ACCEPTANCE of this order is expressly limited to the terms and conditions contained herein and any additional terms and conditions contained in Seller’s response hereto shall be deemed objected to by the Gilbarco Veeder-Root company issuing the Purchase Order. (hereinafter called “GILBARCO” or “Buyer”), without need for further notice of objection, and such conflicting or additional terms shall be of no effect nor in any circumstances binding upon GILBARCO. Seller will be deemed to have assented to all terms and conditions by the return of the signed acceptance copy of this order, or if part of the described items is shipped, services rendered or performance otherwise commenced. If this purchase order is in response to a proposal of quotation made by Seller to GILBARCO, specifications, prices, and delivery listed thereon are applicable only to the extent the Seller’s quotation or proposal is specifically reference on the face of this order; provided, however, that to the extent that terms and conditions contained herein are in conflict with, inconsistent with, or additional to the terms and conditions of Seller’s offer to GILBARCO. GILBARCO’s acceptance by this order is expressly conditioned upon Seller’s assent to GILBARCO’s version of such conflicting, inconsistent or additional terms and conditions.
In the event that there exists an agreement between Gilbarco and the Seller or relevant country legislation governs the relationship between the parties, then that agreement and/or those laws shall take precedence over these terms and conditions. In the event that relevant country legislation renders any of these terms unlawful, void, or unenforceable, then that provision shall be deemed limited to the extent required to make it enforceable, or, if necessary, severed from these terms without affecting the validity and enforceability of the remaining provisions of these terms.
1. Changes: GILBARCO may at any time make changes in drawings, specifications, designs, service or job description, delivery schedules, quantities, place of delivery, and packing and shipping instructions related to this order. If any such changes causes a variation in the cost of the goods or services covered hereby, and/or the time required to perform this order, an equitable adjustment in price and/or delivery schedule shall be made. No claim by Seller shall be valid unless submitted within 15 days from the date notice of any such change is received by Seller. Nothing in this clause shall relieve Seller from proceeding without delay in the performance of this order as changed. GILBARCO engineering, technical and other personnel may from time to time render assistance or give technical advice to, or exchange information with Seller’s personnel concerning this order. However, such assistance, advice, statements or exchange of information shall not constitute a waiver with respect to any of the Seller’s obligation or GILBARCO’s rights hereunder or be authority for any change in the goods or services called for hereunder. Any such waiver or change to be valid and binding upon GILBARCO must be in writing and signed by an authorized representative of GILBARCO’s Purchasing Department.
2. Prices and Taxes: By acceptance of this purchase order, Seller certifies that the prices stated herein are not in excess of prices quoted or charged any other purchaser in similar quantities for substantially similar goods or services. Seller agrees that any price reduction made in merchandise covered by this order subsequent to the placement of the order will applicable to this order. Unless otherwise indicated on the face of this Order, the prices set forth herein shall be firm and fixed prices and shall be deemed to include all taxes applicable to the sale of the goods and/or services ordered and any additional costs incurred by Buyer in relation to the provision of goods and services shall be at Buyer’s expense.
3. Delivery: Time is the essence of this order. If Seller fails to make delivery or perform the service at the time agreed upon or performs the work hereunder in such a fashion as endangers its ability to make timely delivery or to render timely performance or services, GILBARCO reserves the right to cancel, purchase elsewhere, and hold Seller accountable for any additional costs or damages incurred by GILBARCO. Acceptance of any items after delivery date or otherwise shall not constitute a waiver of GILBARCO’s rights to demand timely performance as to future deliveries or to recover damages for the late delivery or offset such against the purchase price. If it appears Seller will not meet agreed delivery schedule, Seller shall promptly notify GILBARCO in writing and, it requested by GILBARCO, ship relevant goods via premium routing to avoid or minimize delay to the maximum extent possible, or add resources as required, the added costs to be borne by Seller. This is in addition to GILBARCO’s other remedies. Items received more than 5 days before schedule date may at GILBARCO’s option, be returned at Seller’s expense, or be accepted and payment therefore withheld until the time when it would have been due had the items arrived at the proper time.
4. Warranty: In addition to Seller’s standard warranty and all warranties implied by law, Seller warrants that at the time of delivery thereof all goods and/or services delivered hereunder will be (i) in strict conformity with the specifications (and approved sample, if furnished), (ii) be new and not be used, reconditioned or refurbished, (iii) be merchantable, fit for the use intended by Gilbarco and free from defects (in title, design, manufacture, workmanship, material or otherwise), including but not limited to latent defects; (iv) conform strictly to Seller’s applicable product literature and the documentation, specifications, drawings, samples or other descriptions either published by Seller or furnished by Seller to or specified by Gilbarco, if any (or shall conform to the highest quality if no such specifications are provided), and meet the performance requirements of the Order; (v) comply with all applicable laws, rules and regulations, all applicable industrial and governmental safety standards and other standards of performance, and all requirements of the Agreement; (vi) be free from any actual or claimed patent, copyright, trademark or other intellectual property infringement or misappropriation, and be free of any open source software; (vii) be free and clear of all liens, claims or encumbrances of any kind; and (viii) if services, be rendered in a workmanlike, professional and diligent manner and with at least that degree of skill, training and competence reasonably expected of persons performing such services within the same industry and country. If a sample item has been or is to be submitted by Seller to GILBARCO, Seller shall obtain GILBARCO’s written approval and thereof before proceeding hereunder no modification thereof shall be binding upon GILBARCO. Articles not in conformity herewith may, at GILBARCO’s option, be returned to Seller at Seller’s expense for repair, replacement, credit or refund as GILBARCO may direct, or GILBARCO may retain same at a proper adjustment of price. Seller shall be liable to GILBARCO for any consequential damages suffered by GILBARCO as a result of Seller’s breach of warranty. GILBARCO shall be reimbursed for all expense of handling inspection, and return the defective articles. It is understood and agreed that the foregoing remedies are cumulative and are not intended to limit or exclude any remedies provided by law. Seller’s warranties (and any more favourable warranties, service policies, or similar undertakings of Seller) shall be enforceable by GILBARCO’s customers and the users of GILBARCO’s goods as well as by GILBARCO.
5. Inspection: Payment for the goods or services furnished hereunder shall not constitute acceptance thereof. All goods and services are subject to Buyer’s inspection, at the source if deemed necessary by Buyer or required by government regulation. If any of the goods are found at any time to be defective in design, material or workmanship, or otherwise not in conformity with the requirements of this order, Buyer in addition to any other rights which it may have under warranties or otherwise shall have the right to reject and return such goods (plus inbound transportation charges if bought F.O.B. shipping point) at Seller’s expense. Such goods shall not be replaced without written authorization by Buyer/ Buyer may reject the entire shipment, where it consists of a quantity of similar articles and sample inspection discloses that the articles inspected contain defective material or workmanship or do not conform to specifications or samples, unless Seller agrees to reimburse Buyer for the cost of complete inspection of the articles included in such shipment. If services are found to be defective in delivery then Buyer in addition to any other rights which it may have under warranties or otherwise shall have the right to demand Supplier immediately re-perform services at its cost.
6. Indemnification: To the extent that Seller’s agents, employees or subcontractors enter upon premises occupied by or under the contract of GILBARCO or any of its customers or suppliers the course of the performance of this order Seller shall take all necessary precautions to prevent the occurrence of any injury (including death) to ant person, or any damage to property, arising out of any acts or omissions of such agents, employees or subcontractors, and except to the extent that any such injury or damage is due solely and directly to GILBARCO’s negligence, shall indemnify GILBARCO against any loss, claim, damages, liability expense (including court costs and reasonable attorney fees) and cause of action, whatsoever, arising out of any act or omission of the Seller, its agents, employees, or subcontractors. Seller shall maintain such public liability, property damage and employee’s liability and compensation insurance as will protect GILBARCO from any of said risks. Seller further agrees to indemnify GILBARCO and hold it harmless from and against any and all losses and expenses, including court costs and reasonable legal fees (except losses arising solely out of GILBARCO’s negligence) which GILBARCO may sustain by reason of claim, demand, legal action of judgment based upon (a) alleged patent trademark or copyright infringement arising out of the use or sale of such merchandise; (b) defects, either latent or patent in the design, manufacture, preparation or handling of such merchandise by Seller or those in privity with it; (c) the use by any person of such merchandise; (d) Seller’s delivery or service activity; or (e) Seller’s breach of any express or implies warranty. Seller shall have the right, at its expenses, to defend said claims, provided, that before yielding to a claim, GILBARCO may require that adequate security be furnished against any potential resulting judgments.
7. Liens: If this order covers job site work, Seller shall be solely responsible for all claims of whatever nature arising out of non-payment for services, labour, and materials furnished or contracted for by Seller in performance of work hereunder, including all liens which may be levied against Buyer or its customers.
8. Termination: GILBARCO may terminate, for its convenience, work under this purchase order in whole or in part at any time by written, oral or email notice to Seller. In the event of termination of work under this purchase order the convenience of GILBARCO, Gilbarco will reimburse Seller for it actual direct expenditures incurred in good faith prior to or by reason of such termination if the materials had been approved and released for manufacture prior to cancellation, less, however, any amount recoverable as useable inventory or scrap value; except that. Reimbursement upon termination shall not apply in the event GILBARCO shall terminate because of the default of Seller and in no event shall reimbursement plus payments previously made exceed the total consideration hereof.
9. Default: In the event Seller shall fail to comply with any part of its obligation of this order, including terms and conditions hereof, GILBARCO may terminate this order in full or in part, and may consider such noncompliance as a breach of contract. The insolvency or adjudication of bankruptcy of the filing of a voluntary petition of bankruptcy or the institution by or against Seller, or the making of an assignment for the benefit of creditors by, or the appointment of a receiver for Seller shall be a material breach hereof, GILBARCO expressly reserves the right to cancel this order for default and hold Seller accountable for any additional costs or damages incurred by GILBARCO in the case of such breach, and no action by GILBARCO shall constitute a waiver of any such right or remedy.
10. Gratuities: Seller has not and will not offer or give to any employee, agent or representative of Buyer and gratuity with a view towards securing any business from Buyer by influencing such person with respect to the terms, conditions, performance, or award of any contract with or order from Buyer. Any breach of this warranty shall be a material breach of each and every contract between Buyer and Seller.
11. Compliance with Law: In furnishing goods and/or services required under this order or any amendment thereto, Seller represents, warrants, and agrees that it shall comply with the provisions of all applicable laws and regulations. Seller hereby indemnifies and saves harmless GILBARCO from or against any and all losses, penalties, and expense (including court costs and reasonable attorney’s fees) resulting from Seller’s noncompliance therewith.
12. GILBARCO Property: All material including tools, furnished or specifically paid for by GILBARCO shall be the property of GILBARCO, shall be subject to removal at any time without additional cost upon demand by GILBARCO, shall be used only in filling orders from GILBARCO, shall be kept separate from other materials or tools, and shall be clearly identifies as the property of GILBARCO. Seller assumes all liability for loss or damage, with the exception of normal wear and tear, and agrees to supply detailed statements of inventory, upon request of GILBARCO. In the event that Seller fails or refuses to return Buyer’s tooling or dies, including attorney’s fees.
13. Drawings and Specifications: GILBARCO shall at all times have title to all drawings and specifications furnished by GILBARCO to Seller and intended for use in connection with this order. Seller shall use such drawings and specifications only in connection with this order and shall not disclose such drawings and specifications to any person, firm, or corporation other than GILBARCO’s or Seller’s employees, subcontractors, or Government inspectors. The Seller shall, at GILBARCO’s request or upon completion of the order, promptly return all drawings and specifications to GILBARCO. Seller shall impose and enforce these use restrictions on its employees, subcontractors and suppliers.
14. Identification and Invoicing: Purchase Order number must appear on every invoice, tag, box, package, shipping papers, or any other communication. A packing slip must accompany each shipment. Render separate invoices in duplicate for each shipment applying against this order. Invoices with bills of lading or prepaid expense bills attached should be directed to the Accounts Payable Department, Gilbarco in the country of the Order, unless otherwise specified. Invoices are not to cover more than one Purchase Order. Invoices for transportation charges must be supported by carrier’s receipt bill. Invoices must show cash discount terms. Buyer reserves the right to calculate discount period from date of shipment or from date correct invoice is received at the proper office of the Buyer, whichever is later.
15. Freight: Shipments against this Order must be routed as specified by Buyer, otherwise any extra expense incurred is to be charged to and assumed by Seller. In the event routing is not specified, ship least expensive way.
16. Chemical Substances Identification: By acceptance of this purchase order, Seller certifies that the chemical substance(s) furnished pursuant to this order has been properly labelled, and that proper information of the substance(s), e.g. material safety data sheets, have been provided to Buyer pursuant to any relevant legislation.
17. Hazardous Materials: Any materials required by this Order that are deemed hazardous will be packed, marked, and shipped by the Seller to comply with all present and future regulations and will further comply with any special requirements issued by Buyer
18. Notice of Labour Dispute: Whenever Seller has knowledge that any actual or potential labour dispute may delay this order. Seller shall immediately notify and submit all relevant information GILBARCO. Seller shall insert the substance of this entire clause in any subcontract hereunder as to which a labour dispute may delay this order.
19. Assignment: No assignment of any rights, including rights to moneys due or to become due hereunder, or delegation of any duties under this order shall be binding upon GILBARCO unless and until it’s written consent has been obtained.
20. Applicable Law: This order shall be governed by the Laws of the country in which the Order was issued.
21. Force Majeure: Buyer may delay delivery or acceptance occasioned by caused beyond its control. Seller shall hold such goods at the direction of the Buyer and shall deliver them when the cause affecting the delay has been removed. Buyer shall be responsible only for Seller’s direct additional costs in holding the goods or delaying performance of this agreement at Buyer’s request. Causes beyond Buyer’s control shall include government action or failure of the government to act where such action is requires, strike or other labour trouble, fire, or unusually severe weather.