Purchase Order – Terms and Conditions
1. TERMS OF AGREEMENT
This Agreement shall apply to purchase transactions involving one of the following parties as the purchasing party: K.B.C. Group, Inc., Bratney Equipment Co., or The Ken Bratney Co. For the purposes of this Agreement, the purchasing party shall be referred to herein generically as “BRATNEY,” however this practice is strictly for the convenience of the Parties, and shall not have the effect of (nor is it the intent of the Parties to) expand the duties and/or liabilities created hereunder to any company or individuals other than that party which is specifically contracting with the vendor or seller under the terms of the applicable purchase order. The purchase order, together with these terms and conditions, and any attachments and exhibits, specifications, drawings, notes, instructions and other information incorporated by reference (collectively the “Purchase Order”), constitutes the entire and exclusive agreement between BRATNEY and the vendor or seller identified in this Purchase Order, including its subsidiaries, agents and assigns as identified in the Purchase Order (collectively, the “Supplier”). BRATNEY’s submission of the Purchase Order is conditioned on Supplier’s agreement that any terms different from or in addition to the terms of the Purchase Order, contained in any purchase order confirmation, invoice, acknowledgement, release, acceptance or other written correspondence, irrespective of the timing, shall not form a part of the Purchase Order, even if Supplier purports to condition its acceptance of the Purchase Order on BRATNEY’s agreement to such different or additional terms. Supplier’s execution of the Purchase Order or acceptance of any payment from BRATNEY shall constitute Supplier’s consent to and acceptance of these terms and conditions. The Purchase Order does not constitute a firm offer and may be revoked at any time prior to acceptance. Notwithstanding the foregoing, if a master agreement covering procurement of the Products or Work described in the Purchase Order exists between Supplier and BRATNEY, the terms of such master agreement shall prevail over any inconsistent terms herein.
2.1 “Day” means calendar day unless noted otherwise.
2.2 “Deliverables” means the deliverables specified in the Purchase Order (and any Statement of Work) to be delivered on or before the Delivery Date.
2.3 “Delivery Date” means the date or dates specified in the Purchase Order by which the Supplier is required to deliver the Work.
2.4 “Intellectual Property Rights” means any and all tangible and intangible: (i) copyrights and other rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents, designs, algorithms, utility models, and other industrial property rights, and all improvements thereto; and (v) all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise.
2.5 “Product” means tangible goods specified the Purchase Order to be delivered on or before the Delivery Date.
2.6 “Services” means the services that Supplier is to perform for BRATNEY specified in the Purchase Order.
2.7 “Statement of Work” or “SOW” means the document specifying, without limitation, the scope, objective, and time frame of the Work that Supplier will perform for BRATNEY.
2.8 “Subcontractor” means a third party performing Work under an agreement (a “Subcontract”) with Supplier.
2.9 “Supplier Personnel” means Supplier’s employees, consultants, agents, independent contractors and Subcontractors.
2.10 “Third Party Intellectual Property” means the Intellectual Property Rights of a third party which Supplier uses or incorporates into the Work.
2.11 “Work” means the Deliverables, Products and Services specified in the Purchase Order, including any SOW.
3.1 Time is of the essence in Supplier’s performance of its obligations under Section 3 of the Purchase Order, however, Supplier shall not be held liable for failure to timely perform its obligations where such failure is due to circumstances beyond Supplier’s reasonable control. Supplier will immediately notify BRATNEY if Supplier’s timely performance under the Purchase Order is delayed or is likely to be delayed. BRATNEY’s acceptance of Supplier’s notice will not constitute BRATNEY’s waiver of any of Supplier’s obligations.
3.2 Regardless of cause of delay, BRATNEY may, at its option, reject or cancel any Work, or portion thereof, which Supplier is unable to deliver within fifteen (15) Days of the Delivery Date, where such delay, in the sole discretion of BRATNEY, would materially affect BRATNEY’s project schedule.
3.3 If Supplier does not conform to shipping instructions provided on the Purchase Order, Supplier may be held accountable for the monetary difference in freight.
3.4 Supplier will package and handle the Deliverables and Products so as to protect the Deliverables and Work Product from loss or damage and in accordance with best commercial practices in the absence of any specifications BRATNEY may provide.
3.5 Supplier will include with each delivery of Products a packing list identifying the Purchase Order number, the BRATNEY part number or piece mark for each of the Products (if applicable), a description and the quantity of each of the Products, and the date of shipment.
3.6 Unless BRATNEY expressly instructs otherwise, Supplier will deliver all Work F.O.B. point of manufacture. BRATNEY assumes responsibility for all shipping and delivery charges including, without limitation, customs, duties, costs, taxes and insurance unless otherwise specified on the Purchase Order. Risk of loss of the Work passes to BRATNEY upon acceptance in accordance with Section 6.
4. PRICE AND PAYMENT
4.1 Unless otherwise specified in the Purchase Order, the price for the Work excludes all taxes and other charges such as shipping and delivery charges, duties, customs, tariffs, imposts and government-imposed surcharges. Supplier shall use its best efforts to assist BRATNEY in all legal efforts to minimize the taxes resulting from the performance of this Purchase Order.
4.2 BRATNEY will make timely payments to Supplier within thirty (30) Days of receipt of a properly prepared final invoice. BRATNEY will make final payment to Supplier within thirty (30) Days following the later of: (i) the Delivery Date; (ii) the date of BRATNEY’s acceptance of all of the Work; or (iii) BRATNEY’s receipt of a properly prepared final invoice. A properly prepared invoice must include the Purchase Order number and, if requiredin the Purchase Order, Supplier’s certification of conformance of the Work to the requirements. Payment will be in U.S. dollars unless noted differently in the Purchase Order.
5. OWNERSHIP AND LICENSE
Upon payment of final invoice, BRATNEY shall be the sole and exclusive owner of all Deliverables.
6. INSPECTION AND ACCEPTANCE
BRATNEY may reject damaged or defective Work within fifteen (15) days of Supplier’s delivery of the Work. At BRATNEY’s option, and with Supplier’s prior approval, BRATNEY may (i) return the damaged or defective Work to Supplier for a refund or credits; or (ii) require Supplier to repair or replace the damaged or defective Work at Supplier’s cost. As an alternative to (i) or (ii), BRATNEY may accept the damaged or defective Work conditioned on Supplier providing a refund or credit in an amount to be mutually agreed upon to represent the diminished value of the damaged or defective Work. BRATNEY’s payment to Supplier for Work prior to BRATNEY’s timely rejection of such Work as damaged or defective will not be deemed as acceptance by BRATNEY. However, it is understood that rejection of damaged or defective Work may only occur for damage or defect in
material or workmanship which substantially affect the value of the Work. Claims for lesser damage or defect would be resolved in accordance with the contract warranty terms.
7.1 BRATNEY may, at any time, change the Work by changing (i) the quantity of the Work (ii) the scope of Services; (iii) the Delivery Date; (iv) applicable drawings, designs, and specifications, (v) the method of shipment or packing; (vi) the place of delivery of the Work; or (vii) the location for Services to be performed.
7.2 If a change by BRATNEY under Subsection 7.1 causes an increase or decrease in the cost of or the time required for Supplier’s performance, then the price, Delivery Date or both will be equitably adjusted, and the parties will amend the Purchase Order accordingly in writing. Supplier will request an equitable adjustment no later than twenty (20) days from Supplier’s receipt of BRATNEY’s notification of a change; provided, however, that BRATNEY may extend the request period upon Supplier’s request.
7.3 Supplier will proceed with the Work pending negotiation of an equitable adjustment and amendment of the Purchase Order. In the event that it is not reasonably practical to proceed with the Work pending negotiation, Supplier shall make best efforts to reserve production time and/or take other such measures necessary to maintain the Delivery Date pending negotiation, so as to cause minimal impact to BRATNEY’s project schedule.
8. REPRESENTATIONS AND WARRANTIES
8.1 Supplier represents and warrants that (i) it has the full power to enter into the Purchase Order and to perform its obligations under the Purchase Order; (ii) it has the right and unrestricted ability to assign the Work to BRATNEY including, without limitation, the right to assign any Work performed by Supplier Personnel; (iii) Software supplied by Supplier does not contain any code which will intentionally harm or disrupt BRATNEY’s operations and/or business; and, (iv) Supplier’s Work conforms to BRATNEY’s specifications, Supplier’s quotation or proposal.
8.2 Seller warrants that its Products and Services will, at time of delivery, be free from defects in materials and workmanship. Seller guarantees and warrants that the Products and Services and every item specified in the SOW shall be new (unless otherwise specified in the SOW) and (a) meet all the requirements of the SOW and Supplier’s specifications and (b) will be otherwise free of defects in design, material and workmanship. This guarantee and Warranty shall be in effect until twelve (12) months after commencement of operations of the facilities in which the Products or Services are utilized or incorporated, or twenty-four (24) months after the last actual delivery date, whichever is earlier. Upon BRATNEY’s submission of a claim
as provided above and substantiation thereof, Supplier shall promptly repair or replace its nonconforming product. Supplier shall also be liable for the cost of removal or reinstallation of materials and any associated transportation cost.
9.1 Supplier may not assign any of its rights or delegate any of its obligations under the Purchase Order without BRATNEY’s prior written consent. BRATNEY may, at its option, void any attempted assignment or delegation undertaken without BRATNEY's prior written consent.
9.2 Supplier may not subcontract any of its rights or obligations under the Purchase Order without BRATNEY’s prior written consent. If BRATNEY consents to Supplier’s use of a subcontractor or sub-supplier (individually, each a “Subcontractor”), Supplier will provide BRATNEY with the terms available from the Subcontractor and indemnify BRATNEY for all damages and costs of any kind, subject to the limitations in Section 12 (Indemnification), incurred by BRATNEY or any third party and caused, in whole or in part, by the acts and omissions of Supplier’s Subcontractors’ and (iii) make all payments to its Subcontractors. If Supplier fails to timely pay a Subcontractor for work performed, BRATNEY will have the right, but not the obligation, to pay the Subcontractor and offset any amount due to Supplier by any amount paid to the Subcontractor. Supplier will defend, indemnify and hold BRATNEY harmless for all direct damages and costs, incurred by BRATNEY and caused by Supplier’s failure to pay a Subcontractor.
9.3 To the extent allowed by applicable law, no person who is not a party to Purchase Order shall be entitled to enforce or take the benefit of any of its terms whether as a result of applicable legislation, custom or otherwise.
10. TERM AND TERMINATION
10.1 The Purchase Order will remain in effect with respect to any SOW already issued prior to expiration of the term of the Purchase Order until such SOW is either terminated or the Work is completed and accepted.
10.2 BRATNEY may terminate this Purchase Order, any SOW, or both at any time, for no reason or for any reason, upon fifteen (15) days’ written notice to Supplier. Upon receipt of notice of such termination, Supplier will inform BRATNEY of the extent to which it has completed performance as of the date of the notice, and Supplier will collect and deliver to BRATNEY whatever Work then exists. BRATNEY will pay Supplier for all Work performed according to the SOW through the effective date of the termination, provided that BRATNEY will not be obligated to pay any more than the payment that would have become due had Supplier completed and BRATNEY had accepted the Work. BRATNEY will have no further payment obligation in connection with any termination.
10.3 Either party may terminate the Purchase Order, any SOW or both, immediately by delivering written notice to the other party upon the occurrence of any of the following events: (i) a receiver is appointed for either party or its property; (ii) either makes a general assignment for the benefit of its creditors; (iii) either party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor's relief law, if such proceedings are not dismissed within 60 days; or (iv) either party is liquidating, dissolving, or ceasing to do business in the ordinary course.
10.4 Either party may terminate this Purchase Order, any SOW or both, immediately by delivering written notice to the other party for any material breach not cured within seven (7) business days of receipt of notice of the breach. BRATNEY shall have no further payment obligation to Supplier under any terminated SOW if BRATNEY terminates the SOW under this Subsection 10.4.
10.5 Any obligations or duties which, by their nature, extend beyond the expiration or termination of the Purchase Order shall survive the expiration or termination of the Purchase Order.
11. CONFIDENTIAL INFORMATION AND PUBLICITY
11.1 For purposes of this Purchase Order, “Confidential Information” shall mean and include: the know-how; discoveries; production methods; price lists, costs of Work, services, equipment and materials furnished in relation to the Purchase Order; cost and time estimates and estimating systems; any methods, formulas, means or detailed explanations of proprietary production methods owned by BRATNEY or an affiliated third party; or any other information not listed here, but which may reasonably be considered confidential or proprietary.
11.2 Supplier shall treat as confidential and not disclose to any party, except to Subcontractors as necessary for the performance of the Work, any Confidential Information that may be disclosed to Subcontractor in connection with the performance of this Purchase Order.
11.3 In the event that any public disclosure of this Purchase Order or any attachment, appendix, or part thereof, is required by law, both Supplier and BRATNEY shall work together to ensure that no Confidential Information is unnecessarily disclosed. In no case shall Supplier endeavor to make any such disclosure without the signed written permission of BRATNEY, which shall not be unreasonably withheld.
11.4 This Section 11 shall survive termination or expiration of this Agreement.
11.5 Any Subcontract agreement entered into by Supplier shall contain a substantially identical confidentiality provision as contained in this Section 11. Subcontractor hereby accepts liability for any loss resulting from the disclosure of Confidential Information by the Supplier to a Subcontractor or to any other party.
11.6 If BRATNEY and Supplier have entered into a Non-Disclosure Agreement (“NDA”) which covers disclosure of confidential information under the Purchase Order, and if the term of the NDA expires before the expiration or termination of the Purchase Order, then the term of the NDA shall be automatically extended to match the term of the Purchase Order, and to the extent of any difference or conflict between any provision of this Section 11 and any provision of the NDA, the provision more protective of the Confidential Information shall control.
11.7 The parties shall treat the terms, conditions, and existence of the Purchase Order as Confidential Information as defined in the Purchase Order and/or the NDA.
11.8 Supplier shall obtain BRATNEY’s written consent prior to any publication, presentation, public announcement, or press release concerning its relationship as a supplier to BRATNEY.
12.1 As used in this Section 12, a “Claim” is any claim, demand, loss, damage, liability, cost or expense (including reasonable professional fees and costs as incurred) for which one party (the “Indemnifying Party”) may be obligated to defend, indemnify and hold the other party (the “Indemnified Party”) harmless.
12.2 Supplier shall defend, indemnify and hold BRATNEY harmless from and against any and all Claims as incurred, arising out of or in connection with any (i) negligent act or omission of Supplier (including its Subcontractors, as set forth in Section 9) in the performance of the Work, including bodily harm or property damage resulting therefrom; or (ii) any infringement of a third party’s Intellectual Property Rights or any other rights.
12.3 BRATNEY shall indemnify and hold Supplier harmless from and against any and all Claims as incurred, to the extent such Claims are for bodily injury or property damage and arise out of or are in connection with: (i) Supplier’s use of BRATNEY’s products or services in connection with the Work; (ii) Supplier’s use of information or materials provided to Supplier by BRATNEY; or (iii) infringement of a third party’s Intellectual Property Rights or any other rights directly resulting from Supplier’s adherence to BRATNEY’s written instructions. BRATNEY’s obligation to indemnify Supplier is strictly limited to the extent caused by the negligent acts or omissions of BRATNEY. BRATNEY is not required to indemnify or hold harmless Supplier for any negligence of Supplier.
12.4 Each party will indemnify and hold the other party harmless from and against any and all Claims, as incurred, to the extent arising out of any negligent or willful acts or omissions of the Indemnifying Party which results in personal injury (including death) or damage to tangible property (not including lost or damaged data).
12.5 The Indemnified Party will provide the Indemnifying Party with prompt written notice of the Claim and permit the Indemnifying Party to control the defense, settlement, adjustment, or compromise of any Claim. The Indemnified Party may employ counsel at its own expense to assist it with respect to any Claim. The Indemnified Party will have no authority to settle any Claim on the Indemnified Party’s behalf.
12.6 If a third party enjoins or interferes with BRATNEY’s use of the Work provided by Supplier due to infringement of any United States patent, then in addition to Supplier’s obligations under Subsection 12.2, Supplier will use its best efforts to (i) obtain any licenses necessary to permit BRATNEY to continue to use the Work; (ii) replace or modify the Work as necessary to permit BRATNEY to continue to use the Work; or if (i) and (ii) are not commercially reasonable, then (iii) promptly refund to BRATNEY the amount paid for any Work for which a third party enjoins or interferes with BRATNEY’s use of the Work to the extent such claim charges infringement of the Work by Supplier's product in and of itself, provided (i) said product is built entirely to Supplier design, (ii) BRATNEY notifies Supplier in writing of the filing of such suit within twenty (20) days after the service thereof, and (iii) Supplier is given complete control of the defense of such suit, including the right to defend, settle and make changes in the product for the purpose of avoiding infringement. If in any suit covered by this provision the use of products is enjoined, Supplier shall at its sole cost and expense either (i) procure for BRATNEY the right to continue using the products, (ii) replace the products with non-infringing products, (iii) modify the products to be non-infringing, or (i) remove the products and refund to BRATNEY the purchase price, transportation, and installation costs thereof. Supplier shall have no liability with respect to patent rights of countries other than the United States. The foregoing shall be Supplier's sole and entire liability and BRATNEY’s sole remedy with respect to patent infringement for products under this Purchase Order.
12.7 Nothing in this Section 12 shall limit any other remedy of the parties.
13.1 NOTWITHSTANDING ANYTHING ELSE IN THE PURCHASE ORDER OR OTHERWISE, BRATNEY SHALL NOT BE LIABLE TO THE SUPPLIER WITH RESPECT TO THE SUBJECT MATTER OF THE PURCHASE ORDER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS OF THE AMOUNT OF THE PURCHASE ORDER.
13.2 IN NO EVENT WILL BRATNEY BE LIABLE TO THE SUPPLIER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS ARISING OUT OF, OR IN CONNECTION WITH, THE PURCHASE ORDER, WHETHER OR NOT EITHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
13.3 THE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. NOTHING IN THE PURCHASE ORDER LIMITS EITHER PARTY'S LIABILITY FOR BODILY INJURY OF A PERSON, DEATH, OR PHYSICAL DAMAGE TO PROPERTY OR ANY LIABILITY WHICH CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
Supplier shall secure and maintain insurance to cover its liabilities under the Purchase Order to third parties for bodily injury (personal injury) and damage to property in amounts sufficient to protect BRATNEY in the event of such injury or damage, but only to the extent of Supplier's indemnity and warranty obligations under the Purchase Order. All insurance must be with companies licensed in the jurisdiction in which the services are performed. No insurance will be deemed to be in effect until satisfactory certificates thereof are delivered to BRATNEY containing provisions requiring the insurance carrier to notify BRATNEY at least thirty (30) days prior to any expiration or termination of, or modification to, the policy. In addition, all such policies shall include BRATNEY as an additional insured and contain a waiver of subrogation against BRATNEY. Supplier further will maintain such additional types and limits of insurance as is customary for a company of similar size and similar operations to Supplier in the jurisdiction or jurisdictions in which Supplier’s operations take place.
15. COMPLIANCE WITH LAWS.
Supplier represents and warrants that it will comply with all applicable local and national laws and regulations pertaining to its performance of its obligations under this Purchase Order. In particular and without limitation, Supplier shall not act in any fashion or take any action that will render BRATNEY liable for a violation of the U.S. Foreign Corrupt Practices Act (“FCPA”), which prohibits the offering, giving or promising to offer or give, directly or indirectly, money or anything of value to any official of a government, political party or instrumentality to assist it or BRATNEY in obtaining or retaining business or in carrying out the Services. Supplier’s failure to comply with the FCPA shall constitute a material breach of this Purchase Order.
16. GOVERNING LAW AND VENUE
The Purchase Order will be construed in accordance with, and all disputes will be governed by, the laws of the State of Iowa, without regard to its conflict of laws rules. The sole and exclusive venue for any proceedings arising out of or relating to this Purchase Order shall be vested in the state and federal courts in and for Polk County, Iowa. Further, Supplier irrevocably consents to the personal jurisdiction of such courts, and irrevocably waives any claim it may have that any proceedings brought in such courts have been brought in an inconvenient forum.
17.1 Any notice to be given under the Purchase Order shall be in writing and addressed to the party at the address stated on the front of the Purchase Order. Notices will be deemed given and effective (i) if personally delivered, upon delivery, (ii) if sent by an overnight service with tracking capabilities, upon receipt; (iii) if sent by fax or electronic mail, at such time as the party which sent the notice receives confirmation of receipt by the applicable method of transmittal; or (iv) if sent by certified or registered mail, within five (5) days of deposit in the mail.
17.2 If there is a conflict between or among the Purchase Order and any documents attached to and incorporated by reference, the conflict will be resolved as follows:
17.2.1 A conflict between the terms of the Purchase Order and those set forth in an exhibit or hyperlink will be resolved in favor of the Purchase Order.
17.2.2 A conflict between the terms of the Purchase Order and those set forth in an SOW will be resolved in favor of the SOW.
17.2.3 A conflict between the terms of an exhibit or hyperlink and those set forth in an SOW will be resolved in favor of the SOW.
17.3 If any court of competent jurisdiction holds that any provision of the Purchase Order is illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of the Purchase Order will not be affected or impaired, and all remaining terms of this Purchase Order shall remain in full force and effect, provided that this provision shall not be applied to defeat the intent of the parties.
17.4 A party’s election not to insist on strict performance of any requirement of the Purchase Order will not operate or be construed to waive any future omission or breach, or any other provision of the Purchase Order.
17.5 The terms of the Purchase Order were freely negotiated by all the parties and shall not be construed against any one as the drafter.
18. BINDING ARBITRATION
Buyer and Seller shall attempt, in good faith, to resolve any dispute arising out of or relating to this Purchase Order agreement, or the products and/or services provided hereunder, promptly by negotiation between the parties’ senior executives. If the matter has not been resolved within sixty (60) days of a party's request for negotiation, either party may initiate arbitration as hereinafter provided. Any dispute arising out of or related to this agreement or the products and/or services provided hereunder which has not been resolved by the negotiation procedure described above, shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Unless Buyer and Seller otherwise agree in writing, the arbitration panel shall consist of three arbitrators. The arbitrator(s) shall have no authority to award consequential, punitive or other damages not measured by the prevailing party's actual damages and may not, in any event, make any ruling, finding or award that does not conform to the terms and conditions of this agreement. The arbitration proceeding shall be conducted in English in Des Moines, IA. At the option of BRATNEY, the location of Arbitration may be moved for convenience to the nearest major city within the state where the facility using the Product is located.