ALBATROS NORTH AMERICA DBA SEPSAMEDHA NORTH AMERICA
Edition: 15 / Date: 16.FEB.2022
These General Terms and Conditions apply to procurement by ALBATROS NA for goods, products, materials and services. The terminology used herein is as follows:
“Work” shall mean any services, goods, materials, merchandise or products to be furnished by Seller hereunder.
”Buyer” shall mean ALBATROS NA (ALBATROS North America)
”Seller” shall mean the Individual and / or entity providing the Work hereunder.
“Order” shall mean these Purchase Order General Terms and Conditions, Buyer’s Purchase Order form, Buyer’s technical specifications (“Specifications”) all addenda and attachments hereto. This Order shall constitute the agreement between Buyer and Seller with respect to the Work described herein. In the event of a conflict between any provision of these General Terms and Conditions and any provision of any other of the foregoing documents, the former shall govern.
“Delivery Date” for each Purchase Order line (called as “Date (dd.mm.yyyy)” in the header of the Purchase Order) shall be the date by which Work shall be received by Buyer at Buyer’s final destination set forth in this Order, notwithstanding the method and timing of shipment from the shipping point.
ACCEPTANCE AND WAIVER
Unless otherwise agreed in writing signed by the Buyer, acceptance is expressly limited to the terms and conditions herein, and the Seller, by accepting this Order, shall be deemed to have agreed to each and all of said terms and conditions, notwithstanding any terms or conditions contained in any document submitted by the Seller.
Failure of Buyer to insist on strict performance by Seller of the terms and conditions of this Order at any time shall not be construed as a waiver by Buyer of such performance in the future.
The Seller has ten (10) business days to accept the Order in writing after receipt (including but not limited to prices, delivery dates, quantities and other requirements). Supplier is required to initial every page of the purchase order, sign and send back via email to the appropriate SepsaMedha NA Purchasing Agent.
Seller’s commencement of performance pursuant to this Order shall be deemed to be Seller’s acceptance of all of the terms and conditions of this Order.
INTERPRETATION OF THE REQUIREMENTS
If Seller has any doubts about the meaning of any of Buyer’s Specifications, Seller shall immediately notify any doubtful matters to the Buyer, before commencing the Work to which the Specification pertains, so as to allow such doubts to be resolved or the Specifications modified within the schedule set forth in this Order.
The Seller shall not deviate from Buyer’s Specifications without Buyer’s prior written authorization.
The Seller shall carry out as many tests and checks as are reasonably necessary in order to ensure that the Work complies with the requirements of the Order.
When required by the Buyer’s Specifications, the Seller shall hand over all applicable and required tests attached to the delivered Work. The test identification shall allow the Buyer to easily recognize the Work, material, piece or assembly of said Work to which it belongs.
COMPLETION OF THE ORDER
Seller’s performance of its obligations under this Order shall not be considered completed until all the Work, conforming to all the requirements of this Order, and all the certificates, instructions, manuals, test material and other material and documentation and documentation required by the Order have been handed over to Buyer.
Buyer retains the right to inspect facilities and evaluate objective evidence of the Seller’s capability to provide the specified Work quality, prior to award of the Order. The results of this evaluation may determine the acceptance or rejection of the Seller as a qualified source for the subject procurement.
At all times, the Seller shall have in effect a written Quality System that:
Defines those actions, procedures and requirements necessary to ensure that all aspects of the Work conform to the Order;
Is in conformance with the international ISO 9000 Series, or the technical equivalent national ANSI/ASQC Q90 Series, of Quality Standards; and
Demonstrates their capability to control the processes that determine the acceptability of the Work supplied.
All of Seller’s Work furnished hereunder that contains software shall be in conformance with ISO: 9000-3. Comments, procedures, plans and other specified documentation associated with software design, coding, and maintenance shall be in English and available to Buyer upon request.
AUDIT & INSPECTION OF WORK & RECORDS
The Seller shall permit and also shall require each of its subcontractors and suppliers to permit representatives of Buyer and ALBATROS Corporation to inspect and audit the Work and records and any other documents relative to the Work. Evaluations performed by Buyer may include, but not be limited to, an inspection of Work and equipment, and/or review of the methods and procedures utilized in producing items, including software, for Buyer use as delineated in Buyer’s Specifications and drawings. Such records shall be made available, upon request, at the Seller’s place of business during normal business hours. The Seller’s records shall be maintained in accordance with generally accepted accounting principles and show actual costs of all items of labor, materials, supplies, services and all other expenditures for which compensation is payable pursuant to this Order. Such records shall be preserved at Seller’s expense for a period of a minimum of six years after acceptance of the Work.
Seller, including brokers and manufacturer’s representatives, must disclose the name and location of the manufacturing or assembling site immediately upon accepting this Order.
In order to ensure Buyer’s ability to receive and accept the Work promptly, the following information shall be provided by Seller with each package containing Work to be delivered to Buyer:
Delivery Note number and date;
Buyer’s part number per item;
Full description of the Work (in English) itemized with quantities per item;
Purchase Order number;
Components and materials need to be clearly identified by Buyer’s part numbers;
Any necessary symbols or instructions for the handling, transportation and storage of the Work requested by the Buyer or suggested by the seller;
Any manual referring to installation, operation, maintenance and calibration of the equipment or instruments, whichever may be applicable; and
Identification of any inherent hazard related to the handling, transportation, storage, use, resale, disposal or recycling/scrapping of the Work.
At least 2 copies of the Delivery Note shall be place inside each package.
The Delivery Note and Invoice for each package must match.
The Seller shall provide Buyer with an invoice, in duplicate, after delivery of Work.
In order to ensure Buyer’s ability to pay invoices promptly, the following information must be furnished on all invoices:
Invoice number and date;
Buyer’s part number per item;
Full description of the Work (in English) itemized with unit prices (including currency) and quantities;
Total invoice amount; and
Purchase Order number.
In case the shipping point is outside of the USA, the following information shall also be furnished on the invoice:
The Delivery Note and the Invoice for each package must match.
Seller shall send the original and one copy of the invoice to Buyer at the following address:
ALBATROS NA Accounts Payable. 6 McCrea Hill Rd, Ballston Spa, NY, 12020.
An electronic copy of the invoice shall also be sent to the Account Payable Department by email at the moment of shipment.
PACKING & CARTAGE
The Buyer will not pay charges for packing or cartage incurred without its prior written approval.
The Seller is responsible for delivering the Work in perfect condition, without damage, of any kind, including without limitation scratches or dents. In all cases, the Seller must use correct packing methods and packing materials to reasonably protect the Work against such damage, including without limitations damage from rough handling and corrosion and follow the Buyer’s packaging specifications.
The Seller shall mark on the packing, any conditions or recommendations with respect to the correct handling of the Work.
The Seller shall be responsible for any damage which happens to the Work due to deficient packing. The damage shall be repaired at no cost to the Buyer.
Components / materials need to be clearly identified by Buyer’s part numbers and match the delivery note in part numbers and quantities. One package cannot be identified by two or more of the Buyer’s part numbers.
Each component / material must be indivisible. Bulk subcomponents/hardware are not allowed unless previous written approval. Seller has to send materials already kitted according to the Purchase Order requirements.
Buyer may, at any time, make changes within the general scope of the Order, including, but not limited to, changes in specifications, design, delivery, testing methods, packing or destination. If such changes cause an increase or decrease in the cost of this Order or the time required to perform, an equitable adjustment shall be made and the Order modified in writing accordingly, provided that Seller notifies Buyer in writing within ten (10) days after the change is ordered. Nothing contained herein shall excuse Seller from proceeding without delay with the Order as changed, including failure of the parties to agree upon any adjustment to be made under this section. Changes shall not be binding upon Buyer except when confirmed in writing by an authorized representative of ALBATROS NA Procurement and Logistics Department, which writing expressly states that it constitutes a Change to this Order. The issuance of information, advice, approvals or instructions by Buyer’s technical personnel or other representatives shall be deemed expressions of personal opinion only and shall not affect Seller’s rights and obligations hereunder, unless the same is authorized in the foregoing manner.
· PERIOD OF PERFORMANCE
With respect to Seller’s delivery of Work, time is of the essence.
The Seller is firmly obligated to meet the schedule date(s) specified in this Order. An extension of time may be granted only if Buyer determines, in its sole discretion, that:
Completion of the Work is actually and necessarily delayed
The cause of delay both:
Is beyond the Seller’s reasonable control; and
Arises after the issuance of the Order and neither was, nor could have been anticipated by reasonable investigation before such issuance; and
Such delay could not have been anticipated and avoided or mitigated by the exercise of all reasonable precautions, efforts and measures, including without limitation planning, scheduling and rescheduling, whether before or after the occurrence of the cause of delay.
Notwithstanding the foregoing, delays caused by strikes, acts of God, acts or requirements of government authorities, war or other hostilities, riot or civil commotion, embargo and lockout shall be considered to have met all the qualifying conditions set forth, in the foregoing paragraph. Buyer shall have the right to cancel this Order, without liability of any kind to Seller, in the event that this Order is suspended for more than thirty days by reason of such cause.
Buyer may rescind or modify its decision to extend Seller’s time under this Section if it subsequently determines, at its discretion, that the delay can or could have been overcome or reduced by the exercise of the Seller’s reasonable precautions, efforts and measures.
· DELAY IN DELIVERY
If for any reason delivery cannot be made of the Work performed by the date(s) specified, hereunder, Seller must promptly advise Buyer by telephone and in writing, of the delay, the reason for the delay, and the proposed rescheduled date. Delayed performance will be accepted only as set forth in this Section 13.
Seller’s failure to deliver or perform within 30 days of the required schedule, however, without written notification and approval by Buyer, will be grounds for Termination of the Order as a result of Seller’s Default.
If any of Seller’s deliveries fail to meet the schedule hereunder, Buyer, without limiting its other rights or remedies, may direct expedited routing, and any excess cost incurred thereby shall be debited to Seller’s account.
In case of any delay of delivery, the Buyer may, at its sole discretion, apply a penalty equal to four percent (4%) of the value of the delayed Work or delayed item of Work for each week of delay (the first week will not be considered) and any part of the week will be considered a complete week. The total penalty for a delayed item or Work will not exceed ten percent (10%) of the value of said item.
· EARLY DELIVERY OR OVERSHIPMENT
Buyer shall not be liable for Seller’s commitments or production arrangements in excess of the amount, or in advance of the time (more than 30 days before the Delivery Date), necessary to meet Buyer’s delivery schedule. Work (including, without limitation, raw materials, components, services, intermediate assemblies, construction, end products, computer software and data) which is delivered in advance of schedule shall at Buyer’s sole option, either:
Be returned at Seller’s expense for proper delivery;
Have payment therefore withheld by Buyer until the date such Work is actually scheduled for delivery; or
Be placed in storage for the Seller’s account until the delivery date specified herein.
Deliveries and risks shall be F.C.A. Shipping Point as that term is defined in INCOTERMS 2020 unless otherwise expressly stated in the Order. Notwithstanding the foregoing, the Delivery Date specified in the Order is always the date by which the Work must be received at Buyer’s final destination point. Seller shall deliver Work to the Shipping Point sufficiently in advance of the Delivery Date to ensure that the Work is received at Buyer’s final destination point by the Delivery Date. As a general rule, in case the Shipping Point is:
North America: Work shall be delivered to the Shipping Point at least one week before Delivery Date;
Central America: Work shall be delivered to the Shipping Point at least two weeks before Delivery Date;
South America/Europe: Work shall be delivered to the Shipping Point at least five weeks before Delivery Date;
Rest of the World: Work shall be delivered to the Shipping Point at least seven weeks before Delivery Date.
Seller’s quotation shall already reflect the foregoing transit times. Therefore, the quotation delivery date will be the standard delivery manufacturing time plus the estimated transit time listed above.
Deliveries are to be made both in quantities and at times specified herein.
Buyer could require Seller to specify Part Number; Bill of Material, Drawing or Cut Table Edition as well as Manufacturing date attached to each unit of Work if necessary for complex Works to avoid mistakes, facilitate updates and be easily identified in the warehouse.
· DELIVERY OF WORK WITH AN EXPIRATION DATE
Seller shall ensure that as of the Delivery Date each batch of Work shall have at least eighteen (18) months of expiry for item when item has 2 or more years of shelf life; or 75% percent of its shelf life remaining unless approved on written by the buyer.
· TRANSFER OF WORK TITLE
Subject to Buyer’s rights to reject Work and to rescind acceptance of Work under Section 14, transfer of title to Work shall occur after receipt and inspection of Work at Buyer’s facility.
· NOTICE OF SHIPMENT
Notice of each shipment, giving Order number and kind and quantity of articles, must be sent to the Buyer’s Procurement Officer by email on date of shipment. The notice should be clearly marked “Notice of Shipment”.
· CONSOLIDATION OF SHIPMENT
Orders for shipment to Buyer should be consolidated in a single shipment, and the articles on each order plainly marked with Buyer’s Order numbers.
If more than one delivery a week needs to be carried out, the Buyer’s written approval is needed.
Buyer may accept or reject over shipments at its sole discretion. Seller may, however, recommend Buyer potential changes to standardize final quantities in a shipment, or maximize existing layout. Any change will need to be approved by Buyer in writing.
Except when specified by the Buyer in writing,
All shipments weighing less than 110 pounds (50 kilograms) in a box (not in a pallet) will be sent on the account provided by the Buyer using these services:
International shipments: International Economy (FEDEX or DHL)
Inside the USA: UPS ground
Any shipment shipping on a pallet OR any shipment weighing more than 110 pounds (50 kilograms), the Seller shall contact the buyer for each individual shipment to request method of shipment.
Maximum weight (300 kg).
Maximum piece dimensions (L x W x H): 48” x 48” x 63” [120 x 120 x 160 cm].
· FREIGHT FORWARDER
Buyer’s cell phone (one that accepts texts) and email address must be included in the shipping carrier’s website or freight forwarder for each shipment so the buyer can be contacted in case of issues.
14. INSPECTION / REJECTION
a. Buyer shall have and retain the right to inspect and approve or reject any and all Work at Buyer’s location after delivery, even if previously inspected at place of manufacture, and even if payment may have been made previously.
b. Buyer shall have a reasonable time to reject or rescind acceptance of any Work, whether for deficiencies in count, weight, quality, loss, damage or any other defect or deficiency (hereinafter “Non-Conforming Work”) delivered hereunder, provided that in no event shall a reasonable time be deemed to be less than 15 days from the date of acceptance of said Work. Buyer’s notice to Seller of its rejection of Non-Conforming Work or of its rescission of acceptance of Non-Conforming Work shall be accompanied by a report (“Non-Conforming Report”) stating the reasons for rejection or rescission.
c. Without waiving any of Buyer’s other rights, damages with respect to such claims may be calculated by Buyer and the amount thereof deducted from Seller’s invoice, or, if previously paid, will be reimbursed by Seller to Buyer or deducted from any other pending invoice. Without waiving any of Buyer’s other rights and remedies, Buyer shall also have the right to:
Reject all or part of the Work, with or without instruction as to its disposition;
Require the correction of the rejected Work or part of the Work; or
Require its replacement.
d. Notwithstanding the foregoing, if at the time of Buyer’s notice of rejection or rescission of acceptance of Non-Conforming Work, the lead time set forth in Section 13(d)(i) for shipment of the Work has not yet elapsed, then the Seller will have forty-eight (48) hours after said notice to decide to correct the Non-Conforming Work, or replace it at Seller’s sole expense, provided that the corrected or replaced Work conforming with this Order will arrive at the Buyer’s final destination not later than fifteen (15) days after the original scheduled Delivery Date.
e. Work or lots of Work which have been rejected or required to be corrected shall be removed or, if permitted or required by Buyer, corrected in place by and at the expense of the Seller promptly after notice.
f. The Buyer reserves the right to accept a part of any shipment and reject the balance.
g. Buyer shall have no further obligation with respect to rejected Work. In no event shall Buyer incur any liability for payment of rejected Work.
h. If rejected Work is returned to the Seller, the Buyer will send Seller a number designated “Devolution Order Number” so the Seller can send the repaired Work against that Devolution Order Number. The Buyer also will send a Devolution Order Number for replacement for rejected Work. This Devolution Order is not billable to Buyer, and all repaired and replaced Work will be sent back to the Buyer at Seller’s expense.
i. If Seller fails to take back, repair or replace Non-Conforming Work as required by Buyer in accordance to this Section, Buyer may, in addition to all other remedies:
By separate Order or otherwise, replace or correct such Non-Conforming Work and charge to the Seller the additional cost incurred by Buyer thereby;
or Cancel this Order for cause as provided herein in the Article titled “Termination For Cause As a Result of Seller’s Default”.
j. In addition to any other remedies for Non-Conforming Work, Buyer shall have the right to charge to Seller the time spent by the Buyer’s Quality Department and other Departments to address this Non-Conforming Work issues at the Buyer’s current hourly rate.
k. If the Seller is required to submit samples of Work for Buyer’s evaluation and/or approval either as pre-production samples prior to authorization to begin production or as production samples, the following shall apply to said samples:
In addition to all remedies Buyer may, at its sole discretion, terminate this Order for default after two consecutive sample submissions are rejected for non-conformity with this Order and Seller shall be liable for all costs borne by Buyer to obtain compliant Work.
Seller shall not ship Work until Buyer has approved a sample (“Approved Prototype”) of said Work in writing. The Seller has the right to request that Buyer send said Approved Prototype to the Seller’s facility at the Buyer’s expense to ensure that all the production units are a copy of the Approved Prototype. The Approved Prototype will be never modified by the Seller without prior written approval from the Buyer.
Any mistake by the Buyer in the approval of the Approved Prototype does not waive any of Seller’s obligations to comply with the Specifications of the Buyer.
15. MATERIAL SAFETY DATA SHEETS
a. Material Safety Data Sheets (MSDS) are required for any chemical or material transferred onto Buyer’s property that contains a toxic substance or hazardous chemical or may emit a toxic substance or hazardous chemical as defined in the New York State Right to Know Law (12 NYCRR Part 820) and Occupational Safety and Health Administration OSHA Hazard Communication Standard (29 CFR 1910.1200).
b. The MSDS shall be submitted with Seller’s bid or proposal, and at any time after award of this Order that the Seller determines a toxic substance or hazardous chemical will be transferred onto Buyer’s property. The notice shall specify the Work name and Buyer’s part number, the nature of the hazard, proper precautions that must be undertaken by the Buyer or others and any additional information that the Buyer should reasonably expect to know to protect its interest.
c. All MSDS shall be submitted to ALBATROS NA Buyer by email with a copy to:
16. PATENTS, COPYRIGHTS, TRADEMARKS, TRADE SECRETS, OTHER INTELLECTUAL PROPERTY RIGHTS AND USE OF INFORMATION
a. Seller covenants and agrees to defend, indemnify and hold Buyer harmless from all claims, suits, actions or proceedings by reason of alleged infringement of any patent, copyright, trademark, trade secret and other intellectual property right which arises as a result of Buyer obtaining or using the Work covered by this Order. This covenant and agreement extends to all intellectual property rights, whether created or granted before or after the delivery of said Work to Buyer. Buyer will give prompt notice to the Seller of any suit or proceeding against it, and Buyer through its counsel will provide such information and assistance as may be reasonably needed to enable Seller to defend such litigation, at Seller’s sole expense.
b. All patentable inventions or Work subject to copyright discovered or written in the course of performing the Work, shall be the sole property of Buyer. These requirements shall survive termination or final payment.
c. Any specifications, drawings, sketches, models, corporate logos, samples, technical information or data (all hereinafter designated “information”) furnished to the Seller hereunder or in contemplation hereof shall remain the Buyer’s property. All such information written, graphic or other tangible form shall be returned at the Buyer’s request. Unless such information was previously known to the Seller free of any obligation to keep it confidential, or has been or is subsequently made public by the Buyer or a third party, it shall be kept confidential by the Seller, shall be used only in the filling of orders hereunder, and may be used for other purposes only upon such terms as may be agreed upon in writing signed by Buyer and Seller.
17. REPRODUCTION OF DOCUMENTATION
The Buyer shall have the right at no additional charge to use or incorporate all or portions of Work found in the Seller’s literature and/or reproduce the Seller’s applicable literature such as operating and maintenance manuals, technical publications, prints, drawings, training manuals and other similar supporting documentation and sales literature. The Seller agrees to advise the Buyer of any updated information relative to the foregoing literature and documentation with timely written notice.
18. SUPPORT OF THE WORK
a. The Seller warrants that the Work purchased under this Order, including sub-assemblies, service and spare parts shall be available to Buyer during the operational life of the Work purchased or five years after the date of final shipment under this Order, whichever is later.
b. In the event all or part of Work being supplied to Buyer becomes, or is to become, obsolete or unavailable the Seller shall provide timely written notice to Buyer and provide sufficient lead time to enable Buyer to make a final lifetime buy of such Work from the Seller. The Seller further agrees to provide Buyer, at no charge, with any and all drawings, specifications, data and know-how which will enable Buyer to service, manufacture or procure said goods and services, subassemblies and spare parts from other sources under a royalty-free license which is hereby granted.
19. SINGLE BID SITUATIONS
a. In the event a single bid is received by Buyer, a price and/or cost analysis will be made before the award of this Order. A price analysis is the process of examining the bid and evaluating the price without evaluating separate cost elements. A price analysis, by comparing the bid to other similar procurements, will be based on an established or competitive price of the elements used in the comparison. This comparison will be made to a purchase of similar quality and involving similar specifications and where a difference exists: a detailed analysis will be made of this difference and the costs therefore.
b. Where is it impossible to conduct a valid price analysis, it may be necessary that a cost analysis of the bid price be conducted. The single bidder will then be requested to provide sufficient information and data so that a cost analysis can be made.
20. MOST FAVORABLE PRICING
If the Seller shall sell any Work of the kind and specifications covered by this Order to any other customer at a price which is lower than the purchase price then in effect hereunder for the same or a lesser quantity of Work, the purchase price for said Work hereunder shall be reduced to such lower price for all comparable quantities of Work under unshipped orders of the Buyer and under orders thereafter placed by the Buyer so long as such lower price remains in effect.
Buyer’s employees will not accept gifts or gratuities of any type from Seller.
The Seller shall not subcontract any portion of the Work without the prior written approval of Buyer. The Seller must submit this request for approval to Buyer, at least 10 days prior to subcontractor’s performance, including the Order number, description of the Work to be subcontracted, commencement and completion dates, subcontract value, subcontractor’s name, resume of similar work performed by the subcontractor, client contacts and telephone numbers. In the event permission is granted to subcontract the Work, the provisions of this Order shall apply to all subcontractors. Approval of any subcontractor or supplier by Buyer shall not operate as a waiver of any right against the Seller or third parties, nor shall it relieve the Seller of any of its obligations to perform the Work as herein set forth.
23. TEMPORARY SUSPENSION
Buyer may, at any time, order the temporary suspension of the work to be performed or the associated deliveries. Buyer will be entitled to adjust the delivery dates when required by the work/project needs by sending a Change Order to the Seller at least one (1) month prior to the first delivery date to be affected by the above mentioned adjustment. Delivery dates taking place prior to the 1 month term, with only finished work compliant with the contract requirements and quality standards, shall not be affected by the adjustment unless the parties agree the to the contrary in writing.
24. TERMINATION AS A RESULT OF SELLER’S DEFAULT
a. In any of the circumstances set forth in subparagraphs i through vi of this paragraph, Buyer upon written notice to Seller, may, without limiting any of its other remedies for default, declare the Seller in default and the Order abandoned and take over and complete the Work or any part thereof through other sellers, as agent for and at the expense of the Seller, or declare the Seller in default and to terminate the Order as to any part of the Work not yet delivered:
If the Seller shall fail to begin the Work, or
If the Work shall be abandoned by the Seller, or
If the Order shall be assigned or the Work sublet otherwise than as herein specified, or
If at any time Buyer shall find that the performance of the Order is being unreasonably delayed without excuse hereunder, or that the Seller is violating any of the provisions or covenants of the Order, or
If the delivery of the Work or any part thereof not be completed within the time prescribed in the Order for its delivery or within the time to which such delivery may be extended by Buyer, or
If the Seller shall become insolvent or shall make an assignment for the benefit of creditors.
b. If Buyer chooses to do so, or in the event that a court of competent jurisdiction determines that Buyer incorrectly terminated the Order, pursuant to this Article, Buyer reserves the right to revise the termination to a Termination for Convenience.
25. TERMINATION FOR CONVENIENCE
a. If at any time Buyer determines not to proceed or continue with the performance of the Order or any part thereof or for any reason not listed in Section 23 of this Order, it shall have authority to terminate this Order as to any or all portions not yet performed provided, however, that in the case of such termination in the absence of a breach of this Order by Seller, Buyer shall reimburse the Seller for its reasonable costs already incurred. Such termination shall be in writing. Upon notice of termination, Seller will stop work as directed by Buyer.
b. Payment to Seller upon termination for convenience under this Section 24 for completed Work delivered to and accepted by Buyer, shall be at the contract price. Payment for Seller’s costs incurred prior to termination shall be in an amount agreed upon in writing signed by Seller and Buyer, but the total of all such payments for completed Work and Seller’s costs shall in no event exceed the Contract price. In no event, will Seller be paid anticipatory profits or other consequential damages.
c. To facilitate the determination of the appropriate compensation to Seller upon termination of the Order under this Section 24, Seller agrees to provide supporting cost data as requested by Buyer and to permit Buyer’s auditors access to records to verify such cost data. All completed or partially completed items of Work for which compensation was paid to Seller upon termination shall become the property of the Buyer.
The warranties, express and implied, created or recognized by the Uniform Commercial Code of the State of New York shall apply to all articles furnished hereunder, and may not be excluded or modified. The Seller agrees to take back and replace any and all articles which violate such warranty and agrees to pay transportation charges both ways in such event. Such articles while held by the Buyer pending Seller’s disposition will be at Seller’s risk and expense. In the absence of an express provision for a different warranty period, all articles provided hereunder are warranted by the Seller against all defects in material and workmanship for a period of one year from the date of acceptance by the Buyer.
Any controversy or claim arising out of, relating to or attributable to this Order or the breach thereof may at Buyer’s sole election be settled by final and binding arbitration in accordance with the rules of the American Arbitration Association, to be held in Ballston Spa, New York, U.S.A., and judgment upon the award rendered by the arbitrator (s) may be entered in any court having jurisdiction thereof.
28. APPLICABLE LAW AND JURISDICTION
The rights of the parties in this Order shall be governed by and construed under the laws of the State of New York without regard to conflicts of laws rules. This Order shall be deemed to have been made and entered into in the aforementioned state. Seller hereby consents to submit to the jurisdiction of the courts of the State of New York and Federal courts located in the State of New York, and said courts shall be the only courts to have jurisdiction over disputes between the parties hereto.
29. COMPLIANCE WITH LAWS
a. By acceptance of this Order, the Seller agrees to comply with the requirements of Executive Order 11246, as amended, relating to Equal Employment Opportunity; Executive Order 11701, relating to the Employment of Veterans, and the Rehabilitation Act of 1973 and their implementing regulations at 41 CFR 60-250 and 41 CFR 60-741. The Seller also agrees to comply with the Fair Labor Standards Act and the Occupational Safety and Health Act, and all other applicable federal, state, county, and local laws, ordinances, regulations and codes (including the procurement of required permits and certificates and compliance with the Small and Minority Business Investment Act known as Public Law 95-507) in the Seller’s performance hereunder. Whether or not the Buyer provides a specification, if Work furnished by the Seller is required to be constructed, packaged, labeled or registered in a prescribed manner, the Seller shall comply with the applicable federal, state, county and local laws, ordinances, regulations and codes. The Seller further agrees to indemnify and hold the Buyer and its customers harmless from any loss or damage that may be sustained by the Buyer, by reason of the Seller’s failure to comply with any federal, state, county or local laws, ordinance, regulations and codes.
b. The Buyer encourages the Seller to provide opportunities and assistance to minority and women owned businesses in accessing the necessary channels to allow their maximum participation in the provision of goods and services. A minority owned business is defined as a business owned and operated by a person(s) who is a member of a minority group such as African American, Hispanic, Native American (American Indian), Asian American (Chinese, Korean, from India, Japanese, Pacific Islander), or Cape Verdean (from the Cape Verde Islands off the coast of Africa).
30. MANDATORY CLAUSES REQUIRED UNDER GOVERNMENT CONTRACTS OR SUBCONTRACTS
All Clauses contained in the current issue of the Federal Acquisition Regulations (FAR) and supplements thereto, which the government makes mandatory for a contractor under a government contract to include in its subcontracts there under, will apply to this Order.
31. THE SELLER AS AN INDEPENDENT CONTRACTOR
The Seller shall perform the obligations of this Order as an independent contractor and under no circumstances shall Seller or any of Seller’s officers, directors, employees or agents be considered an agent or employee of the Buyer. The Terms and Conditions of this Order shall not, in any way, be construed as to create a partnership or any other kind of joint undertaking or venture between the parties hereto. The Seller expressly waives any and all rights, which may or may not exist to claim any relief under the Buyer’s comprehensive insurance policy, worker’s compensation or unemployment benefits.
32. DEFENSE AND INDEMNIFICATION
To the full extent permitted by applicable law, Seller shall indemnify, defend and hold harmless Buyer, its directors, officers, employees and agents, with respect to any liability, claims, demands, causes of action, losses or damages, (collectively, “Claims”) including, without limitation, reasonable attorneys’ fees, arising out of or related to Seller’s negligent acts or omissions or Seller’s breach of this Order, including without limitation any and all claims for actual or alleged bodily injury, property damage or economic injury (to any person, including without limitation Seller’s employees or independent contractors) arising out of or related to the Work (collectively, “Indemnified Matters”). Without limiting the foregoing, Seller assumes all risk of bodily injury and property damage arising from or related to any high voltage testing by Seller or Seller’s contractors (as “high voltage” is defined by the law of the jurisdiction where such testing is conducted), and Seller shall indemnify, defend and hold harmless Buyer with respect to any Claims arising from or related to such testing, whether such Claims are for negligence, strict liability or otherwise. This section shall survive Termination of the Order.
a. Throughout the term of this Order, Seller shall maintain in force policies of commercial general liability insurance providing coverage with limits of at least five million dollars ($5,000,000) per occurrence with respect to Indemnified Matters arising world-wide and naming Buyer as additional insured on a primary and non-contributory basis, including products liability and completed operations liability coverage. Such coverage shall not exclude coverage for Claims against Buyer arising from injury to employees of Seller. In the event that Seller or its subcontractors are to perform Work at Buyer’s premises, Seller shall additionally maintain for the duration of the Work the following: Workers’ compensation insurance in amounts required by statute in the state where the Work is to be performed; employers’ liability insurance with limits of at least five million dollars ($5,000,000) per occurrence; and automobile liability insurance covering all owned and non-owned vehicles to be used in connection with such Work.
b. All insurance policies required hereunder shall be issued by insurance companies admitted to the state in which Buyer is located, holding A.M. Best ratings of “A-“ or better, and (with the exception of any workers’ compensation policy) shall name Buyer as additional insured on a primary and non-contributory basis with respect to all Indemnified Matters, including without limitation products and completed operations, without any cross-liability exclusion or exclusion for injury to an employee of any insured. Said insurance policies additionally shall provide that the insurer will give Buyer written notice at least thirty (30) days in advance of any termination, reduction or Work change in coverage.
c. Prior to the commencement of Work and thirty (30) days prior to any renewal or replacement of any insurance policy, Seller shall furnish Buyer with Certificates of Insurance evidencing all policies of insurance required hereunder, to which all additional insured endorsements required hereunder shall be attached. Upon written request by Buyer, Seller shall furnish Buyer with a copy of any insurance policy referred to in this Section.
34. ENTIRE AGREEEMENT
This Order contains the entire understanding of the parties with respect to the subject matter hereof and supersedes and replaces all prior agreements between the parties and all provisions of Seller’s terms and conditions of sale. There are no representations, warranties, promises, covenants or understandings other than those contained herein.
If any of the terms or conditions of this Order shall be held by a court of law or arbitrator to be invalid, such invalidity shall not invalidate the entire Order.
36. NO ASSIGNMENT
This Order is binding upon and shall inure to the benefit of the parties and their respective representatives and permitted successors and assigns. Except as otherwise expressly provided in this Order, or with Buyer’s express written consent, which shall not be unreasonably withheld or delayed, Seller’s obligations and rights shall not be assignable by any action of Seller or by operation of law, and any attempt at such assignment shall be null and void.
37. WAIVER AND MODIFICATION
No waiver or modification of any of the terms of this Order shall be valid unless in writing expressly referring to this Order and signed by the parties. The failure of one party to insist upon strict performance of any of the covenants or terms hereof to be performed by the other party shall not be construed as a waiver of such covenants or terms. No waiver by one party of a breach hereof or default hereunder shall be deemed a waiver by the other party of a subsequent breach or default of like or similar nature. No delay by either party in exercising its rights hereunder shall be deemed a waiver of such rights.
Wherever notice is required to be given under this Order, it shall be deemed to be good and sufficient notice if in writing, signed by an officer or an authorized agent of the party serving such notice and sent by certified mail to the other party as follows:
Notice of Buyer: PURCHASING MANAGER-ALBATROS NA. 6 McCrea Hill Rd, Ballston Spa, NY, 12020.
Notice to Seller: The address and department of Seller shall be as set forth in the annexed Purchase Order, unless otherwise specified in a notice to Buyer in conformity with this Section.
The following sections will apply even after the termination of the Agreement:
Section 16. Patents, copyrights, trademarks, trade secrets, other intellectual property rights and use of information;
Section 25. Warranty;
Section 26. Arbitration;
Section 27. Applicable Law and Jurisdiction;
Section 31. Defense and Indemnification; and
vi. Section 33 through 39.
Any paragraph or section headings used in this Order are for reference purposes only, are not a substantive part of this Agreement and are not to be considered in its interpretation or construction.