General. In consideration of the mutual promises, conditions, terms and provisions contained in this Purchase Order, the sufficiency of which is hereby acknowledged, the parties hereto mutually agree to these Terms and Conditions of Purchase (these “Terms and Conditions”) which shall apply to this Purchase Order submitted by Womack Machine Supply Co., LLC and its affiliates d/b/a Evolution Motion Solutions (“Evolution”) and accepted by the Vendor; unless the parties have entered into a formal distribution/ reseller agreement. This Purchase Order is an offer to purchase goods and/ or services as set forth on the face thereof and constitute a contract under the Uniform Commercial Code (UCC). Any of the following acts by Vendor shall constitute acceptance of this Purchase Order: (a) Signing and returning a copy of such Purchase Order; (b) delivery of any of the products ordered; (c) commencement of performance or informing Evolution in any manner of commencement of performance; or, (d) returning Vendor’s acknowledgement. Required changes to these Terms and Conditions must be communicated to Evolution within three (3) business days from receipt of this Purchase Order. It is expressly understood and agreed that no provision of any delivery ticket, invoice, confirmation/ acknowledgement of Purchase Order, or other instrument used or provided by Vendor shall supersede the provisions of this Purchase Order, unless specifically agreed to in a writing signed by an authorized representative of Evolution. These terms and conditions together with the specifications, drawings, or other documents referred to on the face of this Purchase Order, or attached, or any documents incorporated by reference, supersede any prior or contemporaneous communications, representations, promises, or negotiations, whether oral or written, with respect to the subject matter of this Purchase Order. Acceptance of goods or services covered by this Purchase Order shall not constitute acceptance by Evolution of Vendor’s terms and conditions. To the extent this Purchase Order is in any way deemed to be an acceptance of a quotation or other offer by Vendor, any such acceptance is expressly conditional upon the consent of Vendor to these Terms and Conditions and the Purchase Order.
Purchase Order. All prices are based upon the terms set forth in the Purchase Order delivered by Evolution to Vendor. All terms of a Purchase Order, including, without limitation, price may not be modified except in a writing signed by an Executive Officer of Evolution.
Payment Terms. All payments shall be made by Evolution to Vendor NET thirty (30) days of Evolution’s receipt of a valid invoice, unless other terms are expressly agreed upon in writing by each party. Payment terms shall be based upon invoice terms, without the requirement of any advance installment or progress payments. Any amounts owing to Evolution by Vendor may be set off against amounts otherwise due to Vendor under any Purchase Order.
Delivery. Time is of the Essence. Delivery shall be made and title and risk of loss shall pass to Evolution upon Evolution’s receipt and acceptance of the goods. Evolution shall have a reasonable period of time after receipt of the goods to inspect and accept the goods. If the goods do not meet the terms, conditions, and requirements of the Purchase Order, Evolution may return the goods to Vendor, at Vendor’s cost. Upon such return, Vendor shall timely replace the goods with conforming goods, or at Evolution’s election, Evolution may terminate the Purchase Order and receive a full refund of any payments previously made by Evolution to Vendor related to such Purchase Order. Quantities stated in the Purchase Order are the maximum quantities ordered and quantities in excess thereof shall not be deemed accepted by Evolution unless Evolution explicitly elects to accept such excess. Evolution reserves the right to return for credit any quantities delivered in excess of those set forth in the applicable Purchase Order at the risk and expense of Vendor. All product shipped by Vendor pursuant to a Purchase Order shall be packaged, marked, and otherwise shipped in a manner which is (i) in accordance with good commercial practice; (ii) adequate to insure safe arrival of the product at Evolution’s designated facility; and (iii) in accordance with the product’s specifications and packaging or shipping requirements as set forth in the applicable Purchase Order.
Warranty. Vendor warrants to Evolution, its successors, assigns, customers and end users that, upon delivery, and during the entire Warranty Period specified below, all Goods furnished (including all replacement or corrected Goods or components which Vendor furnishes pursuant to this warranty) will:
(a) be free from defects in material, workmanship, and design, even if the design has been approved by Evolution;
(b) conform to applicable drawings, designs, quality control plans, specifications and samples and other descriptions furnished by the Vendor;
(c) be free and clear of any and all liens, restrictions, reservations, security interests or encumbrances: and,
(d) the Warranty Period will be for a period of eighteen (18) months from the date of delivery to the Customer or twelve (12) months from the date of use
by the Customer, whichever occurs first, or the manufacturers stated time period, whichever is longer. This warranty shall extend directly to Evolution and its customers (each a “Evolution Customer”). If the purchased goods are incorporated into an assembled product for delivery to a Evolution Customer, this warranty shall also extend to the purchaser of such assembled product. No inspection, tests, approval, design approval, or acceptance of the Goods relieves the Vendor from responsibility for warranty or any latent or patent defects, fraud, or negligence. If Goods are defective or nonconforming, Evolution may, by written notice to the vendor rescind the Purchase Order as to the Goods; accept the Goods at an equitable reduction in price; or reject the Goods and require the delivery of replacements.
Insurance. Vendor shall, at its sole cost and expense, procure and maintain the following insurance coverage in the minimum limits indicated: (a) $1,000,000 per person/ $5,000,000 per occurrence bodily injury and/or property damage, with coverage including, but not necessarily being limited to, commercial general liability insurance coverage on premises/ operations; underground, undermining, explosion and collapse (xcu) hazard; product/ completed operations; and contractual liability coverage extending to contractual liability assumed; (b) workers’ compensation insurance coverage as required by the laws of the state in which the work is performed regarding such insurance; and, (c) automobile liability in a sum no less than $1 million. All insurance required as a part of these Terms and Conditions shall be placed with insurance companies which are authorized to do business under the laws of the state or states in which the goods are manufactured, assembled and/or delivered and shall be in a form reasonably acceptable to Evolution. Vendor shall provide evidence that the required insurance is in place in the form of insurance certificates. Upon request by Evolution, insurance coverage, except for workers’ compensation, shall provide that Evolution is named as an Additional Insured with waiver of subrogation for each required insurance coverage. Upon request by Evolution, all insurance shall contain a provision prohibiting cancellation or material revision except upon at least thirty (30) days prior written notice to Evolution.
Indemnification. Vendor agrees to defend, hold harmless and indemnify Evolution and its affiliated companies, officers, directors and employees from all damages, liabilities and costs (including, without limitation, attorneys’ fees and costs) arising out of or in connection with Vendor’s performance, or any breach or default by Vendor, under a Purchase Order or these Terms and Conditions. For purposes of this article, Vendor shall include its present and former directors, officers, employees and agents, and seller’s affiliated corporations and their respective present and former directors, officers, employees and agents. For purposes of this article, “Evolution” shall include its present and former directors, officers, employees and agents, and its affiliated corporations and their respective present and former directors, officers, employees and agents. Vendor agrees to indemnify, hold harmless, defend and release Evolution from and against all claims of third parties for loss or damage to property and all injury or death to persons, including costs and expenses incident thereto (“Damages”) which Evolution may incur or for which Evolution may become liable or is alleged to be liable where such Damages in any way arise out of a defective manufacturer design and/or Vendor’s negligence or willful misconduct in the design or manufacture of the products supplied by Vendor to Evolution pursuant to any Purchase Order.
Force Majeure.
Neither party will be liable for any delay or failure to perform its obligations hereunder due to any cause beyond its reasonable control and foresight, including and without limitation: manmade (sabotage, picketing or boycotts); societal (riots, terrorism); political or governmental (changes in law, acts of the government in its sovereign capacity, or even ruling regimes); market conditions (inability to obtain goods); or Acts of God (natural occurrences, hurricanes, floods, tornadoes). This includes third party actions beyond the reasonable control and without the fault or negligence of the party whose performance is affected (“Force Majeure Events”); provided that the affected party provides the other party prompt notice (within ten (10) days) of the applicable circumstance, minimizes disruptions, and uses commercially reasonable efforts to minimize any disruption and re-commence performance as promptly as possible; provided, further, that if the duration of such Force Majeure Event exceeds thirty (30) days, the other party may terminate the Purchase Order upon delivery of written notice to the affected party and cancel all or part of any order with respect to the delayed product(s) without any liability whatsoever of the other party. This Section shall supersede all other provisions of these
Terms and Conditions and each Purchase Order and shall be construed and enforced in accordance with the laws of the State of Texas and the Texas Business and Commerce Code.
Patent/ Trademark Indemnification. Vendor guarantees, warrants, represents and covenants that the product(s) being sold to Evolution through each Purchase Order do not infringe directly or indirectly on any third party patent, copyright, trade secret, trademark, or other intellectual property right and are not counterfeit. Vendor agrees to release, defend, indemnify and hold Evolution harmless from and against any and all costs (including attorney fees and court costs), expenses, fines, losses, damages, and liabilities arising out of any alleged or actual patent, copyright, trade secret, trademark, or other intellectual property right or other infringement. Vendor certifies its product(s) being offered are not in violation of the Trademark Counterfeiting Act of 1984. If the product(s), or any part thereof, is held to constitute an infringement or patent violation, and the use of the product(s) or any part thereof is enjoined, Vendor will, at its own expense, either procure for Evolution and/or the customers of Evolution (“Evolution’s Customers”) the right to continue utilizing the product(s); replace the infringing product(s) with non-infringing product(s); or modify the product(s), in a manner acceptable to Evolution, so that such product(s) become non-infringing. Furthermore, Vendor will defend Evolution and/or Evolution’s Customers against any infringement lawsuit. In the event the foregoing options are not possible, Vendor shall compensate Evolution and/or Evolution’s Customers for all expenses resulting from the infringement.
Cancellation/ Changes:
Changes: Evolution may at any time by written order make changes or additions to any Purchase Order, including changes to the specifications, instructions for work, or method of packing. Such changes must be made in writing by a designated Evolution representative. If any such change causes an increase or decrease in the cost of or the time required for fulfillment of a Purchase Order, the parties shall cooperate to cause an equitable adjustment to the terms of such Purchase Order, to be evidenced in writing. Substitutions or changes in quantities or specifications by Vendor may not be made without Evolution’s prior written approval. Any changes to delivery timeframe, quantity, quality or price without Evolution’s approval will be considered a material breach of contract.
Cancellation for Convenience. Evolution has the right at any time, without cause, to cancel all or any part of any Purchase Order by written notice. In the event of such cancellation, Vendor will be entitled to payment in full for all product accepted prior to the date of cancellation, less any money previously paid to Vendor, plus payment of any reasonable expenses incurred by Vendor for custom-made works in progress that are the subject of the cancellation, at which point Evolution will have the right to take possession of such custom-made works in progress and any materials whose purchase price was paid by Evolution. Vendor will not be entitled to any lost profit, lost revenue, lost business opportunity, or any incidental, indirect, economic, and consequential or other damages because of cancellation.
Termination. Either party may terminate any Purchase Order upon the occurrence of a material breach by one party (the “Breaching Party”) under a Purchase Order or these Terms and Conditions, and the failure of the Breaching Party to cure such breach within ten (10) days of receipt of written notice from the other party (the “Non-Breaching Party”) identifying such breach.
Compliance with Laws. Vendor shall comply with all federal, state and local laws, ordinances, rules and regulations in the manufacture and sale of the product(s), including but not limited to: the Fair Labor Standards Act; the Occupational Safety and Health Act; Executive Order 11246 (Equal Opportunity Act);, the Rehabilitation Act of 1973; the Vietnam Era Veterans Readjustment Act; 41C.F.R. §60-1.4 (Equal Opportunity); 41 C.F.R. §60-250.4 (Affirmative Action for Disabled Veterans and Veterans of the Vietnam Era); 41 C.F.R. §60-741.4 (Affirmative Action for Handicapped Workers), and all laws relating to the environment or to human health or safety associated with the environment; or any other federal, state or local law or regulation of the same or similar nature. Vendor shall provide Evolution with Safety Data Sheets (formerly Material Safety Data Sheets) upon delivering any goods to Evolution. SDS must comply with the minimum information as detailed in Appendix D of 29 CFR 1910.1200. Vendor represents that, at the time of this Purchase Order: (1) its principals are not presently debarred, suspended, or proposed for debarment by the U.S. government (see FAR 52.209-6); (2) Vendor has filed all compliance reports required by the Equal Opportunity clause (see FAR 52.222-22); (3) Vendor is compliant with affirmative action programs required by the Secretary of Labor (41 CFR Parts 60-1 and 60-2); (4) compliance with Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235); and, (5) Vendor is compliant with Environmental Requirements; the U.S. Foreign Corrupt Practices Act; Anti-bribery Laws of the United States; and, the Sarbanes-Oxley Act, all as amended.
Vendor warrants that no Products will contain any of the substances identified in Article 4.1 of the European Parliament Directive 2002/95/EC (RoHS Directive) as that Directive is updated from time to time. Upon request, in a form and substance satisfactory to enable Evolution to meet its compliance obligations with regards to Regulation (EC) No. 1907/2006 (“REACH”) or similar laws or regulations identified by Evolution including EU CLP (Classification, Labeling and Packaging Regulation) No. 1272/2008; EU BPR (Biocidal Products Regulation) No. 528/2012; the California Proposition 65 Safe Water and Toxic Enforcement Act of 1986; TSCA (Toxic Substances Control Act) including the Chemical Abstract Services (CAS) Registry Number; PFAS US EPA (Per- and Polyfluoroalkyl Substances) presence, type/name and quantity each as applicable, Vendor will provide Evolution with complete information regarding the chemical composition of any Goods (substances, preparations, mixtures, alloys or goods) supplied under this Purchase Order. Vendor warrants, when applicable, that no Products will contain iron and/or steel products originating in Russia; that no Product contain certain iron and/or steel products that are restricted for import into the EU, UK.
In accordance with applicable “Conflict Minerals” laws, Evolution must determine whether its products contain tin, tantalum, tungsten or gold or derivatives (“3TG”) originating in the Democratic Republic of the Congo and adjoining countries (“Conflict Minerals”). To the extent Vendor supplies direct materials containing 3TG to Evolution under this Purchase Order, Vendor commits to have a supply chain process to ensure and document a reasonable inquiry into the country of origin of the 3TG minerals incorporated into products it supplies to Evolution. If requested, Vendor will promptly provide information or representations that Evolution reasonably believes are required to meet its conflict minerals compliance obligations. Vendor shall indemnify, defend and hold Evolution harmless from any loss, damages, or costs, including attorney fees, arising from or caused in any way by any actual or alleged violation of any federal state or local law, ordinance, rule or regulation. Confidentiality. All documents, statistics, reports, data and other information provided to, created by, obtained by or made available to Vendor by Evolution in connection with or by virtue of any Purchase Order shall be treated as confidential by Vendor, and, absent the prior written consent of Evolution, Vendor shall not be entitled to use or make copies thereof for any purpose other than the fulfillment of Purchase Orders.
Alternative Dispute Resolution.
a. Mediation. The parties agree to submit any claim, controversy or dispute (collectively, a “Dispute”) arising out of or relating to a Purchase Order or these Terms and Conditions to non-binding mediation prior to bringing such Dispute in an arbitral tribunal, court or any other tribunal. The mediation shall be conducted in Dallas, Texas, through either an individual mediator or a mediator appointed by a mediation services organization or body experienced in the mediation of general business disputes, agreed upon by the parties and, failing such agreement within a reasonable period of time after a party has notified the other party of its desire to seek mediation of any Dispute(not to exceed fifteen (15) days), by the American Arbitration Association (the “AAA”) in accordance with its rules governing mediation. The costs and expenses of mediation, including compensation and expenses of the mediator (and except for the attorneys’ fees incurred by the parties), shall be borne by the parties equally.
b. Arbitration. If the parties are unable to resolve the Dispute within forty-five (45) days after the mediator has been chosen, then, upon election and action by either party, such Dispute shall be finally settled by arbitration in accordance with the terms hereof. Such arbitration may be initiated by any party serving upon the other party notice stating that the notifying party desires to have such Dispute reviewed by an arbitrator. The parties shall mutually agree upon a single arbitrator. If the parties cannot mutually agree upon an arbitrator within fifteen (15) days of either party’s request for arbitration, then upon written request by either party, the AAA shall select an arbitrator in accordance with its rules governing arbitration. The parties agree that the arbitrator chosen shall not in any manner be related to or affiliated with either of the parties. Except as otherwise set forth herein, the arbitral proceedings shall be conducted in Dallas, Texas, in accordance with and subject to the commercial arbitration rules of the AAA in effect from time to time. The decision in writing of the arbitrator so selected or appointed shall be final and conclusive upon both parties. The costs and expenses of arbitration, including the compensation and expenses of the arbitrator, shall be borne by the parties as the arbitrator may
determine. Either party may apply to any court which has jurisdiction for an order conforming the award. Any right of either party to judicial action on any matter subject to arbitration hereunder is hereby waived, except suit to enforce the arbitration award or for equitable relief as set forth below.
c. Equitable Relief. Notwithstanding the preceding, the parties acknowledge that this Section 10 shall not preclude either party from seeking equitable relief from a court of competent jurisdiction (i.e., for a temporary restraining order, injunctive relief or similar equitable relief) necessary to protect a party’s interests upon a breach of a Purchase Order or these Terms and Conditions.
Miscellaneous.
a. All notices, requests, consents, and other communications under these Terms and Conditions shall be in writing and shall be deemed to have been delivered on the date personally delivered or the date deposited in the United States Postal Service, postage prepaid, by certified mail, return receipt requested, or faxed and confirmed, if addressed to the respective parties at the addresses communicated by each party to the other. Either party hereto may designate a different address by providing written notice of such new address to the other party hereto.
b. All Purchase Orders and these Terms and Conditions shall be construed and enforced in accordance with and governed exclusively by the laws of the State of Texas, and exclusive venue for any proceeding relating to the same shall be in Dallas County, Texas. This Purchase Order specifically excludes the provisions of the 1980 UN Convention on Contracts for the International Sales of Goods and the UN Convention on the Limitation Period in the International Sale of Goods.
c. Severability. If any provision of this Purchase Order is adjudicated to be invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision of this Purchase Order which can be given effect without the invalid or unenforceable provision.
d. Waivers. No waiver shall be effective unless it is in writing, signed by the party against which the waiver is claimed. The failure of either party to require performance under any provision of this Purchase Order shall in no way affect the right of such party to require full performance at any subsequent time, nor shall the waiver by either party of a breach of any provision of this Purchase Order constitute a waiver of any succeeding breach of the same or any other provision.
e. The indemnity obligations contained in these Terms and Conditions shall remain operative and in full force and effect, regardless of any completion, termination or cancellation of any particular Purchase Order.
f. Vendor may not transfer, assign or sublicense all or any part of a Purchase Order or any part of these Terms and Conditions, except with the express prior written consent of Evolution.
g. All terms of a Purchase Order and all provisions of these Terms and Conditions shall be binding upon and inure to the benefit of the parties hereto, including any successors or permitted assigns.
h. These Terms and Conditions, with each Purchase Order, cancels and supersedes all prior negotiations and understandings between the parties relating hereto, and embodies the entire agreement and understanding between such parties with respect to the matters covered hereby, notwithstanding the delivery of any other terms and conditions and/or similar documents or agreements by Vendor to Evolution, unless the parties have entered into a formal distribution/reseller agreement. If there is a conflict between a provision in these Terms and Conditions and a term in the Vendor’s documents, the provisions in these Terms and Conditions shall govern and control. The terms of a Purchase Order and the provisions of these Terms and Conditions may be amended only by an instrument in writing executed by Vendor and a duly authorized executive officer of Womack Machine Supply Co.