All orders by Excel Foundry & Machine, a d/b/a of FLSmidth A/S are subject to the terms, provisions and conditions as set forth herein. Orders must be shipped as specified unless authorized differently in writing. Excel charges back transportation cost if our instructions are not followed.
Upon acceptance by Seller as defined on the face hereof, or when confirming a previous oral agreement, this purchase order shall supersede all other written or oral agreements, and shall constitute a valid and binding contract. The contract so formed shall include all contract documents as defined herein and such contract documents are hereby incorporated by reference. In the event Seller’s quotation, acknowledgment, confirmation, invoice or other forms state terms additional to or different from those set forth herein, this purchase order shall be deemed a notification of objection to such additional or different terms and a rejection thereof. No modification of this order including terms and conditions herein stated shall be binding on Purchaser unless made in writing and signed by Purchaser’s representative.
As used in these Terms and Conditions:
a. “Materials” means any materials, machinery, equipment, components, item, work, or services provided for in this purchase order.
b. “Seller” means the person, firm, or corporation to whom this purchase order is issued;
c. “Purchaser” means Excel Foundry & Machine, a d/b/a of FLSmidth A/S or any of its subsidiaries or affiliates on whose behalf this purchase order is submitted, as indicated on the face hereof;
d. “Owner” means the person, firm, or corporation owning the plant for which the materials are purchased or leased under this purchase order;
e. “Contractor” means any person, other than Owner with whom Purchaser has a contract;
f. “Contract Documents” means the contract between Seller and Purchaser, including the terms and conditions written on the face hereof, these printed terms and conditions and any drawings,
specifications or other documents referred to or incorporated herein or therein.
a. Purchaser may at any time, by written notice, without notice to any sureties or assignees, make changes to this purchase order, including, but not limited to, changes in quantity, size or capacity, in drawings and specifications, methods of shipment and packaging, performance schedules or place of delivery. Should any change increase or decrease the cost of, or the time required for performance of this purchase order, an equitable adjustment shall be made to price or delivery schedule or both, as the case may be, to be reflected in a written modification of this purchase order. No claim by Seller for such adjustment will be valid unless received by Purchaser within ten (10) days of such change, or such longer period as may be authorized by Purchaser in writing. Nothing contained in this clause shall relieve Seller from proceeding without delay in performance of this purchase order as directed without regard to whether a proper adjustment has yet been made.
b. Seller may deviate from the specified requirements only with written approval of the Purchaser. All proposed deviations shall be clearly shown on shop drawings and catalogs and shall be clearly shown on shop drawings and catalogs and shall be fully described in their transmittal letter. Any and all costs or damages incurred as result of deviation will be paid by the Seller. Furthermore, Seller shall make no shipment of nonconforming materials as an accommodation or otherwise, unless so authorized by Purchaser in writing.
Unless otherwise stated in this purchase order, all prices set forth on this order are firm prices and not subject to escalation of any kind without Purchaser’s prior written approval.
The information transmitted in connection with this order is not public, but belongs to the Buyer or Owner which has provided it solely for an expressly restricted private use. All persons, firms or corporations who receive such information shall be deemed by their act of receiving or using same to have agreed to make no duplication or other disclosure or use whatsoever of any or all such information except such restricted use as expressly authorized in writing by the Purchaser. Such information shall at all times remain the property of Purchaser or Owner and shall be returned promptly upon written request.
Seller will indemnify and hold harmless Purchaser, its agents, customers and users of its products against any claims, liabilities, damages, losses, settlements and expenses including attorney’s fees, sustained by reason of infringement of any patent, trademark, trade secret, copyright or similar right or claim of unfair competition with respect to anything furnished hereunder. Seller shall at its own expense, defend all claims, suits and actions against Purchaser, its agents or customers, and users of its materials in which such infringement or claim is alleged.
Seller shall discharge at once, or shall furnish to Purchaser a bond satisfactory to Purchaser against any mechanic’s lien or other lien, encumbrance or claim which may be filed in connection with the work performed under this purchase order. Seller hereby expressly waives and releases any and all right of lien in connection with such work and agrees to furnish, or cause to be furnished, to Purchaser, such waiver of lien as may be requested by Purchaser as a condition precedent to any payment hereunder or otherwise. If, at any time, there should be evidence of any lien or claim for which Purchaser might become liable, Purchaser shall have the right to retain out of any payment then due or thereafter to become due to Seller an amount sufficient to completely indemnify Purchaser against such lien or claim. If any lien or claim should remain unsatisfied after all payments are made to Seller, Seller will refund to Purchaser all monies that Purchaser may be compelled to pay in discharge of such lien or claim together with all costs and reasonable attorney’s fees.
Any assignment or sublet of this purchase order or of any right or interest herein, or of any money due or to become due hereunder, without the written consent of Purchaser shall be void. The Purchaser reserves the right to make direct settlements and adjustments in price or otherwise with Seller in accordance with this purchase order notwithstanding any assignment of claims for monies due or to become due hereunder, without notice to any assignee. Should Purchaser provide its written consent to Seller to assign any monies due or to become due hereunder, payment to any assignee shall be subject to set off or recoupment for any present or future claim or claims which Purchaser may have against Seller, except to the extent that any such claims are expressly waived in writing by Purchaser.
Seller shall not procure, nor contract for the procurement of, any material covered by this purchase order in completed or substantially completed form without first securing the written approval of Purchaser. In the event that Seller so subcontracts without first securing the written approval of Purchaser, Purchaser may cancel that portion of this purchase order relating to such materials without any liability to Seller
INCONSISTENCIES OR CONTRADICTIONS:
The true construction, interpretation and meaning of specifications, drawings and data shall be decided only by Purchaser. In case of conflict or inconsistency among the purchase order and any other Contract Documents, or in case of discrepancies, omissions or errors, Seller shall submit the matter immediately to Purchaser for determination.
a. Unless otherwise provided herein, all federal, state, and local sales, use, excise or similar taxes shall be for Seller’s account. Purchaser shall, upon Seller’s request, furnish any exemption certificates available to Purchaser. Any such taxes agreed to be for Purchaser’s account shall be entered on invoice as a separate item.
b. Seller hereby accepts exclusive liability for the payment of all contributions or taxes, for unemployment insurance, social security, old age pensions or annuities, and any other taxes, assessments or charges in connection herewith whether measured by wages, salaries, or other remuneration of seller’s employees, agents, independent contractors, or others, as far as any of the same may affect the materials to be furnished hereunder, and Seller further agrees to indemnify Purchaser against the assessment of any such taxes or charges.
Seller warrants that the materials covered by this purchase order shall be produced in compliance with the requirements of the Fair Labor Standards Act of 1938 (Federal Wage and Hour Law), as amended, including Sections 6, 7, and 12, and regulations and orders issued under Section 14 thereof. Seller must certify such compliance on each invoice submitted in connection with this purchase order.
Seller, in performing the work required hereunder, shall comply with the provisions of Executive Order 11246, as amended by Executive Order 11375 and with Executive Orders 11141, 11458, 11626, 11701, and 11758, as amended, and related rules and regulations, as applicable, and with all other applicable laws, orders, rules and regulations of the location in which the work is to be performed regarding non-discrimination in employment which are not in conflict with the above referenced federal laws, orders, rules and regulations. Seller shall complete Purchaser’s standard form certificate of compliance in the regard as required.
Seller warrants that the materials sold hereunder shall comply in all respects with the Occupational Safety and Health Act of 1970 (P.L. 91-596, as amended) and all applicable state and local safety laws, and all applicable regulations, rulings, orders and standards promulgated thereunder. Seller further warrants that the materials will comply with all generally recognized industrial safety standards. Seller agrees to correct any non-conformance at its expense.
d. Hazardous and Toxic Materials:
Seller warrants that each chemical substance constituting, or contained in, the materials is listed in the Environmental Protection Agency’s Toxic Substances Control Act (P.L. 94-469, as amended) Master Inventory File of Chemical Substances. If the materials, or any part thereof, have been classed as hazardous materials by the Department of Transportation, Seller warrants that the product shall be packaged, marked, labeled and shipped in full compliance with the Hazardous Materials Transportation Act (P.L. 93-633, as amended) and regulations promulgated thereunder. Seller further warrants that the materials comply with the Federal Hazardous Substances Act (P.L. 92-516, as amended) and regulations promulgated thereunder. Seller agrees to correct any non-conformance at its expense.
e. With respect to subparagraphs (a) through (d) hereof, Seller agrees to hold Purchaser and Owner harmless from any and all liabilities, claims, civil fines, penalties and awards, damages, losses, settlements and expenses, including attorney’s fees, which may arise out of Seller’s actions or omissions which do not meet these requirements.
f. Applicable Law and Forum:
This contract shall be governed by the law of, and enforced in the courts of the Commonwealth of Pennsylvania, which courts shall have exclusive jurisdiction. The parties waive the right to trial by jury. The parties waive application and jurisdiction of the United Nations Convention for the International Sale of Goods.
To the extent permitted by law, Seller shall indemnify, defend, and save Purchaser and Owner, or any of them, harmless from any and all claims, liabilities, damages, losses, settlements and expenses, including attorney’s fees, for injuries to, or death of, any and all persons, and for loss of or damage to property in connection with the materials furnished hereunder, whether such damages are due or claimed to be due to any negligence of Seller, Owner, or Purchaser or their employees or agents, or any other person. Seller hereby covenants that he has received specific consideration for assuming this obligation by the award of this purchase order and by agreement to the Seller’s price which was submitted in cognition of this and all other obligations assumed by Seller hereunder. The provisions of this paragraph shall survive completion, termination, or cancellation of this purchase order. In any case, where it is necessary for employees or representatives of Seller to go upon the premises of Purchase, Contractor or Owner, relevant additional and supplementary terms and conditions contained herein shall apply.
If the price on the face of this purchase order includes the cost of special tooling (e.g. special dies, jigs, tools, patterns, etc.) to be used in the manufacture of any materials ordered hereby, such special tooling shall be and become the property of Purchaser or its customer. Any material (including, but not limited to, tooling such as dies, jigs, tools, patterns, etc., and specifications or drawings, and other material or products for decorating, finishing or processing, etc.) furnished by Purchaser to Seller for use in connection with the manufacture of any item ordered hereby shall be and remain the property of Purchaser. Such special tooling and such materials shall be kept in good condition by Seller without expense to Purchaser. All risk of loss to such special tooling and such materials shall be and remain with Seller during the time they are in Seller’s possession. The actual cost of changes to such special tooling or material resulting from Purchaser’s change of design or specification shall be paid for by Purchaser. No such special tooling and no such material belonging to Purchaser or its customer shall be used in the production, manufacture, or design of any items other than those called for by this purchase order or other purchase order(s) of Purchaser. When such special tooling or such material is no longer required for use in connection with this purchase order or such other purchase order(s) the same shall be disposed of as Purchaser shall direct.
INSPECTION, TESTING, AND WAIVER:
a. All inspections and tests shall be made as required herein, and copies of all test reports, test data, and other documents, in the number specified, shall be forwarded by Seller to Purchaser at the mailing address set forth on face hereof. Purchaser shall be entitled but shall not be required, to perform inspections at Seller’s or its vendors’ and subcontractors’ premises of all items purchased hereunder at any stage in the manufacturing process, and Purchaser shall be entitled to reject any partially completed work which fails to conform to the requirements of this purchase order. Seller shall advise Purchaser ten (10) days in advance when the materials are ready for inspection. No such inspection or failure to inspect shall relieve Seller of any responsibility or liability with respect to such materials nor be interpreted in any way to imply acceptance thereof by Purchaser.
b. Neither payment, failure by Purchaser to insist on strict performance, acceptance, nor waiver, by Purchaser of any breach hereof, shall constitute a waiver of any other breach of this purchase order. In any legal action between Purchaser and Seller arising out of this purchase order, or its breach, Purchaser shall be entitled to recover reasonable attorney’s fees and all legal costs and expenses, together with interest and all losses or damages which Purchaser may suffer, including any damages, liquidated or otherwise, or settlements required to be paid by Purchaser to Owner or any Contractor because of the failure of Seller to provide any item in full accordance with this purchase order.
Unless otherwise specifically provided herein, no charge shall be made for preparation for shipment or for costs of shipment. All materials covered by this purchase order shall be packed in accordance with good commercial practice to insure against damage from weather, storage, handling and transportation.
WORK ON PURCHASER’S OR THIRD PARTY’S PREMISES:
If in the performance of this purchase order, Seller or any of its employees, agents or subcontractors enters upon premises occupied by Purchaser or by a third party, Seller shall take all precautions necessary to prevent injury to persons or property. Seller shall indemnify Purchaser, its agents and employees and such third party against any and all liabilities, claims, losses, damages, settlements, civil fines, penalties, and awards, and expenses, including attorney’s fees, on account of any injury to persons (including death) or damage to property which may result in any way from any act or omission of Seller, or of its employees, agents, or subcontractors.
b. Insurance Requirements:
Seller shall maintain at its own expense the following insurance with limits satisfactory to Purchaser, workers compensation and employer’s liability insurance (including Longshoremen’s and Harbor Worker’s coverage, if applicable), public liability insurance (bodily injury and property damage) including products and completed operations, contractual liability insurance covering the indemnification provisions set forth in this purchase order, and motor vehicle liability insurance (bodily injury and property damage) including owned, non-owned and hired vehicle coverage. Before commencing work on the premises of Purchaser or Owner, Seller shall furnish Purchaser certificates evidencing the foregoing coverage at limits and with deductibles, if any, satisfactory to Purchaser. Such certificates shall provide for thirty (30) days written notice to Purchaser prior to change, cancellation or termination of the insurance and shall be addressed to Purchaser at the mailing address set forth on face hereof.
Seller expressly warrants that all materials will be new, in accordance with contract documents, including, but not limited to, Purchaser’s design specifications, drawings, samples or other descriptions furnished or adopted by Purchaser, merchantable and fit and sufficient for the purpose intended, and free from defects in material, workmanship and design. If required by Purchaser, Seller shall furnish satisfactory evidence as to the kind and quality of all materials furnished hereunder. This warranty shall run to Purchaser and its customers and all users of such materials and shall remain in effect as to each item for a period of eighteen (18) months after the item is applied to the ultimate use for which it was intended, or for such longer periods as may be specified by Contract Documents. The foregoing warranty shall be in addition to all rights which Purchaser, its customers and users shall be entitled to at law.
REJECTED GOODS AND DEFECTIVE MATERIAL:
All materials found nonconforming or defective as to design, material, workmanship, manufacture or performance will be repaired or replaced by Seller without expense to Purchaser or, at option of Purchaser, Seller will refund the price on all such nonconforming or defective materials. In the event Seller fails to so repair or replace the defective or nonconforming materials within ten (10) days after notice, Purchaser may repair such materials and charge the cost thereof to Seller. Purchaser will not be required to return defective or nonconforming materials prior to replacement, and Seller agrees to accept Purchaser’s report of defect or nonconformity with respect to such materials, but Seller may have an opportunity to verify the defect or nonconformity. If rejected materials are returned to Seller, Seller shall pay transportation charges both ways on the rejected materials.
a. Delivery shall be made when and as directed by Purchaser, in strict accordance with any schedule or other conditions set forth in this purchase order. Delivery of specified materials at the scheduled times, including interim deliveries of any part of the total materials, is of the essence of this purchase order, and Purchaser reserves the right to cancel without cancellation charge and without waiving any other rights under this purchase order, or at law, all or any part of this purchase order, if any delivery is not made within the specified time. If, for any reason unforeseeable at the time of signing of this purchase order, it is later learned by Seller that the materials cannot be delivered within the time specified, Seller must immediately notify Purchaser in writing. Upon such notice, Purchaser may direct that work on the materials be accelerated by means of overtime and additional crews or shifts, and Seller shall promptly provide a plan including recommendations for the most effective and economical acceleration. Costs for accelerated work are included in the purchase order price and Seller expressly waives any other compensation therefore unless otherwise agreed to in writing in advance of performance. Failure to make timely delivery or to comply with the notice requirement may result in the incurring of substantial additional costs or damages by Purchaser for which Seller shall be liable.
If freight is allowed, or purchase made at delivered price, freight charges, must be PREPAID. Carrier claims resulting from in transit damage will be the sole responsibility of Seller for purchases made at delivered price. All materials shall be forwarded in accordance with Purchaser’s instructions, or in the absence of such instructions by the route involving the lowest transportation rate. Excess transportation cost will be borne by Seller. All invoices with transportation charges must be supported by a receipted freight bill.
It is recognized that if Seller is adjudged a bankrupt, or makes a general assignment for the benefit of creditors, or if a receiver is appointed for the benefit of its creditors, or if a receiver is appointed on account of its insolvency, such should impair or frustrate Seller’s performance of this purchase order. Accordingly, it is agreed that upon the occurrence of any such event, Purchaser shall be entitled to request of Seller or its successor in interest adequate assurance of future performance in accordance with the terms and conditions hereof. Failure to comply with such request within ten (10) days of delivery of the request shall entitle Purchaser to cancel this purchase order without any obligation or liability whatsoever, other than the obligation to pay for delivered materials.
Purchaser may at its election, by delivery to Seller or written notice of termination, cancel this purchase order or any part hereof without any obligation or liability whatsoever, if Seller (1) fails to deliver the materials or perform the work or services in accordance with the delivery or any other schedule specified in this purchase order, or (2) fails to comply with any of the other provisions of the Contract Documents. In the event of any such failure by Seller, and whether or not this purchase order shall be canceled, Purchaser may purchase similar materials elsewhere or secure the manufacture and delivery thereof or the performance of services by contract or otherwise and Seller shall be liable to Purchaser for all costs and damages suffered or incurred by Purchaser arising or resulting from such failure or failures by Seller. If it is determined that Seller was not in default, or that the default was excusable, the termination will be deemed to have been ordered pursuant to the termination for convenience clause set forth herein.
Purchaser reserves the right to cancel or suspend this purchase order in whole or part by written notice, for his convenience. In the event of such termination or Suspension, Seller may claim reasonable costs incurred plus a reasonable allowance for profit and overhead only on work completed as of the effective date of termination or suspension, to be determined in accordance with (1) and (2) below. If it appears that Seller would have sustained a loss on the entire purchase order had it been completed, no allowance for profit and overhead shall be allowed.
1. If this purchase order covers materials manufactured or fabricated to Purchaser’s specifications or specifications especially prepared by Seller for Purchaser, the following provisions shall apply:
(a) Immediately upon receipt of such notice of termination or suspension, or upon such other date as may be specified in said notice, Seller shall stop all work in connection with this purchase order, except as otherwise directed by Purchaser.
(b) Purchaser shall pay and Seller shall accept as full compensation, Seller’s reasonable costs to the date work is stopped, including Seller’s reasonable expense in connection with termination or suspension of any subcontracts, all as approved by Purchaser, plus 6% of such costs as full overhead and profit, provided, however, that in no event shall the total amount to be paid to Seller upon such termination or suspension plus payments previously made exceed that proportion of the aggregate total purchase price specified herein that the work actually completed hereunder to the date work is stopped bears to the entire work to be performed hereunder.
(c) All completed materials shall become and remain the property of Purchaser and Seller shall safely hold the same for a reasonable time subject to receipt of Purchaser’s written shipping or other disposition instructions.
(d) In the case of suspension of this purchase order, Seller shall resume production and deliveries in accordance with Purchaser’s written instructions. Upon completion of the resumed work, Seller shall receive the total purchase price in the manner and amount as specified herein, less any payments previously made under this purchase order. Purchaser reserves the right to cancel this purchase order after any period of suspension.
2. If the materials covered by this purchase order are standard stock merchandise, Purchaser shall have no obligation for cancellation charges or otherwise hereunder, except to make payment subject to other applicable terms hereof, for the materials actually shipped and in transit prior to such termination or suspension, and to make payment for any materials as to which this order is not terminated or suspended which are shipped subsequent to such termination or suspension. Upon completion of this purchase order after resumption, Seller shall receive the total purchase price in the manner and amount as specified herein, less any payments previously made under this purchase order. Purchaser reserves the right to cancel this purchase order after any period suspension.
d. Upon termination under any of the foregoing circumstances, Seller will be deemed to have offered to Purchaser an assignment of all of its subcontracts and purchase orders related to this purchase order.
TITLE AND RISK OF LOSS:
Title to the materials shall pass to Purchaser when the materials are identified as to the contract. However, risk of loss shall pass to Purchaser only upon delivery in accordance with the schedule and conditions set forth in this purchase order.
The rights and remedies of Purchaser hereunder shall not be exclusive but shall be cumulative and additional to any other rights and remedies provided by any and all other clauses and paragraphs of this purchase order and to all other rights and remedies provided by any and all other clauses and paragraphs of this purchase order and to all other rights and remedies in law or equity including, but not limited to, the right of Purchaser to set off amounts payable to Seller hereunder against any amounts otherwise owed to Purchaser by Seller under this or any other contract. No waiver of a breach of any provision of this purchase order shall constitute a waiver of any other breach or a waiver of such provisions