrees: (i) to defend, hold harmless and indemnify CBI, its successors and customers against claims of direct or contributory infringement or inducement to infringe any proprietary right (including without limitation any patent, trademark, copyright, moral, industrial design right or misuse or misappropriation of trade secret) and against any resulting damages or expenses, including attorneys’ and other professional fees, settlements and judgments, arising in any way in relation to the Goods and Vendor’s performance of the Order (including without limitation their manufacture, purchase, use and/or sale), including such claims where Vendor has provided only part of the Goods, and Vendor expressly waives any claim against CBI that such infringement arose out of compliance with CBI’s specifications, except to the extent such infringement is actually embodied in designs created by
13. TERMINATION FOR CAUSE.
13.1. Without limiting any other provision of this Order or CBI’s rights under Applicable Law, CBI may terminate all or any part of this Order, without liability to Vendor, if: (i) Vendor repudiates, breaches or threatens to breach any of the terms of this Order; (ii) Vendor fails or threatens not to deliver the Goods or perform the Services; (iii) Vendor fails to make progress or to meet reasonable quality requirements so as to endanger timely and proper completion or delivery of Goods and does not correct the failure or breach within 10 days after receipt of written notice from CBI specifying the failure or breach; or (iv) Vendor becomes insolvent, files a voluntary petition in bankruptcy, has an involuntary petition in bankruptcy filed against Vendor, has a receiver or trustee appointed for Vendor, or executes an assignment for the benefit of creditors.
13.2. Vendor may terminate this Order only for non-payment of the Price for the Goods or Services that are thirty (30) or more days past due and material in amount, and then only if: (i) Vendor first provides CBI written notice specifying the amounts past due and Vendor’s intent to terminate if the past due amount is not paid; and (ii) CBI, within sixty (60) days of such notice, does not pay the undisputed past due amounts.
13.3. IN NO EVENT SHALL CBI BE LIABLE TO VENDOR FOR ANY CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR ANY OTHER LEGAL THEORY ARISING OUT OF THIS AGREEMENT. SUCH EXCLUDED DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, LOST PROFITS, EVEN IF CBI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14. CBI’S PROPERTY. All patents, copyrights, trademarks and other intellectual property rights, information and materials, tooling (such as fixtures, gauges, jigs, patterns, castings, cavity dies, molds, with all related appurtenances, accessions, and accessories), packaging, documents, standards, specifications, samples, trade secrets, proprietary information and other materials and items (including whether or not such materials are in any way modified, altered or processed) furnished by CBI either directly or indirectly to Vendor to perform this Order remain the sole and exclusive property of CBI (collectively, “CBI’s Property”). Vendor shall not use CBI’s Property except in performance of its obligations hereunder without CBI’s express written authorization.
15. ASSIGNMENT; SUBCONTRACTING. Without CBI’s execution of a prior written consent, Vendor shall not assign any of the rights or responsibilities arising from this Order and any assignment of Vendor’s rights or delegation of duties shall be void.
16. FORCE MAJEURE. Neither party shall be responsible to the other by reason of failure to perform obligations hereunder to the extent that the failure to perform is caused by an act of God, flood, fire, storm, earthquake, shipwreck, or acts of public enemy.
17. DISPUTE RESOLUTION. Any controversy or claim between the parties to this Order must be settled in accordance with the requirements of the prime contract between CBI and its client, if the client is a party thereto, and otherwise by binding arbitration under procedures as may be reasonably selected by CBI. If any arbitration or litigation arises out of or relates to this Agreement, then the prevailing party in such proceeding
2.3. The term “Drawings and Specifications” shall mean those drawings and specifications listed in Exhibit B to this Order, if any.
2.4. The term “Price,” shall mean the price of the Goods and Services designated on the face of the Order.
2.5. The term “Project” shall mean that certain project as described on the face of the Order.
2.6. The term “Vendor” shall mean that certain Vendor identified on the face of the Order.
3. AGREEMENT.
3.1. CBI agrees to purchase, and Vendor agrees to sell the Goods, and perform the Services, under the terms and conditions described in the Order and these Terms and Conditions.
4. DELIVERY; INSPECTION.
4.1. Time is of the essence with respect to performance of this Order. Vendor shall make deliveries of the Goods and Services in quantities and at the times specified by CBI. CBI is not obligated to accept late deliveries or partial deliveries, and CBI may reject in whole or in part such partial or delayed delivery. CBI is not obligated to accept early or excess deliveries. CBI, may either (i) return such Goods at Vendor’s expense for the proper delivery, (ii) withhold payment for such Goods, or (iii) place such Goods in storage for Vendor’s account until the scheduled delivery date. Regardless of shipping terms, title to and risk of loss or damage to the Goods shall pass from Vendor to CBI at the time of delivery of the Goods to CBI.
4.2. Vendor shall, prior to delivery, coordinate with CBI to (i) confirm the conditions under which the goods are to be delivered; (ii) determine availability of facilities for access, delivery, and storage; and (iii) determine restrictions imposed by CBI. The Vendor shall promptly report to CBI conditions that would impede the Vendor’s delivery. If the Vendor is required to unpackage the Goods, the Vendor shall remove and dispose of the packaging and delivery materials. The Vendor shall promptly remedy damage and loss to property caused in whole or in part by the Vendor or Vendor’s contractors or consultants, or anyone directly or indirectly employed by any of them. Vendor must advise of any special handling or storage requirements necessary to ensure safekeeping of the Goods.
5. RECEIPT AND INSPECTION. CBI may inspect the Goods and reject any Goods that are nonconforming. CBI’s acceptance, inspection, or failure to inspect does not relieve Vendor of any of its responsibilities or warranties. Payment for nonconforming Goods is not an acceptance, does not limit or impair CBI’s right to assert any legal or equitable remedy, and does not relieve Vendor’s responsibility for latent or undiscovered defects. CBI’s inspection, evaluation or testing before, during or after manufacture, delivery and performance shall not constitute a waiver of the right of subsequent rejection or revocation by reason of any latent or otherwise undiscovered defect.
6. PACKAGING, MARKING AND SHIPPING. The Goods are to be suitably prepared for shipment and must be marked, packed and shipped as required by law and in accordance with CBI’s specifications, as specified in this Order and/or in any written instructions as may be provided by CBI to Vendor from time to time. Vendor shall not charge CBI for marking, packing, boxing or crating.
CBI and provided in writing to Vendor; (ii) that CBI and its subcontractors and direct or indirect customers have the worldwide, irrevocable right to use or sell the Goods delivered under Order without payment of any royalty or other compensation to Vendor; and (iii) that manufactured parts based on CBI’s designs, drawings or specifications may not be used for Vendor’s own use or sold to third parties without CBI’s express written consent.
10.2. Vendor’s obligations under this Section 10 shall be in addition to, and shall not limit or restrict Vendor’s other obligations under this Order, Applicable Law or otherwise.
11. INDEMNIFICATION. To the fullest extent permitted by applicable law, Vendor will defend, indemnify and hold harmless CBI and its affiliates, and their respective customers (both direct and indirect), directors, officers, employees, members, managers, agents, insurers, successors and assigns (collectively, the “Indemnified Parties”) against all damages, losses, claims, liabilities and expenses (including without limitation attorneys’ and other professional fees, settlements and judgments) arising out of or resulting from: (i) defective Goods or Services; (ii) any actual or alleged breach of or failure by Vendor to comply with any representation, warranty, covenant or other term and condition in this Order; or (iii) any actual or alleged injury to or death of any person, or any actual or alleged damage to or loss of any property, arising out of (y) any Services performed by Vendor, its employees, agents, Vendors or contractors or (z) the negligent or wrongful acts or omissions or intentional misconduct of Vendor, its employees, agents, Vendors or contractors.
12. INSURANCE. Vendor agrees to procure and maintain, at its sole expense, with solvent insurers and insurers acceptable to CBI, policies of insurance in favor of CBI in the minimum amounts set forth below:
12.1. Worker’s Compensation Insurance in accordance with the statutory requirements of the location in which the Order is performed.
12.2. Commercial General Liability Insurance, in occurrence coverage form, with minimum limits of $1,000,000 per occurrence and in the aggregate, including the following coverages: (A) Products and Completed Operations, (B) Contractual Liability insuring the indemnity obligations assumed by Vendor under this Order, and (D) Property Damage (including Completed Operations)
12.3. Automobile Liability Insurance, including coverage for owned, hired, and non-owned automobiles and trucks used by or on behalf of the Vendor providing insurance for bodily injury, liability and property damage liability with minimum limits for each type of coverage of $1,000,000 per occurrence.
CBI and all other Indemnified Parties shall be added as additional insureds to Vendor’s Commercial General Liability Insurance and Automobile Liability Insurance policies on endorsements acceptable to CBI. The insurance provisions herein are intended to assure that certain minimum standards of insurance protection are afforded by Vendor, and the specifications herein of any amount or amounts shall be construed to support but not in any way to limit the liabilities and indemnity obligations of Vendor. Vendor shall furnish to CBI certificates of insurance evidencing that proper insurance has been secured, and no monies will be deemed owed for Goods or Services performed by Vendor until the certificates are properly completed and delivered to CBI. Vendor shall promptly notify CBI of any actual or threatened cancellation or material change with respect to any insurance policy.
shall be entitled to be reimbursed by the non-prevailing party for all of the prevailing party’s out-of-pocket expenses incurred in connection with such litigation or arbitration, including, without limitation, reasonable attorneys’ fees, expert witness fees and other costs of litigation or arbitration. In any such proceeding, the judge or arbitrator is hereby authorized and directed by the parties hereto to make a determination as to the identity of the prevailing party and the amount of the non-prevailing party’s reimbursement obligations pursuant to this Section.
17.1. THIS ORDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE PROJECT IS LOCATED, INCLUDING THE UNIFORM COMMERCIAL CODE AS ENACTED IN SUCH STATE. IT IS THE EXPRESS INTENTION OF THE PARTIES TO EXCLUDE THE APPLICATION OF THE 1980 UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IF OTHERWISE APPLICABLE.
18. MISCELLANEOUS
18.1. WRITINGS. Whenever this Order requires a writing executed by CBI such writing must be signed by a person that is authorized to make procurement transactions and enter into contracts on behalf of CBI.
18.2. SURVIVAL. All provisions of the Order that by their nature survive termination of this Order or delivery of the Goods, including, without limitation, all warranties, indemnities, indemnity obligations, confidentiality obligations, and obligations to arbitrate disputes, shall remain in force and effect after deliver of the Goods or any termination of the Order.
18.3. INDEPENDENT CONTRACTORS. Vendor and CBI are independent contracting parties and nothing in the Order or Terms, including these Terms and Conditions, shall make either party the agent, partner, joint venturer or legal representative of the other for any purpose whatsoever, nor does it grant either party any authority to assume or to create any obligation on behalf of or in the name of the other.
18.4. COUNTERPARTS; FACSIMILE AND ELECTRONIC SIGNATURES. The Order may be executed in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. The parties agree that the Order may be executed by any party by facsimile or electronic (e-mail PDF) signatures and each such signature shall be valid and binding.
18.5. EXPORT LAW. Vendor shall abide by all applicable export laws consistent with U.S. law including, without limitation, the U.S. Export Administration Regulations, Foreign Trade Regulations, OFAC regulations, International Traffic in Arms Regulations (ITAR), and US antiboycott regulations.
18.6. SEVERABILITY. The invalidity of any provision of the Order, including these Terms and Conditions, shall not invalidate the Order or its remaining provisions. If it is determined that any provision of the Order or these Terms and Conditions violates any law, or is otherwise invalid or unenforceable, then that provision shall be revised to the minimum extent necessary to make that provision legal and enforceable. In such case the Order shall be construed, to the fullest extent permitted by law, to give effect to the parties’ intentions and purposes in executing the Order.