Komatsu America Corp.
Standard Terms of Purchase
1. Order and Acceptance
Komatsu America Corp. (“KAC”) shall place a Purchase Order with Seller by forwarding pertinent purchase order data by way of mail, courier, fax, e-mail, EDI, or via the relevant KAC website.
Prompt acceptance of this order by Seller signing and returning the acknowledgment copy hereof is requested, but in any event, commencement of work on such Goods or shipment of such Goods, whichever occurs first, shall be deemed an effective mode of acceptance of KAC’s offer to purchase Goods and all of its terms, including the present Standard Terms of Purchase.
The Purchase Order, including these Standard Terms of Purchase, constitutes the sole and entire agreement between the parties. No other terms or conditions are binding upon KAC unless accepted by it in writing signed by an authorized representative of KAC. Any references in this order to Seller’s proposal or quotation are made only for the purpose of specifying the nature and description of the goods, work and/or services ordered, and then only to the extent that such items are consistent with the other terms of this Purchase Order.
This order, and the language herein shall be construed and enforced under the Uniform Commercial Code as in effect in the State of Illinois on the date of the relevant Purchase Order, except for any conflict of laws provisions contained in either the Uniform Commercial Code or the Convention on the International Sale of Goods.
KAC shall at all times be entitled to set off any amount owed by KAC in connection with a particular order against any amount owing at any time from Seller to KAC or any of its affiliated companies.
- Performance by Seller
Time is of the essence for this order and it is essential it be performed and filled on the specified date(s) and that the work progress in a timely fashion.
Seller may not assign this Purchase Order nor assign any rights or claims under this Purchase Order, without the prior written consent of KAC. Any attempted delegation or assignment, by operation of law or otherwise, without the prior written consent of KAC shall be void.
- Seller’s Warranty
Seller warrants that the goods, work or services delivered by it to KAC shall be free from defects in design, material, workmanship, and title; shall conform in all respects to the terms of this Purchase Order; shall be fit for the purposes made known by KAC or as reasonably inferred; shall be merchantable; and in addition to any warranty or service guarantee offered by Seller or implied or provided by law, shall be at least equal to nationally recognized standards of the best quality if no quality is specified.
The “Warranty Term” shall be valid for a period extending to one (1) year subsequent to the date of delivery to the end user of the KAC product. Should the Seller breach any part of this purchase contract, including but not limited to the breach of any express or implied warranties, KAC shall be entitled to recover all actual, incidental, and consequential damages arising from such breach.
The Seller agrees to give KAC thirty (30) days after receipt of goods to inspect and accept goods under a particular Purchase Order. The Seller further agrees that this does not preclude KAC from revoking the acceptance after the expiration of this thirty (30) day period for defects arising subsequent to that time, including those defects that may arise during production of KAC’s product and/or during the Warranty Term. Seller’s right to cure any defects or replace defective goods delivered is limited to ten (10) days after the Seller is notified of such defects. Any extension of that time must be agreed to in writing by KAC. It is agreed the risk of loss will remain with the Seller for any properly rejected goods until accepted by KAC after cure or replacement.
Seller warrants that all goods manufactured, sold, or provided hereunder do not contain any asbestos, polychlorinated biphenyls (PCBs), lead, lead paint, mercury, or other Hazardous Materials of any type, unless required by KAC specification, or disclosed in advance to KAC in writing. “Hazardous Material” is defined as any hazardous or toxic substance, material, or waste that because of its concentration, or physical or chemical characteristics, poses a significant present or potential hazard to human health and safety, or to the environment if released into the workplace or the environment. Hazardous materials include but are not limited to, those listed in the United States Department of Transportation Hazardous Materials Table (49 C.F.R. 172.010) or by the United States Environmental Protection Agency as hazardous substances (40 C.F.R. Part 302 and amendments thereto) or comparable Canadian laws, rules or regulations, petroleum products and their derivatives, and such other substances, materials, and wastes as become regulated or subject to cleanup authority of any environmental law or any country or which form the basis for liability under any environmental law of any country.
4. Compliance with Laws
Seller agrees that it shall comply with all applicable Federal, state, provincial and local laws of the U.S. or Canada, including without limitation the Fair Labor Standards Act of 1938 (U.S.), and Title VII (U.S.). If this Purchase Order is subject to Executive Orders 11246 (U.S.), Seller certifies that it a) is in compliance with Sec. 202 thereof and the Rules and Regulations issued thereunder, b) does not and will not provide or maintain any of its establishments, or permit its employees to perform their services at any location under its control where there are maintained, segregated facilities, and c) agrees that a breach of this warranty violates the Equal Employment clause of Executive order 11246 (U.S.). “Segregated Facilities,” means facilities that are, in fact, segregated on a basis of race, sex, age, color, creed, religion or national origin, because of habit, local custom or otherwise. Seller certifies that it is in compliance with 38 U.S.C. 2012 and 41 C.F.R. 60-250 (U.S.) concerning Viet Nam era and disabled veterans. Seller agrees to a) obtain an identical certification from proposed subcontractors prior to the award of subcontracts exceeding $10,000 which are not exempt from the provisions of the Equal Opportunity clause, and b) maintain such certifications in its files. The penalty for making a false representation is prescribed under 18 U.S.C. 1001. Seller agrees to comply with all applicable Canadian Federal and provincial laws, rules, or regulations substantially comparable to the foregoing.
5. Price
The Price stated on the Purchase Order will include all charges for packaging for shipment and loading. Such Price will exclude all sales, goods and services, use, and excise taxes and duties which either party is required to pay in connection with the sale of the Goods, work or services covered by the Purchase Order. Taxes, freight and duties will be shown separately on invoices.
- Certain Charges or Expenses Negated
Unless otherwise specifically provided herein, a) no charges for transportation, packing, crating, cartage, storage or containers shall be allowed, b) Seller shall pay and the price includes all applicable sales and similar type taxes which are not imposed by law on KAC, and c) any information or data disclosed or furnished to KAC by Seller hereunder shall be deemed sold as part of the price hereof, non-proprietary and free of all restrictions whatsoever.
- Changes and Termination
KAC may make changes in the specifications or drawings or increase or decrease the quantities originally ordered by submitting a written change order. If any such change affects the purchase price or the time of performance hereunder, an equitable adjustment shall be made.
KAC may at any time terminate this order, in whole or in part, for convenience by written notice, whereupon Seller shall terminate work pursuant to the terms of such notice. Seller shall promptly advise KAC of the quantities of applicable work and material on hand or purchased prior to termination and the most favorable disposition that Seller can make thereof. Seller shall comply with KAC’s instructions regarding disposition of such work and material. All claims by Seller based on such termination must be asserted in writing and in full, within ninety (90) days from the date of notification of the termination, or shall be waived. KAC shall pay Seller the Purchase Order price of finished work and the cost to Seller (excluding profit or losses) of work in process and raw materials; less however, a) the agreed value of any items used or sold by Seller with KAC’s consent, and b) the reasonable value or cost (whichever is higher) of any defective, damaged or destroyed work or material and any items sold or used by Seller without KAC’s consent. KAC will make no payments for finished work, work in process or raw material fabricated or procured by Seller unnecessarily in advance or in excess of KAC’s delivery requirements. The payment provided under this clause shall constitute KAC’s only liability in the event this order is terminated as provided herein.
To the extent this order covers items normally carried in inventory by Seller (as distinguished from items specially made to KAC’s specifications), KAC shall have no liability for such items subject to this order which are not shipped prior to termination of this order.
KAC shall not be liable for failure to take delivery of material or work or render any other performance in the event of fire, accidents, labor difficulties, governmental actions, third party failures or any other conditions beyond KAC’s reasonable control render it commercially impractical for KAC to do so.
If Seller defaults in any manner under these terms or becomes insolvent or if a petition in bankruptcy or insolvency is filed by or against Seller under any state, provincial or federal law, KAC may terminate this order in whole or in part immediately upon written notice to Seller.
- KAC’s Property
KAC retains title to all drawings, designs, specifications and technical data furnished to Seller for use with this order and the same shall be treated as KAC’s confidential information, shall be used by Seller only to complete this order and shall be returned upon request by KAC or termination of the relationship between the Parties, along with all copies or reproductions thereof, provided copies or reproductions shall be made only with KAC’s written consent.
All materials, including drawings, designs, specifications, technical data, tools, special dies and patterns furnished or specifically paid for by KAC, shall be the property of KAC, shall be returned to KAC when no longer required hereunder, shall be used only to complete this order and shall be segregated and clearly identified as property of KAC. Seller assumes all risk and liability for loss or damage thereto, except for normal wear, and agrees to permit inspection and supply detailed statements of inventory upon request of KAC.
9. Government Contracts
If this order is for material or work of Seller to be supplied by Buyer to a third party under a government contract or subcontract or a contract which is being financed by a government, all contract provisions applicable hereto and required by law, order, regulation or such government contract or subcontract, are hereby incorporated herein by reference as fully as if set forth herein in full, including without limitation, Federal Acquisition Regulations (FAR) 52.219-8 (Utilization of Small, Small Disadvantaged and Woman-owned Small Business Concerns), the other requirements of FAR 52.219-9 (d) if this order is in excess of $500,000, and 52.219-9(e)(4), and any required right of access or audit of the Seller’s records by the U.S. Government with respect to any sales financed by the Defense Security Cooperation Agency or similar agency. Where necessary to make the context of such provisions or clauses applicable to this order, the terms “Contractor”, “Contract”, and “Government” or “Contracting Officer” (or terms of similar import) shall mean respectively Seller, this order, and KAC. KAC is authorized to file electronically or by any other means or documents that it deems necessary in order to protect its interest in such property, including without limitation, UCC-1s (U.S.).
10. Indemnification
Seller shall indemnify, defend, and hold harmless KAC from and against all claims and actions, and all expenses (including reasonable attorney’s fees) incurred in connection with such claims or actions, based upon or arising out of damage to property or injuries to persons, failure to perform the obligations contained herein, breach of these terms, or other tortious acts caused or contributed to by Seller or anyone acting under its direction or control or on its behalf in the course of its performance under this Purchase Order, provided the Seller’s aforesaid indemnity and hold harmless agreement shall not be applicable to any liability based upon the sole negligence of KAC.
11. Language
The parties hereto have expressly requested that this Agreement and any documents related thereto be drafted in the English language. Les parties aux présentes ont expressément requis que la présente convention et tout document y afférent soit rédigé en langue anglaise.
12. Applicability
These Komatsu America Corp. Standard Terms of Purchase apply only in the absence of a standing supply agreement between KAC and Seller. In cases where a supply agreement exists, the terms and conditions stated in the supply agreement will govern. For issues unaddressed by standing supply agreements, the relevant section(s) of the Komatsu America Corp. Standard Terms of Purchase will apply, unless the Komatsu America Corp. Standard Terms of Purchase are categorically denied in the terms of the standing supply agreement.
Komatsu America Corp. Standard Terms of Purchase - English Rev 01 Page 1 of 3
Revised 2003-05-08