Terms and Conditions of Purchase (Consultants)
The term “Purchaser” means CTE, Carolina Tractor & Equipment Company, LiftOne LLC, Power Products & Solutions LLC, its affiliates and subsidiaries (individually and collectively). The term “Consultant” means any individual, corporation, or other entity performing the Services purchased by or otherwise provided to Purchaser pursuant to this Purchase Order. The term “Services” means all services furnished by Consultant and purchased by or otherwise provided to Purchaser under this Purchase Order, and includes all ancillary goods, products, materials and transport services provided by Consultant to Purchaser under this Purchase Order.
The Terms & Conditions set forth below (“Terms & Conditions”) have been issued to you as a potential Consultant to Purchaser and are the terms and conditions by which Consultant agrees to sell and deliver and Purchaser agrees to purchase and receive the Services specified on the Purchase Order. Upon acceptance by Consultant of the Purchase Order to which these Terms & Conditions are attached, the Purchase Order and Terms & Conditions shall become a binding contract between Consultant and Purchaser (the “Agreement”).
If Purchaser issues a firm offer to purchase from Consultant pursuant to a Purchase Order, then, in the event of a counteroffer by Consultant, Consultant acknowledges and agrees that a contract does not exist between the parties on the terms proffered by Consultant unless and until Purchaser accepts such counteroffer in writing. Any performance by Consultant 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 Consultant.
Except as otherwise stated in this Agreement, Consultant shall submit invoices upon Consultant’s completion of all Services. Each such invoice shall be submitted by Consultant to the location shown in the Purchase Order, and shall include: (i) the Purchase Order number, (ii) an itemization of the specific Services provided by Consultant; (iii) the applicable date of Delivery for all such Services; (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 Services have been delivered. If Consultant is providing Services 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 Services provided by Consultant within forty-five (45) days following the later of: (i) the date of Delivery; or (ii) the date of Purchaser’s actual receipt from Consultant, 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 Consultant: (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 Consultant, 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 Consultant hereunder for amounts owed by Consultant to Purchaser, whether or not pursuant to this Agreement.
Acceptance of any Services (“Acceptance”) or any portion thereof by Purchaser shall not relieve Consultant 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 Services does not constitute Acceptance of Services. Payments for Services shall not constitute Acceptance of the Services and shall not be considered as evidence of satisfactory performance of the Services by Consultant, either in whole or in part, nor shall any payment be construed as Acceptance by Purchaser of any defective part of the Services.
Modifications proposed by Consultant 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 Consultant’s surety, if any, make changes in, additions to, or deletions from the Services to be performed pursuant to this Agreement. If any such change significantly increases or decreases the time required for the performance of Consultant’s obligations hereunder, an equitable adjustment shall be made in the Consultant’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 Consultant of performing the Services, then there shall be an equitable adjustment in the compensation to Consultant for the Services (the “Compensation”).
Consultant shall be an independent contractor of Purchaser. This Agreement is not intended to and shall not be construed or interpreted to create an employment or agency relationship, joint venture or partnership between Purchaser and Consultant. Consultant shall have no right or authority to bind Purchaser with respect to any obligation or agreement. Consultant is solely responsible for all deductions and withholdings for federal, state and local taxes for itself and any of its employees.
Consultant 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) Consultant’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 Services. Nothing herein shall be construed as making Consultant liable for any injuries, deaths or damage caused by the gross negligence or willful misconduct of Purchaser.
Before beginning performance, Consultant shall provide certificates of insurance to Purchaser evidencing Consultant's coverages and limits required by this Agreement. Consultant 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. Consultant and Consultant’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. Consultant shall obtain and maintain, and require its subcontractors to obtain and maintain, the following minimum policies of insurance during the term hereof:
|A) Commercial General Liability
|B) Automobile Liability (All owned,
Hired, Non-Owened Vehicles)
|C) Workers Compensation
|D) Certificate Holder
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 services provided by the Consultant. The non-receipt of a Certificate of Insurance does not invalidate the insurance requirements stated herein.
REPRESENTATIONS AND WARRANTIES
Consultant warrants and represents to Purchaser that the Services shall: (i) be performed in a good and workmanlike manner in accordance with professional industry standards (with the level of skill, knowledge and judgment required or reasonably expected of providers of comparable services), (ii) meet the specifications, drawings, descriptions and other terms of this Agreement, and (iii) be free from defects, latent and patent. This warranty for quality of Services shall be effective for two (2) years after Acceptance of all Services.
Consultant further warrants that it has the valid and legal right to enter into this Agreement and that the performance of its obligations hereunder will not violate the terms of any other agreement to which Consultant is a party, nor conflict with the rights of any third party. Consultant shall not become engaged during the term of this Agreement with any third party or pursuant to any other agreement that will interfere or conflict with Consultant’s obligations of performance under this Agreement. Time is of the essence with respect to any time for performance or completion stated in the Purchase Order. Consultant shall promptly replace any personnel whose performance of the Services or conduct Purchaser deems unsatisfactory.
Neither Purchaser nor Consultant 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 Consultant specifying the Services to be terminated (the “Terminated Services”). Such termination is to be effective as specified in Purchaser’s notice but not earlier than one (1) day after Consultant’s receipt of such notice. Upon receipt of such notice, Consultant shall: (i) discontinue the Terminated Services in accordance with the Purchaser’s instructions, (ii) thereafter perform only such portion of the Services not terminated, (iii) not place further orders or enter into further subcontracts for Services relating to the Terminated Services, and (iv) terminate all existing orders and subcontracts insofar as such orders and subcontracts relate to the performance of the Terminated Services. Within thirty (30) days after the effective date of termination, or such later date as may be mutually agreed to by the parties, Consultant shall provide Purchaser with a detailed summary and supporting documentation that identifies costs incurred by Consultant 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 Consultant the summary and supporting documentation of the Termination Costs. Prior to determining the amount of any amounts actually due to Consultant 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 Consultant that were allocable to the completed portion of the Services and by any claims Purchaser may have against Consultant in connection with the completed portion of the Services. If the payments previously made to Consultant by Purchaser exceed the Termination Costs as determined in accordance with the preceding sentence, Consultant 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 Consultant with respect to the Terminated Services.
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”). All works of original authorship, ideas, inventions (whether patentable, patented or not), know-how, processes, compilations of information, and other intellectual property created by Consultant 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. Consultant agrees that all such Proprietary Materials created by Consultant 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.
In connection with the Purchase Order, Consultant 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”). Consultant 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 Consultant; (b) was known to Consultant prior to its receipt from Purchaser as evidenced in writing; (c) is developed by Consultant independently of its access to Purchaser’s Confidential Information; or (d) is required to be disclosed by law or court order. Consultant 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 Consultant no less stringent than the confidentiality obligations herein. Consultant shall be liable for any breach of this section by its Agents. Upon termination of the Agreement, Consultant 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. Consultant’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.
Consultant shall not refer to Purchaser, this Agreement, or any relationship between Purchaser and Consultant in advertising or public releases without Purchaser’s written approval.
COMPLIANCE WITH LAWS
Consultant 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 Consultant’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.
Consultant 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 Services, or for delays or stop work orders imposed by a government agency or court due to Consultant’s noncompliance with federal, state or local law, regulation, rule or ordinance pertaining to the Services.
Prior to beginning Services hereunder, Consultant shall have established policies and procedures which meet or exceed the requirements of all applicable federal, state and local laws, regulations, rules, orders, ordinances, and accepted industry practices, relating to health and safety in the field of the Services to be provided, and Consultant shall have trained all of Consultant’s employees, sub-contractors and agents who shall perform the Services to abide by same. During the performance of the Services, Consultant shall comply with its own policies and procedures, and with federal, state and local law, regulation, rule, order, ordinance, and accepted industry practice relating to health and safety in the field of the Services performed hereunder. Vendor shall take all reasonable precautions to promote safety and shall provide all reasonable protections to prevent damage, injury or loss to: (i) all persons employed by or under contract to Vendor in connection with the Services hereunder and all other persons who may be affected thereby, (ii) all materials and equipment to be incorporated into or otherwise made a part of the Services under the care, custody or control of Vendor or its suppliers, and (iii) all other property at the project site in the course of performance of the Services. Additionally, Consultant shall be responsible for providing its employees, sub-contractors and agents, and suppliers working on the project site with all safety equipment, including without limitation, hardhats, protective eyewear, earplugs, respirators, work gloves and all other necessary protective and medical equipment.
PERMITS AND LICENSES
Consultant 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. Consultant shall hold and maintain such licenses and permits for so long as this Agreement shall remain in effect. Consultant and all subcontractors shall comply with all federal, state, or local laws that require registration and licensing of consultants, contractors and subcontractors. If requested, Consultant 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.
SUPPLEMENTAL TERMS FOR SERVICES PERFORMED AT PURCHASER’S SITE
In addition to the forgoing terms and conditions, Consultants furnishing services to Purchaser, at any of Purchaser’s facilities or on Purchaser’s premises, shall be bound by the following:
- General Conditions
Consultant represents that it has examined the site, that it is familiar with Purchaser’s and other contractors’ operations in the area thereof, and that its proposal is based upon full knowledge of all conditions affecting the performance of Consultant’s services, all of which shall be performed in such manner as to cause the least interference with Purchaser’s operations. All materials and equipment shipped to the site shall be consigned direct to Consultant, who shall pay all freight and demurrage charges and handle with the carrier involved all other matters pertaining to such shipment.
Consultant shall also be responsible for the unloading, checking, and storage of all materials and equipment. All workmanship and materials shall be subject to the written approval of Purchaser’s representative, and Consultant shall bear the expense of completing rejected Services and making good other work affected thereby. The requirements of all laws, ordinances, and regulations shall be observed, and Consultant shall obtain and bear the cost of all required permits, licenses, and/or inspections.
- Safety Provisions
Consultant shall comply with all safety rules and practices established by Purchaser and with all applicable state and local safety and sanitary laws, regulations, and ordinances, and shall advise Purchaser promptly of any situation it deems to be unsafe. Consultant’s disregard for or continued violation of such laws, rules, and regulations shall be deemed a material breach of this Agreement. Consultant shall at all times protect all persons and property from injury, damage, or loss, and shall use only duly inspected and certified equipment and duly licensed and qualified operators. Consultant shall furnish its personnel and those working under Consultant’s direction with all required protective equipment and shall enforce proper use of such protective equipment.
This Agreement, together with all attachments and incorporated references, is the entire agreement between Purchaser and Consultant with respect to the Services 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.