Vendor policy (US)

Purchase order

General terms & conditions (United States of America) (See general terms & condition for Canada)

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  1. Definitions
    1. Buyer” means Kruger Inc. or any of its affiliated corporations purchasing Products from the Seller. “Confidential Information” means all information obtained relating to the Order, to the parties or their businesses and operations in any format or media (whether verbal or written) which, in the normal course of business, would be considered to be of a confidential nature. “Delivery Address” means the address set forth in the Order for the delivery of Products. “General Terms” means the general terms and conditions governing this Order, and includes the Master Supply Agreement and the Entitled Buyer Purchase Agreement, if those agreements are applicable. “Order” means the purchase order issued by Buyer to Seller to which these General Terms and Specifications apply. “Person” means an individual, partnership, association, agency, body corporate or personal representative. “Price” means the price for the Products set out in the Order. “Products” means any services, goods or equipments to be supplied by Seller to Buyer and Products shall include, without limitation, all accessories, such as plans, software, manuals, deliverables and other property relating thereto. Where the Order includes services to be provided or performed by Seller, the term "Products” will be interpreted to include the delivery, provision, performance and warranty of the services by the Seller in the manner and to the extent set out in the Order. “Seller” means the Person as set out in this order selling the Products. “Specifications” includes, without limitation, any specific conditions, instructions, descriptions, plans, drawings, data, intellectual property rights, or other information relating to the Products.
  2. Basis of Purchase
    1. These General Terms will supersede all terms and conditions in any acceptance of the Seller and all other inconsistent terms of the Seller with respect to this Order. However, if this Order forms part of a Master Supply Agreement or an Entitled Buyer Purchase Agreement between the parties, the General Terms of those agreements will govern this Order, in ascending authority, as follows: (i) Master Supply Agreement and (ii) Entitled Buyer Purchase Agreement.
    2. Any Specifications referred to in this Order or otherwise provided by Buyer to Seller related to Order are deemed to be incorporated by reference into this Order as if fully recited herein. If documents, performance specifications, technical product descriptions or other similar descriptive materials submitted by Seller in connection with the Order are incorporated by reference, these shall not be deemed to supersede any contrary requirements of Buyer, but to the extent that such materials are not inconsistent with Buyer's requirements, they shall constitute a part of the basis of this Order.
    3. This Order shall be deemed to have been accepted by the Seller upon receipt by the Buyer of any writing, including a writing transmitted by fax or other means of electronic transmission, indicating acceptance, or by any of the following: (i) on commencement of the delivery of the Products, or (ii) after seven (7) calendar days from delivery of this Order to Seller without the Seller refusing this Order in writing. If this Order is construed as an offer, this offer expressly limits acceptance to the terms of this offer and notice of objection to any different or additional terms in any response to this offer is hereby given. If this Order is construed as an acceptance of an offer, this acceptance is expressly conditioned upon the offeror's assent to any different or additional terms contained or referenced in this Order. If this Order is construed as a confirmation of an existing agreement, the parties agree that this confirmation states the exclusive terms of any agreement between the parties, save for the General Terms included in the Master Supply Agreement and the Entitled Buyer Purchase Agreement, if those agreements are applicable.
    4. No amendment of this Order or these General Terms will be binding unless agreed upon in writing between authorised representatives of Buyer and Seller.
  3. Delivery
    1. The Seller will arrange and be responsible for the delivery of the Products to or at the Delivery Address of the Buyer during the Buyer’s usual business hours. TIMING OF DELIVERY AND/OR PERFORMANCE OF THIS ORDER IS OF THE ESSENCE.
    2. Deliveries must respect the Specifications, quantities and delays specified in this Order. However, Buyer reserves the right at all times, upon written notice to Seller, to modify the delivery dates, to temporarily suspend shipments Products or to cancel this Order in whole or in part without indemnity. If delivery dates can not be
      met, Seller shall immediately inform Buyer in writing.
    3. Products are to be shipped delivered duty paid, as governed by INCOTERMS 2000, unless the Buyer otherwise specifies in this Order. Seller is to deliver the Products to the Buyer, cleared for import, and not unloaded from any arriving means of transport at the Buyer’s place of business. Seller bears all the costs and risks involved in bringing the Products thereto including, where applicable, any duty, which includes the responsibility for and the risk of the carrying out of customs formalities and the payment of formalities, customs duties, taxes and other charges, for import in the country of destination.
    4. Seller will properly pack the Products to reach their destination in an undamaged condition. Seller shall pack, label, and prepare the Products for shipment in a manner so as to prevent its damage, contamination, and deterioration and so as to comply with applicable laws and regulations. Seller will inspect the equipment of the carrier transporting the Products for safety hazards, and carrier’s compliance with applicable laws and regulations.
    5. Unshipped portions of this Order are subject to cancellation at the sole discretion of the Buyer.
    6. Buyer's Order number will be prominently displayed on each delivery or consignment of Products and all related correspondence and invoices for the Products.
    7. Buyer is not obliged to return to Seller any packaging or packing materials accompanying accepted or returned Products. Deliveries shall be made without charges for boxing, crating, carting, or storage unless otherwise specifically designated in the Order.
    8. Buyer may reject any delivered Products which do not conform to the Specifications or these General Conditions. Despite any acknowledgement of receipt, Buyer reserves the right to reject any Products or to revoke any previous acceptance and to cancel all or any part of the Order if Seller fails to deliver all or any part of the Products in accordance with the General Terms and conditions of this Order. Acceptance of any part of the Order shall not bind the Buyer to accept any future delivery, nor deprive it of the right to return Products already accepted. Buyer will not be deemed to have accepted any Products until Buyer has had reasonable time in which to inspect them after delivery.
  4. Risk and Title
    1. Risk of damage to or loss of the Products will pass to Buyer on delivery to Buyer in accordance with this Order and these General Terms. All Products shall be delivered to the Delivery Address designated in the Order. Risk of loss shall not pass to Buyer until Products have actually been received and accepted by the Buyer at the destination specified in the Order. Seller assumes full responsibility for packing, crating, marking, transportation and liability for loss and/or damage even if Buyer has agreed to pay freight, express or other transportation charges.
    2. Unless otherwise explicitly agreed, title passes to the Buyer at the time and place at which the Seller completes performance with reference to the physical delivery of the Products and Buyer has accepted delivery of the Products.
  5. Compliance
    1. Seller agrees to comply with all applicable laws and regulations. Seller will perform in accord with all industry standards concerning the design, manufacture, sale, packaging, packing, labelling and delivery of the Products.
    2. The Products shall comply with any Specifications set forth in the Order, all applicable laws and regulations, and industry standards regarding the design, manufacture, sale, packaging, packing, labelling and delivery of the Products.
    3. Seller will mark the Products in accordance with the instructions of the Buyer, carriers and/or other applicable authority. Only reputable and regulated carriers will be used. Seller will inspect the equipment of the carrier transporting the Products for safety hazards, and carrier’s compliance with applicable laws and regulations.
    4. All specifications, drawings, samples, designs, and other data or information furnished by Buyer to Seller hereunder or in contemplation hereof, together with the copyright and any other intellectual property rights, shall remain Buyer’s exclusive property. Seller assigns to Buyer all rights to such copyright and other intellectual property rights including, without limitation, any improvement thereto made by the Seller. All originals and copies of documents shall be returned to Buyer upon request. Unless Information was previously known to Seller free of any obligation to keep it confidential, or has been or is subsequently made public by Buyer, it shall be kept confidential by Seller and used only with respect to this Order.
  6. Price of the Products
    1. The Price of the Products will be as stated in the Order and, unless, otherwise stated, the Price shall include all charges for packaging, packing, shipping, carriage, insurance and delivery of the Products to the Buyer’s Delivery Address and any duties, imposts or levies other than sales and value added tax. If the Price is not stipulated herein, this Order is not to be filled at any Price that is higher than the last Price previously quoted to Buyer by Seller.
    2. Buyer is entitled to any discount, allowance, or rebate customarily granted by Seller for prompt payment, bulk purchase, or volume of purchase.
    3. Seller must provide Buyer with all benefits related to the Price reductions offered or in effect at the time of Product delivery. Any applicable payment discounts and allowance period will not begin until Buyer has received a proper invoice from Seller.
  7. Terms of Payment
    1. Each invoice will quote the Order number of the Buyer.
    2. Unless otherwise stated in the Order, and at Buyer's sole discretion, the Price shall be payable within 60 days after the later of (i) delivery and acceptance of Products or other performance conforming with the terms of this Order, or (ii) after the end of the month of receipt by the Buyer of a proper invoice.
    3. Buyer shall have the right to set-off against the Price any amount owing at any time from the Seller to the Buyer against any amount payable at any time by the Buyer whether or not in connection with this Order.
    4. Except where otherwise expressly provided, all amounts owing by the parties pursuant to this Order are stated in the Order, and are payable in American currency.
  8. Warranties and Liability
    1. Seller expressly warrants to Buyer that all (i) Products delivered under this Order to be free from defects in material and workmanship and to be of the quality, size and dimensions ordered, (ii) be new and newly manufactured, (iii) work performed under this Order to be in conformity with all plans, specifications and other data incorporated as part of this Order, (iv) comply with all statutory and industry requirements and regulations relating to the sale of the Products, and (v) be performed by properly qualified and trained personnel, with due care and diligence and to such high standard of quality as it is reasonable for the Buyer to expect.

      Notwithstanding any limitation of warranty, Seller further represents and warrants that the supply, quality and fitness for the purpose of the Products will not be impaired, disrupted or interrupted in whole or in part by the occurrence of any leap year. These express warranties shall not be waived by reason of acceptance or payment by the Buyer. Except as stated in provision 3.3 herein, this Order incorporates by reference all terms of the Uniform Commercial Code as adopted in the States of California, Maine, New York, Tennessee, and the Commonwealth of Virginia (the "UCC") providing any protection to Buyer for Products, including but not limited to all warranty protection, express or implied, and all of Buyer's remedies under the UCC. All Products shall also be subject to any stricter warranties specified in the Order or in other materials incorporated by reference.
    2. In addition to other remedies provided by law, Buyer reserves the right to reject any Products or to revoke any previous acceptance and to cancel all or any part of the Order if Seller fails to deliver all or any part of the Products in accordance with the terms and conditions of this Order, the General Terms, or any Specifications. Acceptance of any part of the Order shall not bind the Buyer to accept any future shipments, nor deprive it of the right to return Products already accepted. At Buyer's option and sole discretion, Buyer may (a) require the Seller to repair, correct Product defect, or require the Seller to deliver conforming Products within seven (7) calendar days of demand; and/or (b) treat this Order as terminated upon Seller’s default and demand repayment of any Price that has been paid by Buyer to Seller.
    3. Seller will indemnify Buyer against all liability, loss, damages, cost and expenses, including legal costs, awarded against or incurred or paid by Buyer as a result of or in connection with (a) any warranty or representation given by Seller made herein; (b) any claim that the Products or their importation, use or resale infringe the patent, copyright, design, trade mark or other intellectual property rights of any other Person; (c) any fault, error or omission of Seller or its employees, advisor, representatives, agents or sub-contractors in supplying, installing or delivering the Products. From and after the date of this Order, the Seller agrees to indemnify, defend and hold harmless the Buyer from any and all claims and liabilities, regardless of by whom such claim or liability may be asserted, for personal injury, including death, or loss or damage to property, or otherwise, including indemnify Buyer against all liability, loss, damages, cost and expenses (including legal costs) awarded against or incurred or paid by Buyer as a result of or in connection with any warranty or representation given by Seller made herein, any claim that the Products or their importation, use or resale infringe the patent, copyright, design, trade mark or other intellectual property rights of another Person, and any fault, error or omission of Seller or its employees, advisor, representatives, agents or sub-contractors in supplying, installing or delivering the Products that may result directly or indirectly from the use, possession or ownership of the Products provided by Seller pursuant to or in connection with this Order.
    4. Seller's agrees to an obligation to defend the Buyer against all liability, loss, damages, cost and expenses. Regarding Seller's obligation to defend Buyer, the Buyer shall have the right to select the legal counsel whom Seller shall provide to defend any Buyer or its affiliates, subject to Seller's reasonable approval of the qualifications of such legal counsel and the reasonableness of counsel's hourly rates as compared to the rates of attorneys with similar experience and qualifications in the relevant area of legal expertise and in the jurisdiction where the claim will be adjudicated. If the Buyer elects, in its sole discretion, to retain separate legal counsel, in addition to or in lieu of the counsel to be provided by Seller, then all costs and expenses incurred by the Buyer for such separate counsel shall be borne by the Buyer and the Seller shall reasonably cooperate with the Buyer and its separate legal counsel in the investigation and defense of any such claim or action. Seller shall not settle or compromise any claim or action giving rise to claims in a manner that imposes any restrictions or obligations on Buyer without Buyer's prior written consent. If the Buyer elects to require that Seller defend a claim pursuant to this provision, and Seller fails or declines to assume the defense of such claim within thirty (30) days after notice thereof, the Buyer may assume the defense of such claim for the account and at the risk of Seller, and any liabilities related thereto shall be conclusively deemed a liability of Seller. The indemnification rights of the Buyer contained herein are in addition to all other rights which the Buyer may have at law or in equity or otherwise.
    5. In no event shall Buyer be liable to Seller or any third party for any incidental, indirect, special or consequential damages arising out of, or in connection with, this Order, whether or not Buyer was advised of the possibility of such damage.
    6. If Seller breaches this Order, the General Terms, or any Specifications, Buyer shall have all remedies available by law and at equity. For the purchase of Products, Seller's sole remedy in the event of breach of the Order by Buyer shall be the right to recover damages in the amount equal to the difference between market price at the time of breach and the purchase Price specified in the Order. No alternate method of measuring damages shall apply to this transaction. Seller shall have no right to resell Products for Buyer's account in the event of wrongful rejection, revocation of acceptance, failure to make payment or repudiation by Buyer and any resale so made shall be for the account of Seller.
  9. Insurance
    1. In connection with the Order, Seller, at its own cost and expense, shall obtain and maintain in force during the term of this Order, the following insurance coverage: A policy of workers' compensation insurance, in amounts required by law, covering all officers and employees of Seller who are in any way engaged in or connected with the Order and employer's liability insurance. Seller shall require its agents, sub-suppliers and subcontractors, who are in any way engaged in or connected with the Order to maintain the same insurance as required herein of Seller; a policy of commercial general liability insurance with broad form property damage endorsement, personal injury and products completed operations coverage, affording protection with respect to personal injury, death, or damage to property; a policy of comprehensive automobile liability insurance covering the operation of all motor vehicles used by Seller or its agents in connection with this Order, affording protection with respect to personal injury, death, or damage to property. If this Order contemplates professional services, a policy of professional liability insurance, including errors and omissions, is required. All of these insurance policies shall be issued by insurance companies with an AM Best rating of "A" or higher and a financial strength rating of VII or higher, or equivalent ratings provided by a disinterested, generally recognized rating agency. Upon request, Seller shall furnish to Buyer a current certificate of insurance for each of the policies required above. Insurance coverage(s) provided under this Order shall not limit or restrict in any way the liability of Seller arising under or in connection with this Order. Such insurance shall not be canceled or terminated without ten (10) days prior written notice to Buyer of any cancellation or termination.

      Provisions substantially similar to this provision shall be incorporated into each subcontract entered into by Seller.
  10. Confidentiality
    1. Seller will not disclose Confidential Information arising from this Order to any third party without the prior written consent of the Buyer. All plans, drawings, specifications involve valuable property rights of the Buyer and shall be held confidential. No unauthorized use or reproduction is permitted. The Seller shall keep the terms of and the making of this Order confidential. The Seller shall not publicize its involvement with the performance of this Order without obtaining prior written consent of the Buyer and upon completion of this Order, shall return to Buyer all material given the Seller hereunder upon request. Seller may disclose information which (i) was properly in its possession prior to receiving it from Buyer; or (ii) is or subsequently comes into the public domain other than by breach of this Order; or (iii) was independently developed by the Seller; or (iv) was received from a third party who was entitled to divulge it.
    2. The obligations under this provision shall survive the cancellation, termination or completion of this Order and will remain in full force and effect for three (3) years thereafter.
  11. Term and Termination
    1. Buyer, in its sole discretion and without cause, may terminate this Order, in whole or in part, at any time without incurring liability to Seller for lost profits, or any other costs or damages, other than the proportionate value of the Price for Products delivered. Payment due shall be a percentage of the Price equal to the percentage of the Price specified for Products delivered. Seller's warranties, and Seller's liability for defective or
      non-conforming Products shall survive termination and remain in full force and effect.
    2. The Buyer may cancel this Order in whole or in part, with no liability to the Seller by notice to the Seller at any time, and all amounts paid shall be promptly refunded if: (a) The Seller defaults in performance, breaches its obligations, becomes insolvent through a court or bankruptcy proceeding, or makes an assignment for the benefit of creditors, or petitions or arranges for such under any bankruptcy or insolvency legislation, or otherwise goes into liquidation, other than for the purpose of a merger, amalgamation, or reorganization; or, (b) a creditor takes possession or a receiver is appointed to oversee any of property or assets of the Seller; or, (c) the Seller ceases, or threatens to cease, continuation of its business operations; or, (d) the Buyer is otherwise unable to secure adequate assurance of Seller's ability to perform in accord with this Order, the General Terms, or any Specifications.
    3. When the Order specifies the supply of Products is to be ongoing and Buyer becomes aware of a more financially favorable offer for the supply of some or all of the Products from a viable third party seller, and when said offer is in good faith, the Buyer may elect to notify the Seller of the third party offer via a "Notice of Competitive Offer" which will include sufficient details of the third party's offer for Seller to make a sound and reasonable financial evaluation of the Order. Within ten (10) days Upon receipt of Buyer's Notice of Competitive Offer, the Seller may by writing propose to amend the Order. If the Seller does not respond within (10) days after receiving Buyer's Notice of Competitive Offer or if Seller's proposed amendment to the Order is unacceptable, in whole or in part, to Buyer, then Buyer may terminate all or part of the Order or reduce the contracted volumes, without additional compensation to the Seller. In any event, Buyer may not so terminate under this provision earlier than the 20th day following Seller's receipt of Buyer's Notice of Competitive Offer.
    4. Buyer may terminate this Order, for any reason, including convenience in the event of "force majeure," upon ten (10) days' written notice to Seller. Upon said written notice, Buyer may, in whole or in part, suspend, cease or reduce the delivery of Products. Buyer may elect choose to have, partially or entirely, delivered Products that have been suspended, terminated or reduced pursuant to this provision or otherwise have said Products to be delivered, in whole or in part, by a third party common carrier. Upon receipt of the said written notice pursuant to this provision, and unless otherwise directed by Buyer, Seller shall cease to perform or provide Products under this Order on the date of termination specified in such notice. Any reduction, suspension or termination of Product delivery or termination of this Order under this provision or otherwise is without prejudice to any of Buyer's rights, including those Buyer may have against the Seller with respect to any act or omission by the Seller, whether the act or omission occurred prior to or after the date of Buyer's termination notice. Force Majeure is a circumstance beyond Buyer's or Seller's control which make performance commercially impractical and includes, but is not limited to, acts of God, fire, flood, acts of war, government action, accident, labor difficulties or shortage, inability to obtain materials, equipment or transportation.
    5. In the event of such termination, and provided that the Seller is not in default under this Order or in violation of any of its provisions, Buyer shall pay Seller for the portion of the Products satisfactorily performed, delivered and accepted by Buyer through the date of termination less appropriate offsets, including, if any, additional costs to be incurred by Buyer in completing delivery of the Products.
    6. Upon receipt of notice of cancellation hereunder, Seller shall, unless otherwise directed, immediately discontinue all work in process and immediately cancel all Orders or subcontracts given or made pursuant to this Order.
    7. Any obligations and duties which by their nature extend beyond the expiration or termination of this Order shall survive the expiration or termination of this Order.
  12. Miscellaneous
    1. Seller may not assign this Order or any of its rights or obligations, without the prior written consent of Buyer, which consent may not be unreasonably withheld. Any assignment or transfer without such written consent shall be null and void. The rights of any assignee shall be subject to all set-offs, counterclaims, and other comparable rights arising hereunderBuyer, without restriction, may assign this Order to one of its subsidiaries or affiliates upon written notification to the Seller. This Order shall inure to the benefit of, and be binding upon, the successors and assigns of Buyer without restriction. A waiver of any default hereunder or of any term or condition of this Order shall not be deemed to be a continuing waiver or a waiver of any other default or any other term or condition.
    2. This Order may not be varied, modified, altered, or amended except in writing, including an Order or a change order issued by Buyer. This Order, the General Terms, and any Specifications shall prevail notwithstanding any variance with the terms and conditions of any acknowledgment or other document submitted by Seller.
    3. All notices, consents, and other communications hereunder shall be in writing and shall be addressed to the Seller or Buyer at their respective principal place of business, and shall be considered given when (a) delivered personally, (b) sent by confirmed telex or facsimile, (c) sent by commercial overnight courier with written verification receipt, or (d) three (3) days after having been sent, postage prepaid, by first class or certified mail.
    4. This Order shall be construed in accordance with, and disputes shall be governed by the laws of the jurisdiction in which the principal place of business of the Buyer is located at the time the event giving rise to the cause of action occurs and any disputes between the parties that arise there from will be subject to the exclusive jurisdiction of the courts of that jurisdiction without regard to the conflicts of law provisions thereof. The applicability of the UN Convention on Contracts for the International Sale of goods is hereby expressly waived by the parties and it shall not apply to the terms and conditions of this Order.
    5. During and for a period of two years immediately after the termination or expiration of this Order, Seller agrees not to unlawfully interfere with the business of Buyer in any manner, and further agrees not to solicit or induce any employee or independent contractor to terminate or breach an employment, contractual or other relationship with Buyer.
    6. If any provision of this Order shall be deemed to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
    7. This is not an exclusive agreement. Buyer is free to engage others to deliver the same as, or similar to Seller's Products. Seller is free to, and is encouraged to, advertise, offer and provide Seller's Products to others; provided however, that Seller does not breach this Order.
    8. Save for when the Master Supply Agreement or the Entitled Buyer Purchase Agreement are applicable, this Order is the complete, final and exclusive statement of the terms of the agreement between the parties and supersedes any and all other prior and contemporaneous negotiations and agreements, whether oral or written, between them relating to the subject matter hereof.