Terms and Conditions of Sale for Products and Services
- Acceptance. The following terms and conditions are applicable to all quotations and purchase orders and are the only terms and conditions applying to the sale of Gilbarco's products or services except those that relate to prices, quantities, delivery schedules, and the description and specifications of the products. Gilbarco hereby objects to and rejects any other terms and conditions appearing on, incorporated by reference in or attached to a purchase order. Buyer's acceptance of such products or services shall constitute its acceptance of these terms and conditions.
- Billing and Payment. Unless Gilbarco otherwise agrees in writing:
(a) Payment shall be due within thirty (30) days from date of invoice (Net 30 Days). Fees for ongoing services will be invoiced annually, starting when the applicable service is enabled. Fees for all other services will be invoiced upon completion. Payment terms are subject to approval of Gilbarco’s credit department. If in Gilbarco's opinion, Buyer's financial condition reasonably appears to call for such action, Gilbarco may require payment in advance.
(b) Gilbarco may impose finance charges, the lower of one and one-half percent (1½%) per month or the highest rate allowed by law, on any amount past due. If an invoice is not paid when due, Buyer shall pay all collection costs if this account is referred outside for collection or, if suit is brought to collect this account, Buyer agrees to pay all costs and reasonable attorneys' fees, including those incurred on any appeal. For amounts past due for services, Gilbarco reserves the right to discontinue the services until the account is made current, or terminate the services and seek full recovery for any outstanding fees and costs due.
(c) Prices quoted are exclusive of, and Buyer agrees to pay, any foreign, federal, state or local excise, sales, use, personal property or any other taxes or duties, excepting only taxes based on Gilbarco's income. Any certificates or other evidence of applicable exemptions to such taxes or duties must be made available to Gilbarco prior to invoicing or such taxes or duties will be charged to Buyer, provided, however, that if Gilbarco does not collect such items from Buyer and is later requested or required to pay the same to any taxing authority, Buyer will promptly make such payment to Gilbarco or, if requested by Gilbarco, directly to such taxing authority.
- Place of Product Delivery and Method of Tender.
(a) Sales within U.S. Delivery terms and pricing for product sales within the United States are CPT (Incoterms 2010) Gilbarco’s dock, Greensboro, NC, unless otherwise agreed to in writing by Gilbarco. Gilbarco shall arrange for appropriate means of transportation of the products ordered. Freight is pre-paid from Gilbarco’s dock (Point of Delivery) and incurred after the products are delivered to the carrier from Point of Delivery to the Place of Destination. Risk of loss of or damage to the products or any part of the products shall pass to the Buyer upon delivery to carrier at the Point of Delivery, and Buyer shall have the responsibility of filing any damage claims with the carrier. Buyer shall arrange for applicable insurance covering the products from Point of Delivery to their Place of Destination. Legal title to the products shall pass to Buyer at the Point of Delivery.
(b) Sales outside of U.S. Delivery terms and pricing for export product sales are FCA (Incoterms 2010) Gilbarco’s dock, Greensboro, NC, unless otherwise agreed to in writing by Gilbarco. Gilbarco shall arrange for appropriate means of transportation of the products ordered and pay all inland freight charges from Gilbarco’s dock (Point of Delivery) to the first USA port of export unless otherwise agreed to in writing by Gilbarco. Buyer shall arrange for applicable insurance covering the products during transit to their destination. Where Buyer requires special delivery requirements, any special expense is to be borne by the Buyer, including special handling, packaging and additional freight charges. When “export packing” is required, Buyer shall be responsible for any extra charges such as export duties, licenses, fees and the like. Risk of loss of or damage to the products or any part of the products shall pass to the Buyer upon delivery to carrier at the Point of Delivery, and Buyer shall have the responsibility of filing any damage claims with the carrier. Orders are subject to Gilbarco’s ability to obtain export licenses and other necessary papers within a reasonable period. Buyer will furnish all Consular and Customs declarations and will accept and bear all responsibility for penalties resulting from errors or omissions thereon. Buyer shall not re-export the products or items which incorporate the products if such re-export would violate applicable export laws. Legal title to the products shall pass to Buyer at the Point of Delivery, except for sales to Canada or Central or South America (excluding Mexico), in which case legal title to the products shall pass to Buyer when the products cross an international border (including without limitation entering international waters), or at such later point as may be agreed to in writing by Gilbarco.
- Product Installation. Unless otherwise specified in writing on a quotation provided by an authorized representative of Gilbarco, Buyer assumes responsibility for installation. Gilbarco agrees to make installation and on-site technical support services available at Gilbarco's then-prevailing rates. If Buyer’s site has broadband internet access and the product includes connectivity hardware at the time of commissioning, Gilbarco’s commissioning process requires configuring and registration of the product for Insite360 Services to allow Gilbarco the option to collect certain site information related to product hardware/software and performance data, to provide enhanced services to Buyer. In addition, certain Gilbarco products or services are provided by authorized third parties who may also require access to certain site information related to product hardware/software and performance data, to deliver the products and/or services as intended. Buyer agrees to such data collection for Gilbarco or its authorized third parties. Gilbarco does not collect cardholder data, and Gilbarco maintains all necessary PCI certifications for its Insite360 Services.
- Maintenance. Buyer assumes responsibility for maintenance on the products sold to Buyer. Gilbarco agrees, however, to make maintenance services available at its then-prevailing rates. For any other services purchased, Buyer is responsible for:
(a) installing and maintaining the necessary equipment at the site and obtaining any required consents, licenses, or permits;
(b) providing Gilbarco with remote connectivity to access the devices required for service for each site in accordance with Gilbarco’s standards then in effect;
(c) all communication and interface equipment and services, and the associated costs and fees, necessary for the remote connectivity.
- Term for Services. Services are provided for an initial term, as provided in the applicable documentation from Gilbarco. If no initial term is specified, then the initial term is one (1) year. Services shall automatically renew for successive one (1) year periods unless one party provides the other with thirty (30) days’ written notice of its intent not to renew.
- Warranties. Gilbarco warrants its equipment parts and supplies in accordance with its standard warranty policies. A written copy of these policies accompanies these terms and conditions or is available upon request. THESE WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ONLY AN OFFICER OF GILBARCO, IS AUTHORIZED TO MAKE ANY WARRANTY IN ADDITION TO THE FORGOING.
- Limitation of Buyer’s Remedies. GILBARCO WILL NOT BE LIABLE FOR CLAIMS OR DAMAGES CAUSED BY BUYER’S FAILURE TO FULFILL ITS OBLIGATIONS HEREIN. TO THE FULL EXTENT PERMITTED UNDER APPLICABLE LAW, GILBARCO SHALL NOT BE LIABLE TO BUYER OR ANY THIRD PARTY WITH RESPECT TO ANY PRODUCT OR SERVICE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY FOR:
(A) ANY CLAIMS, ACTIONS OR CAUSES OF ACTION ARISING OUT OF, UNDER OR IN CONNECTION WITH ANY ARRANGEMENT BETWEEN BUYER AND ANY THIRD PARTY, OR ANY FAILURE OF PERFORMANCE, BY A THIRD PARTY;
(B) FAILURE OR DELAY OF RESPONSE TO A GILBARCO NOTIFICATION TO BUYER OF A CONDITION, FAILURE OR DELAY OF A DELIVERY;
(C) FUEL SPILLS OR LEAKS, OBTAINING OR MAINTAINING COMPLIANCE PERMITS OR OTHER GOVERNMENTAL REGULATIONS, OR FOR TAXES, FINES OR OTHER GOVERNMENTAL LEVIES AGAINST BUYER;
(D) INTERRUPTION OF USE; LOSS, INACCURACY, OR CORRUPTION OF SOFTWARE OR DATA; OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY;
(E) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, EVEN IF GILBARCO IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THE ABOVE LIMITATION DOES NOT APPLY TO ANY INDEMNIFICATION FOR INFRINGMENT, WHICH IS EXPRESSLY LIMITED TO THE REMEDIES LISTED THEREIN. IN ANY EVENT, GILBARCO SHALL BE LIABLE ONLY FOR ACTUAL DAMAGES AND GILBARCO’S MAXIMUM LIABILITY HEREUNDER, REGARDLESS OF THE LEGAL THEORY, SHALL NOT EXCEED
(i) THE CONTRACT PRICE OF THE PRODUCTS GILBARCO FURNISHED; OR
(ii) THE AGGREGATE OF FEES PAID TO GILBARCO FOR SERVICES DURING THE THREE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE MOST CURRENT EVENT GIVING RISE TO SUCH LIABILITY OCCURRED.
- Gilbarco’s Remedies. Without waiving any other rights or remedies available to it under applicable law or otherwise, Gilbarco may, at its option, defer shipment or deliveries hereunder or pursuant to any other contract with Buyer, until all past-due accounts of Buyer to Gilbarco have been satisfied in full. Any rights or remedies herein shall be in addition to and not in lieu of any other rights or remedies Gilbarco may have at law or in equity.
- Proprietary Rights. Gilbarco shall retain all rights to designs, drawings, patterns, plans, specifications, technology, technical data and information, technical processes and business methods, whether patentable or not, arising out of or evolving as a result of Gilbarco rendering engineering services to and designing systems and products for Buyer's use. Buyer agrees not to enforce against Gilbarco or customers of Gilbarco any patent rights, the scope of which includes a system, process or business method utilizing products or engineering services delivered hereunder by Gilbarco and which relates to an invention, improvement, enhancement or development made by or for Buyer on a date subsequent to the date of Gilbarco's offer hereunder.
- Hazardous Materials. Buyer acknowledges that certain supplies covered by these terms may be, or become, considered as hazardous materials under various laws and regulations. Buyer agrees to familiarize itself (without reliance on Gilbarco), with any hazard of such materials and their applications and the containers in which such materials are shipped. Buyer agrees to inform and train its employees and its customers as to such hazards. Buyer agrees to waive any claim against Gilbarco and hold harmless and indemnify Gilbarco against any claims by its employees or customers based on allegations relating to any such hazards except where such claims are based on failure to meet written specifications or the inaccuracy of specific safety information actually furnished by Gilbarco.
(a) Delivery dates are approximate and are not guaranteed, and Gilbarco shall not be liable for damages of any kind resulting from any delays in fulfillment, shipment or delivery of orders. Furthermore, Gilbarco shall not be liable for any other loss, damage, cost or expense due to causes beyond its reasonable control, such as acts of God, acts of Buyer, acts of civil or military authority, fires, strikes, floods, epidemics, war, riot, delays in transportation, government restrictions or embargoes, or difficulties in obtaining necessary labor, materials, manufacturing facilities or transportation due to such causes;
(b) In the event of a delay in delivery exceeding ninety (90) consecutive days, Buyer has the right to terminate its order as to the undelivered portion thereof without penalty.
- Products Not for Resale. Buyer hereby expressly agrees, acknowledges, represents and warrants to Gilbarco that:
(a) it is the Gilbarco's policy to sell these types of products and/or services only to end users for their own use;
(b) the products/services that are the subject of this order are not intended for resale;
(c) the products/services that are the subject of this order are in fact being purchased by Buyer for Buyer's own use and not for resale to a third party; and
(d) in the event that Buyer breaches the foregoing acknowledgment, covenant, representation and/or warranty by reselling the products that are the subject of this contract, Gilbarco shall be permitted to (i) void, eliminate and/or refuse to continue to extend or make available to Buyer any volume or other types of discounts, rebates or preferential payment terms to which Buyer is now or hereafter otherwise might be entitled to or eligible to receive from Gilbarco, (ii) discontinue the applicable service without liability, or (iii) refuse to accept any further orders from Buyer. Notwithstanding the foregoing, nothing in these Terms and Conditions is intended to restrict any OEM from incorporating any products purchased from Gilbarco into equipment that is to be resold to the OEM's end customer so long as such OEM provides a reasonable certification of such use to Gilbarco.
- Cancellation. Unless otherwise agreed in a writing signed by authorized representatives of Buyer and Gilbarco, all canceled product orders will be subject to a 25% cancellation fee. Buyer may not cancel orders for non-standard products or orders for products which have left Gilbarco's dock.
- Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the internal laws of the State of North Carolina, USA, without regard to the conflicts of laws provisions. Buyer and Gilbarco consent to the sole and exclusive venue and jurisdiction of the courts situated in Guilford County, North Carolina, USA. Buyer must commence any action for loss or damage with respect to the products or services which are the subject of this contract within one year from the date of delivery of such products or services or such claim shall be forever barred.
- Compliance with Laws/Anti-Corruption. Buyer shall comply fully with all applicable laws, rules and regulations, including without limitation those of the United States and any and all other jurisdictions globally (“Laws”) that apply to Buyer’s business activities in connection with its purchase of products or services from Gilbarco. Specifically, Buyer shall comply with all Laws relating to anti-corruption, bribery, extortion, kickbacks, or similar matters that are applicable to Buyer’s business activities in connection with this Agreement, including without limitation the U.S. Foreign Corrupt Practices Act and the UK Bribery Act. Buyer will take no action that will cause Buyer or Gilbarco or any of their affiliates to violate any such laws.
- Entire Agreement. Unless otherwise agreed in a writing signed by Gilbarco and Buyer, these terms constitute the entire agreement between the parties, there being no other promises, terms, conditions, or obligations referring to the subject matter contained herein. If any term or provision be determined to be invalid or unenforceable, the remainder shall not be affected thereby, and each term and provision of this contract shall continue to be valid and enforced to the full extent permitted by law. Any modifications hereto shall be in writing and signed by both parties.
- INSITE360 Services. If Buyer has purchased and/or entered into an agreement for Insite360 services, the following additional terms apply:
(a) Buyer is responsible for designating on Gilbarco forms its monitoring, reporting, and other requirements. Buyer is solely responsible for defining the type and frequency of monitoring required to meet all regulatory and other standards. Gilbarco has no obligation to monitor federal, state or local law, or to modify services based on changes in such laws;
(b) Buyer represents and warrants that Buyer has the right to provide to Gilbarco the information and data provided in association with the services and to grant the rights for Gilbarco to use any such information and data;
(c) Gilbarco represents and warrants that it will perform the services materially in accordance with the written descriptions. Buyer acknowledges that the services, and/or the equipment used to provide services cannot and does not function as leak prevention and cannot and will not prevent a release. Buyer’s sole remedy and Gilbarco’s sole obligation in the event of any breach of the warranties set forth herein shall be to request Gilbarco to re-perform the nonconforming portion(s) of the services; however, if Gilbarco believes the foregoing remedy is not commercially reasonable, Gilbarco will refund to Buyer an amount equal to the amount paid by Buyer to Gilbarco for the nonconforming portion(s) of the services. GILBARCO DOES NOT WARRANT THAT THE SERVICES WILL MEET BUYER’S REQUIREMENTS OR THAT THE OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES AND/OR SOFTWARE USED IN THE SERVICES ARE PROVIDED AND PERFORMED “AS IS” WITHOUT ANY WARRANTY, AND BUYER’S USE OF THE SERVICES, SOFTWARE, OR ANY DATA MADE AVAILABLE THROUGH THE SERVICES ARE SOLELY AT BUYER’S OWN RISK. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES AND TO THE FULL EXTENT PERMITTED UNDER APPLICABLE LAW, GILBARCO DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, CONCERNING OR RELATED TO THE SERVICES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ACCURACY WITH RESPECT TO THE SERVICES AND/OR SOFTWARE, AS WELL AS ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.
(d) Buyer and Gilbarco may receive from the other party in the performance of the Services certain confidential or proprietary information belonging to the other party (“Confidential Information”). The parties shall treat such Confidential Information as confidential, using the same degree of care as it uses to protect its own confidential information, but no less than reasonable care. The parties shall not disclose or otherwise use such Confidential Information, except as provided herein. Either party may use or disclose the Confidential Information (i) as required for the services, but only by representatives of the receiving party who are bound by confidentiality obligations no less stringent than this herein, and (ii) as required by a court order or other legal process. These confidentiality obligations shall survive for five (5) years after the termination of the services. Nothing herein shall restrict any use or disclosure of a party’s information that: (a) is or becomes publicly available through no fault of the other party; (b) is independently developed by the other party; or (c) is received by the other party from a third party without confidentiality obligations. Buyer Confidential Information revealed to third parties because Buyer allowed the third party access to the services, is explicitly not subject to the foregoing confidentiality obligations. Gilbarco has the right to use and transfer any information or data collected as needed to provide the services and, to the extent permitted by applicable law, to use or transfer such data for other purposes but only if aggregated with other information or otherwise does not identify Buyer.
(e) Gilbarco and its licensors are the author and owner of all services and other creative materials or software for the services. Gilbarco hereby grants to Buyer a personal, non-exclusive, non-transferable, non-sublicensable right to use the software that is provided as part of the services (“Software”), including any updates thereto, solely for use of the services. Buyer may request that Gilbarco provide Buyer’s designated ASC with access to services to assist Buyer with the monitoring, maintenance, or repairs of the sites. Such access will (i) be subject to the limitations provided herein; (ii) require the ASC to sign an access agreement with Gilbarco; and (iii) require that Buyer be jointly liable for any such access granted to the ASC. Buyer shall not reverse engineer, decompile, or disassemble the Software or the services. Gilbarco and its licensors shall retain all other rights, title and interest in and to the services and the Software, including but not limited to (i) all derivative works and all related documentation; and (ii) all Gilbarco service marks, trademarks, trade names or other designations; and (iii) all other intellectual and industrial property rights of any sort in the services and the Software. Upon termination of the services, the foregoing licenses shall terminate immediately.
(f) Gilbarco shall defend and hold harmless Buyer from and against amounts payable under any judgment, verdict, court order or settlement for third party claims against Buyer that the Services infringes the intellectual property of the third party, provided: (i) Gilbarco shall have the right to control all negotiation, defense, and settlement of such a claim so long as the settlement does not require payment, admission, or action by Buyer; and, (ii) Buyer provides Gilbarco with prompt notice of such claim that Gilbarco’s right to defend the matter is not diminished in any way. If Gilbarco receives a claim for intellectual property infringement or misappropriation related to the Services, at its own discretion, Gilbarco may (i) obtain a license at no additional cost to Buyer for continued use of the Services; (ii) subject to the warranty, modify the Services so that they no longer infringe or misappropriate the intellectual property; or (iii) terminate the services upon 30 days’ written notice to Buyer with a refund to Buyer of any prepaid fees prorated for the remainder of the term;
(g) Buyer agrees to defend and hold harmless Gilbarco for any claims that (i) by contractors or third parties dispatched or notified of an alarm by Gilbarco on behalf of Buyer, relating to compensation for work performed associated with such dispatch or notice which was not covered by a Gilbarco warranty, and (ii) related to permitted uses of information and data Buyer provides in association with the services.
All information provided on this Site is subject to change without notice or liability. While efforts have been made to make this Site helpful and accurate, due to the need to obtain considerable amounts of information from third parties and the potential for errors in the storage and transmission of digital information, Gilbarco Inc. does not warrant the accuracy or completeness of information obtained from this Site. ALL MATERIALS POSTED ON THIS SITE ARE PROVIDED "AS IS" AND WITHOUT REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. GILBARCO INC. DOES NOT WARRANT THAT FUNCTIONS CONTAINED ON THIS SITE WILL BE UNINTERUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS SITE OR THE SERVER ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. GILBARCO INC. DOES NOT WARRANT OR REPRESENT THE USE OF THE MATERIALS ON THIS SITE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
Access and Use of Information
Gilbarco Inc. hereby grants you a nonexclusive, nontransferable, limited right to access, use and display this Site and the materials thereon. You agree not to interrupt or attempt to interrupt the operation of the Site in any way. You further agree not to use the contents of this Site for any commercial gain other than benefits achieved by your use or resale of the products sold on this Site.
This Site contains trademarks and service marks owned by Gilbarco Inc. and certain third parties. All marks are the property of their respective owners. This Site, including all the information contained herein, is protected by copyright law. All rights in the intellectual property contained in this Site including copyright, trademarks, trade secret and patent rights, whether or not protected by federal or state registrations, are reserved. Access to this Site does not constitute a right to use any of the intellectual property of Gilbarco Inc. or its third party Site content suppliers. You agree that any copy of the content of the Site must include Gilbarco Inc. copyright notice and shall be for your private use only. No other permission is granted to you to print, copy, reproduce, distribute, transmit, upload, download, store, display in public, alter, or modify the content contained on this Site. Statutory notice contained herein represents intellectual property status in the United States.
As a convenience to you, this Site may be linked to other sites which are owned, operated and maintained by other entities. If you use these links you will leave this Site. If you visit a linked site, you do so at your own risk and it is your responsibility to take all protective measures necessary to guard against viruses or other destructive elements which may be present at such linked site. GILBARCO INC DISCLAIMS ANY LIABILITY FOR LINKS: (I) FROM ANOTHER WEB SITE TO Gilbarco Inc. SITE; AND (II) TO ANOTHER WEB SITE FROM Gilbarco Inc. SITE. Gilbarco Inc. is not responsible for the content of such linked sites and makes no representations or warranties as to the accuracy or completeness of such site's content.
Changes & Restrictions to Access
Gilbarco Inc. reserves the right to change, modify, add or remove all or any portion of its Site at any time and from time to time. Gilbarco Inc. may also impose limits, restrictions, or termination on your access to all or part of the Site without notice or liability.
Governing Law; Limitations
Copyright © 2013 Gilbarco Inc.., A Fortive Company
Terms and Conditions of Purchase Order
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 Gilbarco Inc. (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.
- Changes: GILBARCO may at any time make changes in drawings, specifications, designs, 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 furnishings the goods or services covered hereby, and/or in the time required to perform this order, and 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. However, if GILBARCO decides that the facts justify such actions, it may receive and act upon any such claim at any time prior to final payment under this order. 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.
- 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. That 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 prices and shall be deemed to include all federal, state, and local taxes applicable to the sale of the goods and/or services ordered.
- 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 via premium routing to avoid or minimize delay to the maximum extent possible, the added cost to be borne by Seller. This is in addition to GILBARCO’s other remedies. Items received more than 15 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.
- Warranty: In addition to Seller’s standard warranty and all warranties implied by law, Seller warrants that at the time of delivery thereof all items delivered hereunder will be in strict conformity with the specifications (and approved sample, if furnished) and free from defects, including latent defects, which warranty shall survive inspection, delivery, and payment. 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 favorable 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.
- Inspection: Payment for the goods or services furnished hereunder shall not constitute acceptance thereof. All goods are subject to Buyer’s inspection, at the source if deemed necessary by Buyer or required by government regulation. If any of the 150327_Terms and Conditions for Purchase Order.docx 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.
- 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 and from any claims under any applicable Workmen’s Compensation and Occupational Disease Acts. Seller further agrees to indemnify GILBARCO and hold it harmless from and against any and all losses and expenses, including court costs and reasonable attorney 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 the defense of a claim, GILBARCO may require that adequate security be furnished against any potential resulting judgments.
- Termination: GILBARCO may terminate, for its convenience, work under this purchase order in whole or in part at any time by written or telegraphic notice 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, if this purchase order applies to the performance of a prime contract with the U.S. Government or a subcontract or purchase order thereunder, the terms and provisions regarding the rights of the parties hereto in termination set out below shall govern. 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.
- 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. This insolvency or adjudication of bankruptcy of the filing of a voluntary petition of bankruptcy or the institution by or against Seller or any proceeding under the Bankruptcy Act, 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.
- 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 Federal, State and local laws, regulations, and order. Without limiting the generality of the foregoing, Seller specifically agrees to comply with all applicable standards, provision and stipulations of the FAIR LABOR STANDARS ACT OF 1938, as amended (52 STAT. 1060, 29U.S.C. § 201), including specifically sections 6, 7, and 12 of the Act, and Seller shall so warrant and represent on each invoice for goods delivered pursuant hereto. Seller further warrants that the products, including the packing and packaging of such products, and/or services covered by this purchase order will comply with the regulations and standards of Pub. L.91-596 OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970 (29U.S.C.651-85STAT. 1950, 29U.S.C. § 651), and with Pub. L.92-573 CONSUMER PRODUCTS SAFETY ACT (86 STAT. 1207, 15 U.S.C. § 2051), the TOXIC SUBSTANCES CONTROL ACT, as amended, and 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.
- Equal Opportunity: Where no exemption applies the Seller shall comply with Executive Order 11246 as amended by Executive Order 11375 or any appropriate prior or subsequent Executive Order pertaining to nondiscriminatory personnel policies and practices, including the Rehabilitation Act of 1973, P.L. 93-112, 39 Fed. Reg. 113, June 11, 1974. Seller shall comply with any and all Local, State, and Federal Safety and Health Regulations which may be applicable and agrees to save GILBARCO harmless from any losses, damages, claims or demands of whatever nature which might arise as a result of Seller’s failure to observe said regulations. “Unless exempt, this Customer and Seller shall abide by the requirements of 41 150327_Terms and Conditions for Purchase Order.docx CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability. If applicable, the Customer and Seller shall also abide by the requirements 41 CFR § 61-300.10 regarding veterans’ employment reports and 29 CFR Part 471, Appendix A to Subpart A regarding posting a notice of employee rights.”
- 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.
- 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.
- Notice of Labor Dispute: Whenever Seller has knowledge that any actual or potential labor 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 labor dispute may delay this order.
- Assignment: No assignment of ant 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.
- Applicable Law: This order shall be governed by the Laws of the State of North Carolina.
- 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, Greensboro, N.C., unless otherwise specified. Invoices are not to cover more than one Purchase Order. Invoices for transportation charges must be supports 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.
- 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. The following contractual clauses apply to this order: A. Contractor* agrees to comply with all laws and regulations applicable to any activities carried out in the name of or on behalf of GILBARCO Inc. under this agreement and any amendments to it. B. Contractor* agrees that all financial settlements, billings, and reports rendered o GILBARCO Inc. under this agreement will fully and accurately report all transactions handled for the account of GILBARCO Inc. in reasonable detail. C. Contractor* agrees to notify GILBARCO Inc. promptly upon discovery of any failure to comply with the provisions of paragraphs (A) and (B) above. *Or any other designation used in this contract such as the term “Seller,” “Vendor,” or the contracting party’s names.
- Adequate Assurances: If the Seller’s financial condition is found to be or becomes unsatisfactory to Buyer during the term of this contract, or should Seller’s ability to perform become doubtful, Buyer may demand immediate assurance of performance, and in the event that such assurance is not forthcoming within 5 working days, Buyer may terminate this contract and also terminate all other contracts covering purchases buy Buyer of Seller’s products whether or not Seller may otherwise be in default, and no rights shall accrue to Seller against Buyer on account of such termination. Buyer’s duties hereunder are conditioned upon the continuance of the Seller’s solvency and Seller’s ability to perform within the delivery schedule.
- 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.
- Patents: Seller agrees to defend Buyer and its customers from any and all suits for infringements of letters patent, copyright, trademark, misappropriation of trade secrets, and/or breach of confidential relationship which suit results from the use or sales of goods, and delivered under this order, and will indemnify and hold Buyer and its customers harmless, in any such 150327_Terms and Conditions for Purchase Order.docx suit for any or all costs, and for recovery by way of profits, damages or otherwise arising out of such suit; provided, however, the foregoing shall not apply where goods are made to Buyer’s specification or design.
- Insurance: Seller shall maintain at all times during the performance of labor or services for Buyer under the contract which results from the acceptance of this order, workers’ compensation insurance with applicable statutory limits, employer’s liability of $1,000,000 limit, and comprehensive public liability insurance including products completed operations, automobile and contractual liability coverage’s with limits of $500,000/$1,000,000 bodily injury, and $500,000 property damage ($50,000 property damage-automobile) or a combines single unit of $1,000,000 per occurrence. Seller shall furnish an insurance certificate and/or state issued certificate evidencing the above coverages. Insurance certificates must be endorsed to provide that Buyer shall be notified in writing 10 days prior to any substantial modification or termination to the subject policy.
- Liens: If this order covers job site work, Seller shall be solely responsible for all claims of whatever nature arising out of nonpayment for services, labor, 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. Before final payment, or at any time upon Buyer’s request, Seller shall furnish Buyer with an affidavits conforming to the laws of the state in which the work is performed on in absence of any such law than an affidavit satisfactory to Buyer setting forth the names and amounts due to remaining unpaid to all persons furnishing services, labor, or materials hereunder. Buyer shall have the right to pay directly to all Seller’s creditors all such amounts as may be due them and deduct same from payments to Seller.
- Chemical Substances Identification: By acceptance of this purchase order, Seller certifies that the chemical substance(s) furnished pursuant to this order has been properly labeled, and that proper information of the substance(s), e.g. material safety data sheets, have been provided to Buyer pursuant to any Federal, State, or Local legislation.
- 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 labor trouble, fire, or unusually severe weather.
- Government Contracts: In the event that the order bears a governmental contract number on the face hereof, Seller agrees to comply with all pertinent provisions, agreements, and clauses of said contract, pertinent Presidential directives and executive orders, and all applicable regulations to the extent that they apply to the subject matter of this order and all such pertinent provisions, agreements, clauses, directives, executive orders, and regulations are hereby incorporated by reference. A copy of said contract of part thereof that Buyer deems applicable to this order will be given to the Seller upon request.
- 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 Federal, State, and Local regulations and will further comply with any special company requirements.